(2023) BLUE NOTES - Political and Public International Law

ATENEO CENTRAL BAR OPERATIONS 2023

POLITICAL LAW & PUBLIC INTERNATIONAL LAW

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TABLE OF CONTENTS

PART ONE: POLITICAL LAW POWERS AND STRUCTURE OF THE GOVERNMENT I. PRELIMINARY CONCEPTS ............................................................................................................... 16 A.

D. E.

NATURE OF A CONSTITUTION ................................................................................................. 16 1. PARTS ............................................................................................................................................ 16 2. MANNER OF INTERPRETATION (SELF-EXECUTING AND NON-EXECUTING CHARACTER) ............. 16 3. PROCESS OF CHANGE (AMENDMENTS AND REVISIONS) .............................................................. 19 THE PHILIPPINES AS A STATE ................................................................................................... 22 1. ELEMENTS (PEOPLE, TERRITORY, GOVERNMENT, AND CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES) ....................................................................................................................... 22 2. DISTINCTION BETWEEN INTERNAL AND EXTERNAL SELF-DETERMINATION ................................ 23 FUNDAMENTAL POWERS OF THE STATE .................................................................................. 24 1. POLICE POWER .............................................................................................................................. 25 2. EMINENT DOMAIN ........................................................................................................................ 25 3. TAXATION ...................................................................................................................................... 26 RELEVANCE OF THE DECLARATION OF PRINCIPLES AND STATE POLICIES ................................... 27 DYNAMICS AMONG THE BRANCHES OF GOVERNMENT ........................................................... 27 1. SEPARATION OF POWERS ............................................................................................................. 27 2. SYSTEM OF CHECKS AND BALANCES ............................................................................................. 27 3. DELEGATION OF POWERS ............................................................................................................. 27 STATE IMMUNITY ................................................................................................................... 29 1. BASIS.............................................................................................................................................. 29 2. EXCEPTIONS................................................................................................................................... 30 THE NATIONAL TERRITORY ..................................................................................................... 30 1. SCOPE (TERRESTRIAL, AERIAL, AND FLUVIAL DOMAINS) .............................................................. 30 2. ARCHIPELAGIC DOCTRINE ............................................................................................................. 31

II. LEGISLATIVE DEPARTMENT........................................................................................................... 35 A. NATURE OF LEGISLATIVE POWER.................................................................................................. 36 1. DERIVATIVE AND DELEGATED POWER .......................................................................................... 36 2. PLENARY CHARACTER.................................................................................................................... 36 3. LIMITATIONS ................................................................................................................................. 36 4. LAW-MAKING DISTINGUISED FROM LAW-EXECUTION................................................................. 37 5. EXCEPTIONS TO NON-DELEGABILITY............................................................................................. 39 6. LEGISLATIVE POWER OF THE PEOPLE THROUGH INITIATIVE AND REFERENDUM ........................ 39 B. BICAMERAL CONGRESS ........................................................................................................... 40 1. SENATE .......................................................................................................................................... 40 2. HOUSE OF REPRESENTATIVES ....................................................................................................... 40 C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS ............................................ 51

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QUORUM AND VOTING MAJORITIES ...................................................................................... 53 DISCIPLINE OF MEMBERS ........................................................................................................ 54 PROCESS OF LAW-MAKING ..................................................................................................... 55 1. FUNCTION OF THE BICAMERAL CONFERENCE COMMITTEE ......................................................... 55 2. LIMITATIONS ON LEGISLATIVE POWER ......................................................................................... 55 RULES ON APPROPRIATION AND RE-ALIGNMENT .................................................................... 58 ELECTORAL TRIBUNALS AND COMMISSION ON APPOINTMENTS .............................................. 59 1. COMPOSITION ............................................................................................................................... 59 2. POWERS AND JURISDICTION ......................................................................................................... 59 POWERS OF CONGRESS .......................................................................................................... 62 1. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS ................................................................. 62 2.NON-LEGISLATIVE .......................................................................................................................... 65

III. EXECUTIVE DEPARTMENT ............................................................................................................ 68 A.

D. E. F.

NATURE OF EXECUTIVE POWER .............................................................................................. 69 1. IN RELATION TO THE IMPLEMENTATION OF LAWS ...................................................................... 69 2. EXPRESS OR IMPLIED ..................................................................................................................... 70 CONCEPT OF PRESIDENTIAL IMMUNITY................................................................................... 71 1. CONDUCT COVERED ...................................................................................................................... 71 2. WAIVER AND EXCEPTIONS ............................................................................................................ 71 CONCEPT OF EXECUTIVE PRIVILEGE ......................................................................................... 71 1. TYPES ............................................................................................................................................. 72 2. WHO MAY INVOKE ........................................................................................................................ 72 QUALIFICATIONS, ELECTION, TERM OF THE PRESIDENT AND VICE-PRESIDENT, AND RULES .... 73 OTHER PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS .................................................... 75 1. DISQUALIFICATIONS ...................................................................................................................... 75 POWERS OF THE PRESIDENT ................................................................................................... 76 1. EXECUTIVE AND ADMINISTRATIVE POWERS................................................................................. 76 2. POWER OF APPOINTMENT............................................................................................................ 76 3. POWER OF CONTROL AND SUPERVISION ..................................................................................... 80 4. EMERGENCY POWERS ................................................................................................................... 81 5. COMMANDER-IN-CHIEF POWERS ................................................................................................. 82 6. PARDONING POWERS ................................................................................................................... 86 7. FOREIGN RELATIONS POWERS ...................................................................................................... 86 8. POWERS RELATIVE TO APPROPRIATION MEASURES .................................................................... 88 9. VETO POWERS ............................................................................................................................... 89

IV. JUDICIAL DEPARTMENT ............................................................................................................... 91 A. B.

CONCEPT OF JUDICIAL POWER ................................................................................................ 91 JUDICIAL REVIEW.................................................................................................................... 92 1. REQUISITES .................................................................................................................................... 92 2. POLITICAL QUESTION DOCTRINE .................................................................................................. 95 3. MOOT QUESTIONS ........................................................................................................................ 96 4. OPERATIVE FACT DOCTRINE.......................................................................................................... 96 JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY ................................................................. 96 Page 7 of 479

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APPOINTMENTS TO THE JUDICIARY......................................................................................... 98 1. QUALIFICATIONS OF MEMBERS .................................................................................................... 98 2. JUDICIAL AND BAR COUNCIL ......................................................................................................... 99 THE SUPREME COURT ........................................................................................................... 101 1. COMPOSITION, POWERS, AND FUNCTIONS................................................................................ 101 2. EN BANC AND DIVISION CASES ................................................................................................... 103 3. ADMINISTRATIVE SUPERVISION OVER LOWER COURTS ............................................................. 104 4. ORIGINAL AND APPELLATE JURISDICTION .................................................................................. 105

VI. CONSTITUTIONAL COMMISSIONS .............................................................................................. 109 A. B. C. D. E. F.

CONSTITUTIONAL SAFEGUARDS TO ENSURE INDEPENDENCE OF COMMISSIONS .................... 109 COMMON PROVISIONS......................................................................................................... 110 POWERS, FUNCTIONS, AND JURISDICTION ............................................................................ 111 COMPOSITION AND QUALIFICATION OF MEMBERS ............................................................... 119 PROHIBITED OFFICES AND INTERESTS.................................................................................... 120 JUDICIAL REVIEW OF FINAL ORDERS, RESOLUTIONS, AND DECISIONS..................................... 120 1. RENDERED IN THE EXERCISE OF QUASI-JUDICIAL FUNCTIONS ................................................... 121 2. RENDERED IN THE EXERCISE OF ADMINISTRATIVE FUNCTIONS ................................................. 121

THE CITIZEN IN RELATION TO THE STATE I. CITIZENSHIP ................................................................................................................................ 123 A. B. C. D. E.

WHO ARE FILIPINOS ............................................................................................................. 123 MODES OF ACQUIRING CITIZENSHIP ..................................................................................... 125 LOSS AND REACQUISITION OF CITIZENSHIP ........................................................................... 127 DUAL CITIZENSHIP AND DUAL ALLEGIANCE ........................................................................... 129 FOUNDLINGS ........................................................................................................................ 129

II. BILL OF RIGHTS .......................................................................................................................... 132 A. B.

PRIVATE ACTS AND THE BILL OF RIGHTS ................................................................................ 133 DUE PROCESS OF LAW .......................................................................................................... 133 1. PROCEDURAL AND SUBSTANTIVE ............................................................................................... 133 2. VOID-FOR-VAGUENESS ............................................................................................................... 135 3. JUDICIAL AND ADMINISTRATIVE DUE PROCESS.......................................................................... 136 EQUAL PROTECTION ............................................................................................................. 140 1. REQUISITES FOR VALID CLASSIFICATION..................................................................................... 141 2. STANDARDS OF JUDICIAL REVIEW .............................................................................................. 143 ARRESTS, SEARCHES AND SEIZURES ...................................................................................... 144 1. REQUISITES OF A VALID WARRANT ............................................................................................. 144 2. WARRANTLESS ARRESTS AND DETENTION ................................................................................. 150 3. WARRANTLESS SEARCHES ........................................................................................................... 153 4. ADMINISTRATIVE ARRESTS ......................................................................................................... 161 5. EXCLUSIONARY RULE................................................................................................................... 162 PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE ..................................................... 163 Page 8 of 479

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1. PRIVATE AND PUBLIC COMMUNICATIONS ................................................................................. 163 2. INTRUSION, WHEN ALLOWED ..................................................................................................... 163 3. EXCLUSIONARY RULE................................................................................................................... 164 FREEDOM OF SPEECH AND EXPRESSION ................................................................................ 166 1. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT ................................................................. 166 2. CONTENT-BASED AND CONTENT NEUTRAL REGULATIONS ........................................................ 168 3. FACIAL CHALLENGES AND OVERBREADTH DOCTRINE ................................................................ 168 4. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION .................................. 170 5. STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA ...................................................... 172 6. COMMERCIAL SPEECH................................................................................................................. 174 7. UNPROTECTED SPEECH ............................................................................................................... 175 FREEDOM OF RELIGION ........................................................................................................ 180 1. NON-ESTABLISHMENT CLAUSE AND FREE EXERCISE CLAUSES ................................................... 181 2. BENEVOLENT NEUTRALITY AND CONSCIENTIOUS OBJECTORS .................................................. 186 3. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION .................................. 188 LIBERTY OF ABODE ANDFREEDOM OF MOVEMENT ............................................................... 188 1. SCOPE AND LIMITATIONS............................................................................................................ 188 2. WATCH-LIST AND HOLD DEPARTURE ORDERS ............................................................................ 189 RIGHT TO INFORMATION ...................................................................................................... 190 1. SCOPE AND LIMITATIONS............................................................................................................ 190 EMINENT DOMAIN ............................................................................................................... 193 1. CONCEPT ..................................................................................................................................... 193 2. PUBLIC USE .................................................................................................................................. 195 3. JUST COMPENSATION ................................................................................................................. 196 4. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ...................................................................... 199 RIGHT TO ASSOCIATION ........................................................................................................ 201 NON-IMPAIRMENT OF CONTRACTS ....................................................................................... 203 ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS .............................................. 203 RIGHTS UNDER CUSTODIAL INVESTIGATION .......................................................................... 204 1. MEANING OF CUSTODIAL INVESTIGATION ................................................................................. 204 2. RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION........................................................ 206 3. REQUISITES OF A VALID WAIVER ................................................................................................ 208 4. EXCLUSIONARY DOCTRINE .......................................................................................................... 209 RIGHTS OF THE ACCUSED ...................................................................................................... 210 1. CRIMINAL DUE PROCESS ............................................................................................................. 210 2. BAIL ............................................................................................................................................. 211 3. PRESUMPTION OF INNOCENCE ................................................................................................... 214 4. RIGHT TO BE HEARD .................................................................................................................... 215 5. RIGHT TO COUNSEL ..................................................................................................................... 216 6. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION .................................. 216 7. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL...................................................................... 217 8. RIGHT OF CONFRONTATION ....................................................................................................... 218 9. RIGHT TO COMPULSORY PROCESSES .......................................................................................... 219 10.TRIAL IN ABSENTIA..................................................................................................................... 219 RIGHT TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF CASES .............................................. 220 RIGHT AGAINST SELF-INCRIMINATION .................................................................................. 222 1. 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2. IMMUNITY STATUTES.................................................................................................................. 225 RIGHT AGAINST DOUBLE JEOPARDY ...................................................................................... 227 1. REQUISITES AND LIMITATIONS ................................................................................................... 227 RIGHT AGAINST INVOLUNTARY SERVITUDE ........................................................................... 231 RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS ...................... 232 NON-IMPRISONMENT FOR DEBTS ......................................................................................... 233 EX POST FACTO LAWS AND BILLS OF ATTAINDER .................................................................. 233 1. EX POST FACTO LAW ................................................................................................................... 233 2. BILL OF ATTAINDER ..................................................................................................................... 235 WRITS OF HABEAS CORPUS, KALIKASAN, HABEAS DATA, AND AMPARO ............................... 235 1. WRIT OF HABEAS CORPUS .......................................................................................................... 235 2. WRIT OF KALIKASAN (RULE 7, A.M. NO. 09-6-8-SC).................................................................... 237 3. WRIT OF HABEAS DATA ............................................................................................................... 238 4. WRIT OF AMPARO ....................................................................................................................... 238

III. SOCIAL JUSTICE AND HUMAN RIGHTS ........................................................................................ 242 A. B. C.

CONCEPT OF SOCIAL JUSTICE ................................................................................................ 242 ECONOMIC, SOCIAL, AND CULTURAL RIGHTS ......................................................................... 243 URBAN LAND REFORM AND HOUSING ........................................................................................... 246 COMMISSION ON HUMAN RIGHTS ........................................................................................ 247 1. POWERS AND FUNCTIONS [IAC-PE2RM-IRA] .............................................................................. 247 2. COMPOSITION AND QUALIFICATION OF MEMBERS ................................................................... 248

IV. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE, AND SPORTS .......................................... 250 A.

ACADEMIC FREEDOM ........................................................................................................... 250

NATIONAL ECONOMY AND PATRIMONY I. REGALIAN DOCTRINE .................................................................................................................. 253 II. PUBLIC TRUST DOCTRINE............................................................................................................ 253 III. NATIONALIST AND CITIZENSHIP REQUIREMENT PROVISIONS ..................................................... 254 IV. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES ............................. 256 V. ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC AND PRIVATE LANDS ............................. 258 VI CONCEPT OF ANCESTRAL DOMAIN ............................................................................................. 259 VII. PRACTICE OF PROFESSIONS ...................................................................................................... 259

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LAW ON PUBLIC OFFICERS, ADMINISTRATIVE LAW, ELECTION LAW & LOCAL GOVERNMENT I. LAW ON PUBLIC OFFICERS ........................................................................................................... 261 A. B. C. D. E. F. G. H.

I. J. K. L.

GENERAL PRINCIPLES ............................................................................................................ 261 MODES OF ACQUIRING TITLE TO PUBLIC OFFICE .................................................................... 263 MODES AND KINDS OF APPOINTMENT .................................................................................. 265 ELIGIBILITY AND QUALIFICATION REQUIREMENTS ................................................................. 267 DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS ............................................................. 270 POWERS AND DUTIES OF PUBLIC OFFICERS ........................................................................... 273 RIGHTS OF PUBLIC OFFICERS ................................................................................................. 274 LIABILITIES OF PUBLIC OFFICERS............................................................................................ 276 1. PREVENTIVE SUSPENSION AND BACK SALARIES ......................................................................... 278 2. ILLEGAL DISMISSAL, REINSTATEMENT AND BACK SALARIES ...................................................... 280 IMMUNITY OF PUBLIC OFFICERS ........................................................................................... 280 DISTINGUISH: DE FACTO AND DE JURE OFFICERS ................................................................... 281 TERMINATION OF OFFICIAL RELATION .................................................................................. 282 THE CIVIL SERVICE ................................................................................................................ 285 1. SCOPE .......................................................................................................................................... 285 2. APPOINTMENTS TO CIVIL SERVICE .............................................................................................. 285 3. PERSONNEL ACTIONS .................................................................................................................. 286 ACCOUNTABILITY OF PUBLIC OFFICERS.................................................................................. 287 1. TYPES OF ACCOUNTABILITY ........................................................................................................ 287 2. DISCIPLINE ................................................................................................................................... 289 3. IMPEACHMENT V. QUO WARRANTO .......................................................................................... 292 4. THE OMBUDSMAN AND THE OFFICE OF THE SPECIAL PROSECUTOR ......................................... 294 5. THE SANDIGANBAYAN................................................................................................................. 295 TERM LIMITS ........................................................................................................................ 298

II. ADMINISTRATIVE LAW ............................................................................................................... 303 A. B. C. D.

GENERAL PRINCIPLES ............................................................................................................ 303 ADMINISTRATIVE AGENCIES ................................................................................................. 304 POWERS OF ADMINISTRATIVE AGENCIES .............................................................................. 306 JUDICIAL RECOURSE AND REVIEW ......................................................................................... 325

III. ELECTION LAW .......................................................................................................................... 333 A.

SUFFRAGE ............................................................................................................................ 333 1. QUALIFICATION AND DISQUALIFICATION OF VOTERS ................................................................ 333 2. REGISTRATION AND DEACTIVATION ........................................................................................... 335 3. INCLUSION AND EXCLUSION PROCEEDINGS ............................................................................... 337 4. LOCAL AND OVERSEAS ABSENTEE VOTING ................................................................................. 338 5. DETAINEE VOTING ....................................................................................................................... 340 CANDIDACY .......................................................................................................................... 341 1. QUALIFICATIONS AND DISQUALIFICATIONS OF CANDIDATES .................................................... 341 2. FILING OF CERTIFICATES OF CANDIDACY .................................................................................... 345 Page 11 of 479

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CAMPAIGN ........................................................................................................................... 356 1. PREMATURE CAMPAIGNING ....................................................................................................... 356 2. PROHIBITED CONTRIBUTIONS ..................................................................................................... 356 3. LAWFUL AND PROHIBITED ELECTION PROPAGANDA ................................................................. 357 4. LIMITATIONS ON EXPENSES ........................................................................................................ 361 5. STATEMENT OF CONTRIBUTIONS AND EXPENSES ...................................................................... 362 REMEDIES AND JURISDICTION............................................................................................... 363 1. PETITION NOT TO GIVE DUE COURSE OR CANCEL A CERTIFICATE OF CANDIDACY .................... 363 2. PETITION FOR DISQUALIFICATION .............................................................................................. 364 3. FAILURE OF ELECTION ................................................................................................................. 368 4. PRE-PROCLAMATION CONTROVERSY ......................................................................................... 369 5. ELECTION PROTEST ..................................................................................................................... 373 6. QUO WARRANTO ........................................................................................................................ 377 7. RECALL ......................................................................................................................................... 378 PROSECUTION FOR ELECTION OFFENSES [EXCLUDE: PENAL PROVISIONS] ............................... 379

IV. LOCAL GOVERNMENT............................................................................................................... 382 A.

B. C. D.

PUBLIC CORPORATIONS ........................................................................................................ 382 1. CONCEPT; DISTINGUISHED FROM GOCCS................................................................................... 382 2. CLASSIFICATIONS......................................................................................................................... 383 PRINCIPLES OF LOCAL AUTONOMY ....................................................................................... 387 AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT ................ 395 LOCAL GOVERNMENT UNIT (LGU) ......................................................................................... 402 1. POWERS OF LOCAL GOVERNMENT UNITS, IN GENERAL............................................................. 402 2. LIABILITY OF LOCAL GOVERNMENT UNITS.................................................................................. 428 3. SETTLEMENT OF BOUNDARY DISPUTES ...................................................................................... 432 4. VACANCIES AND SUCCESSION OF LOCAL OFFICIALS ................................................................... 433 5. RECALL ......................................................................................................................................... 436 6. TERM LIMITS ............................................................................................................................... 438

PART TWO: PUBLIC INTERNATIONAL LAW PRELIMINARIES .............................................................................................................................. 441 I. SOURCES OF OBLIGATIONS .......................................................................................................... 442 A.

C. D.

TREATIES .............................................................................................................................. 442 1. CONCEPT OF JUS COGENS (PEREMPTORY NORMS OF INTERNATIONAL LAW) .......................... 444 2. RESERVATIONS, WITHDRAWAL, TERMINATION, AND REBUS SIC STANTIBUS............................ 444 CUSTOMARY INTERNATIONAL LAW ...................................................................................... 445 1. ELEMENTS ................................................................................................................................... 446 2. OBLIGATIONS ERGA OMNES ....................................................................................................... 447 GENERAL PRINCIPLES OF LAW ............................................................................................... 448 APPLICATION OF INTERNATIONAL DOMESTIC COURTS .......................................................... 448 1. MONISM ...................................................................................................................................... 448 2. DUALISM ..................................................................................................................................... 449 Page 12 of 479

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3. INVERTED MONISM..................................................................................................................... 449 4. HARMONIZATION ........................................................................................................................ 449 II. INTERNATIONAL LEGAL PERSON ................................................................................................. 450 A.

B. C. D.

STATES ................................................................................................................................. 450 1. ELEMENTS ................................................................................................................................... 450 2. RECOGNITION OF STATES AND GOVERNMENT .......................................................................... 451 NON-STATE ENTITIES ............................................................................................................ 452 INTERNATIONAL ORGANIZATIONS ........................................................................................ 453 STATUS OF INDIVIDUALS AND CORPORATIONS ..................................................................... 454

III. JURISDICTION ........................................................................................................................... 455 A.

B. C.

BASIS OF JURISDICTION ........................................................................................................ 455 1. TERRITORIALITY PRINCIPLE ......................................................................................................... 455 2. NATIONALITY PRINCIPLE ............................................................................................................. 456 3. PROTECTIVE PRINCIPLE ............................................................................................................... 456 4. PASSIVE PERSONALITY PRINCIPLE ............................................................................................... 456 TITLE TO TERRITORY ............................................................................................................. 457 ADJACENT MARITIME SEAS ................................................................................................... 457 1. TERRITORIAL SEA ......................................................................................................................... 457 2. CONTIGUOUS ZONE .................................................................................................................... 458 3. EXCLUSIVE ECONOMIC ZONE ...................................................................................................... 458 4. CONTINENTAL SHELF ................................................................................................................... 459 JURISDICTION OVER PERSONS AND ECONOMIC ACTVITY ....................................................... 460 1. CRIMINAL JURISDICTION ............................................................................................................. 460 2. CIVIL JURISDICTION ..................................................................................................................... 462 3. IMMUNITY FROM JURISDICTION ................................................................................................ 462 4. AREAS NOT SUBJECT TO JURISDICTION OF INDIVIDUAL STATES ................................................ 464

IV. INTERNATIONAL RESPONSIBILITY .............................................................................................. 466 A. B. C. D. E. F.

CONCEPT OF IMPUTABILITY OF INTERNATIONALLY WRONGFUL ACT OR OMISSION ................ 466 REPARATION ........................................................................................................................ 468 INTERNATIONAL PROTECTION OF HUMAN RIGHTS ................................................................ 469 1. REMEDIES UNDER TREATY-BASED MECHANISMS ...................................................................... 469 INTERNATIONAL MINIMUM STANDARD AND NATIONAL TREATMENT ................................... 471 ENVIRONMENTAL HARM ...................................................................................................... 473 1. PRECAUTIONARY PRINCIPLE ....................................................................................................... 473 INTERNATIONAL CLAIMS ...................................................................................................... 473

V. DISPUTE RESOLUTION ................................................................................................................ 474 A. B.

LEGALITY OF THE USE OF FORCE ............................................................................................ 474 CONCEPT OF INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS ....................... 475

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1. THE ROLE OF THE INTERNATIONAL CRIMINAL COURT ............................................................... 477 JUDICIAL AND ARBITRAL SETTLEMENT .................................................................................. 477 1. INTERNATIONAL COURT OF JUSTICE ........................................................................................... 477 2. PERMANENT COURT OF ARBITRATION ....................................................................................... 478

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I. PRELIMINARY CONCEPTS TOPIC OUTLINE UNDER THE SYLLABUS: A. NATURE OF A CONSTITUTION 1. Parts 2. Manner of Interpretation (SelfExecuting and Non-Executing Character) 3. Process of Change (Amendments and Revisions) B. THE PHILIPPINES AS A STATE 1. Elements (People, Territory, Government, and Capacity to Enter into Relations With Other States) 2. Distinction Between Internal and External Self-Determination C. FUNDAMENTAL POWERS OF THE STATE 1. Police Power 2. Eminent Domain 3. Taxation i. Constitutional Exemption Principles D. RELEVANCE OF THE DECLARATION OF PRINCIPLES AND STATE POLICIES E. DYNAMICS AMONG THE BRANCHES OF GOVERNMENT 1. Separation of Powers 2. System of Checks and Balances 3. Delegation of Powers F. STATE IMMUNITY 1. Basis 2. Exceptions G. THE NATIONAL TERRITORY 1. Scope (Terrestrial, Aerial, and Fluvial Domains) 2. Archipelagic Doctrine

A. NATURE OF A CONSTITUTION 1. PARTS Essential Parts of a Written Constitution 1) Constitution of Liberty - sets forth the fundamental civil and political rights of citizens, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. (PHIL. CONST., art. III.) 2) Constitution of Government - outlines the organization of government, enumerating its powers, laying down rules regarding its administration, and defining the electorate. (PHIL. CONST., art. VI-IX.) 3) Constitution of Sovereignty - the mode or procedure with which formal changes in the fundamental law may be made. (PHIL. CONST., art. XVII.)

2. MANNER OF INTERPRETATION (SELFEXECUTING AND NONEXECUTING CHARACTER) Basic Principles of Constitutional Construction 1. Verba legis – whenever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed; 2. Ratio legis est anima – where there is ambiguity, the words of the Constitution should be interpreted in accordance with the intent of the framers; 3. Ut magis valeat quam pereat – the Constitution should be interpreted as a whole (Francisco v. House of Representatives, G.R. No. 160261, Nov. 10, 2003) Ordinary Meaning To the extent possible, words must be given their ordinary meaning; this is consistent with the basic precept of verba legis. The Constitution is truly a public document in that it was ratified and approved by a direct act of the People exercising their right of suffrage, they approved of it through a plebiscite. The preeminent consideration in reading the Constitution, therefore, is the People's consciousness: that is, popular, rather than technical-legal, understanding. (David v. SET, G.R. No. 221538, Sept. 20, 2016) Ascertainment of Intent One fundamental principle of constitutional construction is that the intent of the framers of the

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organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution, it may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers. (Nitafan v. CIR, G.R. No. 78780, July 23, 1987) In case of doubt, the provisions should be considered: 1. Self-executing (Manila Prince Hotel v GSIS, G.R. No. 122156, Feb. 3, 1997); 2. Mandatory rather than directory (Tanada v Cuenco, G.R. No. L-10250, Feb. 28, 1957); and 3. Prospective rather than retroactive (Peralta v Director of Prisons, G.R. No. L-49, Nov. 12, 1945). Doctrine of Constitutional Supremacy If a law or a contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or executive branch of the government or entered into by private persons for private purposes, is null and void, and without any force and effect. Since the Constitution is the fundamental and supreme law of the land, it is deemed written in every statute and every contract. (NACHURA) Self-Executing and Non-Self Executing Provisions 1. Self-Executing - provisions which are complete in itself and become operative without the aid of supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected (Manila Prince Hotel v GSIS, G.R. No. 122156, Feb. 3, 1997). 2.

Non-Self-Executing - provisions which lay down a general principle.

General Rule: The provisions of the Constitution are considered self-executing, and do not require future legislation for their enforcement. Exceptions: 1. The principles found in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its

enactment of laws (Tondo Medical v. Court of Appeals, G.R. No. 167324, July 17, 2007). The social and economic rights guaranteed in Article XIII are also non-self-executing provisions. (Bernas, Constitutional Rights and Social Demands, 1, 2010).

Exceptions to the Exceptions: 1. Article II, Sec. 16 - The right to a balanced and healthful ecology is self-executory and does not need an implementing legislation (Oposa v. Factoran, G.R. No. 101083, July 30, 1993). 2. Article II, Sec. 28 – The duty of full public disclosure is self-executory (Province of North Cotabato v. GRP, G.R. No. 183591, Oct. 14, 2008). 3. Article II, Sec. 15 - The right to health is also self-executing (Imbong v. Ochoa, G.R. No. 204819, Apr. 8, 2014). NOTE: Whether or not a provision is self-executing depends on the language of the provision. Most of the provisions in Article II are couched in non-selfexecuting language. The 1987 provisions were written in the same spirit as their counterparts in the 1935 and 1973 Constitutions; but there was an attempt to distinguish “principles” from “policies”: 1.

Principles - Binding rules which must be observed in the conduct of government.

Policies - Guidelines for the orientation of the state. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 37, 2009, citing IV RECORD OF THE CONSTITUTIONAL COMMISSION 768 and 580).

In fact, however, the distinction is of little significance because not all of the six “principles” are selfexecutory and some of the “policies” already anchor justiciable rights (Id.) Generally Accepted Principles of International Law Principles based on natural justice common to most national systems of law. Examples: 1. The right of an alien to be released on bail while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him (Mejoff v. Director of Prisons, G.R. No. L-4254, Sept. 26, 1951).

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POLITICAL LAW & PUBLIC INTERNATIONAL LAW

The right of a country to establish military commissions to try war criminals (Kuroda v. Jalandoni, G.R. No. L-2662, Mar. 26, 1949). The Vienna Convention on Road Signs and Signals (Agustin v. Edu, G.R. No. L-49112, Feb. 2, 1979). Duty to protect the premises of embassies and legations (Reyes v. Bagatsing, G.R. No. L-65366, Nov. 9, 1983). Pacta sunt servanda – international agreements must be performed in good faith (Tañada v. Angara, G.R. No. 118295, May 2, 1997).

The Philippines renounces aggressive war as an instrument of national policy, but allows for a defensive war. Civilian Authority Article II, Section 3 of the Constitution states that “[c]ivilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the People and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.” Civilian Authority - The head of the armed forces is a civilian president and the primary purpose of AFP is to serve and protect the people. Mark of Sovereignty - Positively, the military is the guardian of the people and of the integrity of the national territory and therefore ultimately of the majesty of the law. Negatively, it is an expression against military abuses. Freedom from Nuclear Weapons DOES NOT PROHIBITS PROHIBIT Possession, control Peaceful use and manufacture of nuclear energy nuclear weapons; nuclear arms tests

Exceptions to policy against nuclear weapons may be made by political departments, but must be justified by demands of national interest. Social Justice The State shall promote social justice in all phases of national development. Social Justice has been defined as the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated (Calalang v. Williams, G.R. No. 47800, Dec. 2, 1940).

Protection of the Life of the Unborn It is not an assertion that the unborn is a legal person. It is not an assertion that the life of the unborn is placed exactly on the same level of the life of the mother. Hence, when it is necessary to save the life of the mother, the lie of the unborn may be sacrificed. The Roe v. Wade doctrine allowing abortion up to the 6th month of pregnancy cannot be adopted in the Philippines human lives are sacred from the moment of conception, and that destroying those new lives is never licit, no matter what the purported good outcome would be (Imbong vs. Ochoa, G.R. No. 204819, April 8, 2014). Right to a Balanced and Healthful Ecology The right to a balanced and healthful ecology is not less important than any of the civil and political rights enumerated in the Bill of Rights. The right to a balanced and healthful ecology carries with it an intergenerational responsibility to care for and protect the environment (Oposa v. Factoran, G.R. No. 101083, Jul. 30, 1993). In environmental cases, the precautionary principle is used when there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect. The precautionary principle, as a principle of last resort, shifts the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo (International Service for the Acquisition of Agri-Biotech v. Greenpeace, G.R. No. 209271, Dec. 8, 2015). Elements for the Application of Precautionary Principle: (UPP) 1. Uncertainty 2. Possibility of irreversible harm 3. Possibility of serious harm (International Service for the Acquisition of AgriBiotech v. Greenpeace, G.R. No. 209271, Dec. 8, 2015) Standing to file an action for violation of environmental laws The enactment of the Rules of Procedure for Environmental Cases enabled litigants enforcing environmental rights to file their cases as citizen suits. It liberalized standing for all cases filed enforcing environmental laws and collapses the traditional rule on personal and direct interest, based on the principle that humans are stewards of nature. The need to give animals legal standing in environmental cases has been eliminated by the

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Rules since any Filipino citizen, as a steward of nature, is allowed to bring a suit to enforce environmental laws (Resident Marine Mammals v. Reyes, G.R. No. 180771, Apr. 21, 2015). Requisites for the Issuance of Writ of Kalikasan (CPE) 1. There is an actual or threatened violation of the Constitutional right to a balance and healthful ecology; 2. The actual or threatened violation arises from an unlawful act or omission of a Public official or employee, or private individual or entity; 3. The actual or threatened violation involves or will lead to an Environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities of provinces. (LNL Archipelago Minerals Inc v. Agham Party List, GR 209165, Apr. 12, 2016)

3. PROCESS OF CHANGE (AMENDMENTS AND REVISIONS) (PHIL CONST., art. XVII.) Amendment ● An alteration of one or a few specific separable provisions of the Constitution. The changes brought about by amendments will not affect the other provisions of the Constitution (Bernas, 1987 Philippine Constitution: A Commentary, 1345, 2009). ● An addition or change within the lines of the original constitution as will effect an improvement, or better carry out the purpose for which it was framed; a change that adds, reduces or deletes without altering the basic principles involved; affects only the specific provision being amended. (Lambino v. COMELEC, G.R. No. 174153, Oct. 25, 2006) Examples: ● A change reducing the voting age from 18 years to 15 years; ● A change reducing Filipino ownership of mass media companies from 100% to 60%; a change requiring a college degree as an additional qualification for election to the Presidency (Lambino v. COMELEC, G.R. No. 174153, Oct. 25, 2006). Revision ● A re-examination of the entire Constitution or of provisions which have over-all implications for the entire Constitution to

●

determine how and to what extent it should be altered. A revision implies substantive change, affecting the Constitution as a whole (Bernas, 1987 Philippine Constitution: A Commentary, 1345, 2009). A change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances; alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution.

Examples: ● Altering the principle of separation of powers or the system of checks-and-balances; ● A switch from the presidential system to a parliamentary system; ● A switch from a bicameral system to a unicameral system (Lambino v. COMELEC, G.R. No. 174153, Oct. 25, 2006). Two-part test in determining whether a proposal involves an amendment or revision: 1. Quantitative test — The court examines only the number of provisions affected and does not consider the degree of the change. Whether the proposed change is so extensive in its provision as to change directly the “substance entirety” of the Constitution by the deletion or alteration of numerous provisions. 2. Qualitative test — Inquires into the qualitative effects of the proposed change in the Constitution. The main inquiry is whether the change will “accomplish such farreaching changes in the nature of our basic governmental plan as to amount to a revision” (Lambino v. COMELEC, G.R. No. 174153, Oct. 25, 2006). Necessary Steps to Give Effect to Amendments or Revisions (PSR): 1. Proposal of amendments or revisions by the proper constituent assembly 2. Submission of the proposed amendments or revisions to the people 3. Ratification Ways of Proposing Amendments (CCP) 1. Constituent Assembly (ConAss) ● Acting as a Constituent Assembly, the Congress by itself may propose amendments by 3/4 vote of all its members.

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POLITICAL LAW & PUBLIC INTERNATIONAL LAW Philippine Constitution: A Comprehensive Reviewer, 545, 2011).

NOTE: ● The power of Congress to propose amendments is NOT part of its ordinary legislative power. Congress possesses constituent power only because it has been specifically given that power by and under the conditions of Article XVII (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 544, 2011, citing Gonzales v. COMELEC, G.R. No. L-28196, Nov. 9, 1967). ● Each House may separately formulate amendments by a vote of 3/4 of all its members, and then pass it on to the other house for similar process. Nothing is said about joint sessions (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 544, 2011). ● Even in a joint session, they must still vote separately because Congress is bicameral. 2. Constitutional Convention (ConCon) ● Congress may call a ConCon by a 2/3 vote of all its members, or ● By a majority vote of all its members, Congress may submit to the electorate the question of calling a ConCon. NOTE: ● The choice of either a ConAss or ConCon for the purpose of initiating amendments or revisions is left to the discretion of Congress. In other words, it is a political question. ● The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for voting requirements. ● If Congress, acting as a ConAss, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress — exercising its ordinary legislative power — may supply such details. But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assembly (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 544-545, 2011). ● Congress, as a ConAss and the ConCon, has no power to appropriate money for their expenses. Money may be spent from the treasury only pursuant to an appropriation made by law. However, the constitutional convention is free to dispose the funds appropriated by Congress for the Convention’s operation (Bernas, The 1987

3. People’s Initiative For a valid People’s Initiative, there must be: 1. Petition to propose such amendments must be signed by at least 12% of all registered voters. 2. Every legislative district must be represented by at least 3% of the registered voters therein. ●

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While the substance of the proposals made by each type of ConAss is not subject to judicial review, the manner the proposals were made is subject to judicial review. Since a ConAss owes their existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution, for example: o Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly). o Whether the approved proposals were properly submitted to the people for ratification.

NOTE: ● The electorate can propose through initiative ONLY amendments, since it would be practically impossible to have an over-all review of the Constitution through action by the entire electoral population. ● No amendment through a People’s Initiative shall be authorized within 5 years following the ratification of the 1987 Constitution (Feb. 2, 1987) nor more often than once every 5 years. Congress shall provide for the implementation of the exercise of this right. (Art. XVII, Sec.2) ● Revision of the Constitution cannot be effected through initiative and referendum. Formulation of provisions revising the Constitution requires both cooperation and debate which can only be done through a collegial body. (BERNAS) Ways of Proposing Revisions 1. By Congress, upon a vote of 3/4 of its members 2. By a Constitutional Convention Doctrine of Proper Submission A plebiscite may be held on the same day as a regular election (Gonzales v. COMELEC, G.R. No. L28196, Nov. 9, 1967). The entire Constitution must

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be submitted for ratification at one plebiscite only. The people must have a proper “frame of reference”. (Tolentino v. COMELEC, G.R. No. L-34150, Oct. 16, 1971). No “piecemeal submission,” e.g. submission of age amendment ahead of other proposed amendments. (Lambino v. COMELEC, G.R. No.174153, Oct. 25, 2006) N.B. The process of revision is the same in all respects except that it cannot be proposed via a People’s Initiative. (Id.) Judicial Review of Amendments The validity of the process of amendment is not a political question because the Court must review if constitutional processes were followed. (Id.) Ratification of Proposal if made through ConAss or ConCon ● Amendments and revisions are valid when ratified by a majority of votes cast in a plebiscite. ● Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions. Ratification of Proposal if made through People’s Initiative ● Valid when ratified by a majority of votes cast in a plebiscite. ● Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by COMELEC of the petition's sufficiency. Requisites for Valid Ratification: (PCR) 1. Held in a Plebiscite conducted under the election law. 2. Supervised by the COMELEC. 3. Where only franchised (Registered) voters take part. The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election.

AMENDMENTS

CAN BE DONE BY: 1. Congress (Constituent Assembly/ConAss) 2. Constitutional Convention (ConCon)

The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That Congress could have done better does not make the steps taken invalid. All the proposed amendments or revisions made by the constituent assemblies must be submitted for ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions. All the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite (Tolentino v. COMELEC, G.R. No. L-34150, Oct. 16, 1971). Presidential proclamation is NOT required for effectivity of amendments/revisions. ● Exception: When the proposed amendments or revisions so provide (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 550, 2011). Date of Effectivity of an Amendment or Revision Since Section 4 of Article XVII, says that any amendment or revision ‘shall be valid when ratified’, the date of effectivity of any amendment or revision should be the same as that of the date of ratification, that is, the day on which the votes are cast. However, the amendments themselves might specify otherwise. (BERNAS) Amendments v. Revisions AMENDMENTS REVISIONS Change in the Constitution Purpose is to improve Purpose is to examine specific parts entirety Affects only the Affects several specific provision provisions amended Adds, reduces, Affects basic principles deletes without Affects substantial altering basic principle entirety E.g. lowering the E.g. shift from voting age presidential to parliamentary system

HOW By a vote of 3/4 of all its members By a vote of 2/3 of all the members of Congress; or By a majority vote of all its members, Congress may submit to the electorate the question of calling a ConCon

RATIFICATION

Through a plebiscite, 6090 days after submission of the amendments

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3. People’s Initiative

REVISIONS

1. Congress (Constituent Assembly/ConAss) 2. Constitutional Convention (ConCon)

Petition must be signed by at least 12% of all registered voters; and Every legislative district must be represented by at least 3% of the registered voters therein. By a vote of 3/4 of all its members By a vote of 2/3 of all the members of Congress; or By a majority vote of all its members, Congress may submit to the electorate the question of calling a ConCon

B. THE PHILIPPINES AS A STATE A state is a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 37, 2009).

1. ELEMENTS (PEOPLE, TERRITORY, GOVERNMENT, AND CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES) (a) People – a community of persons sufficient in number and capable of maintaining the continued existence of the community and held together by a common bond of law. It is of no legal consequence if they possess diverse racial, cultural, or economic interests (Id.)

or if some of its territory is claimed by another state. An entity does not necessarily cease to be a state even if all its territory has been occupied by a foreign power or if it has otherwise lost control its territory temporarily (Restatement (Third) on the Foreign Relations Law of the United States). (c) Government – that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.

The extent of the Philippine territory is defined in Article I of the Constitution. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 40-41, 2009).

(d) Capacity to enter into relations with other states or Sovereignty - An entity is not a state unless it has competence, within its own constitutional system, to conduct relations with other states, as well as political, technical, and financial capabilities to do so. An entity that has capacity to conduct foreign relations does not cease to be a state because it voluntarily turns over to another state control of its foreign relations. States do not cease to be states because they have agreed not to engage in certain international activities or have delegated authority to do so to a “supernational” entity. Clearly, a state does not cease to be a state if it joins a common market.

An entity may satisfy the territorial requirement for statehood even if the boundaries have not been finally settled, if one or more of its boundaries are disputed,

Sec. 1, Art. II, of the Constitution says: “Sovereignty resides in the people and all government authority emanates from them.” Sovereignty in this sentence

(b) Territory – A definite territory, consisting of land and waters and the air space above them and the submarine areas below them.

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therefore can be understood as the source of ultimate legal authority. Legal sovereignty means the power to adapt or alter a constitution. Political sovereignty is the sum total of all the influences in a state, legal and non-legal, which determine the course of law. Sovereign authority is not always directly exercised by the people. It is normally delegated by the people to the government. Finally, is recognition by other states a constitutive element of a state? There are two views on this: Constitutive theory – recognition constitutes a state, that is it is what makes a state a state and confers legal personality on the entity. Declaratory theory – recognition is merely “declaratory” of the existence of the state and that its being a state depends upon its possession of the required elements and not upon recognition. A recognizing state merely accepts an already existing situation. The weight of authority favors the declaratory view. In practice however, whether to recognize or not is largely a political decision. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 54-56, 2009).

2. DISTINCTION BETWEEN INTERNAL AND EXTERNAL SELF-DETERMINATION Self-Determination The right to self-determination is the right of peoples to freely determine their political status and freely pursue their economic, social and cultural development. (Common Article 1, ICCPR & ICESCR) The right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond 'convention' and is considered a general principle of international law." (Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951 & 183962, October 14, 2008) The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. (Id.)

A distinction should be made between the right of internal and external self-determination (Id.) Holders of the Right International law has long recognized the right to self-determination of "peoples", understood not merely as the entire population of a State but also a portion thereof. (Id.) INTERNAL SELFEXTERNAL SELFDETERMINATION DETERMINATION DEFINITION A people's pursuit of its The establishment of a political, economic, sovereign and social and cultural independent State, the development within free association or the framework of an integration with an existing state. independent State or (Province of North the emergence into Cotabato v. any other political Government of the status freely Republic of the determined by a Philippines Peace people constitute Panel on Ancestral modes of implementing Domain, G.R. Nos. the right of self183591, 183752, determination by that 183893, 183951 & people. (Province of 183962, October 14, North Cotabato v. 2008, citing the Government of the Canadian Supreme Republic of the Court in Reference Re: Philippines Peace Secession of Quebec). Panel on Ancestral Domain, G.R. Nos. The right presumes 183591, 183752, that all peoples are 183893, 183951 & “allowed to exercise 183962, October 14, those rights and 2008, citing the freedoms which permit Canadian Supreme the expression of the Court in Reference Re: popular will.” Secession of Quebec). (Cassese, Political Self-Determination: It is the ability of the Old Concepts and New people to decide their Developments, 137, status in international 1979). relations through independence or union with another State. (Cassese, Political Self-Determination: Old Concepts and New Developments, 137, 1979) WHO EXERCISES? The right of the nation, The right of a group already constituted which considered as a State, to choose itself a nation to form its form of government a State of its own. Page 23 of 479

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POLITICAL LAW & PUBLIC INTERNATIONAL LAW (United Nations General Assembly Official Records, Netherlands, Annotations on the text of the draft International Covenant on Human Rights)

FORMS OR INCLUSIONS This includes: the Its different forms determination of the include: the peaceful Constitution, inclusion dissolution of a State, of an autonomous the re(union) or merger status, and the right to of one State with have a democratic another State, or government. through secession. (Cassese, Political (Raič, Statehood and Self-Determination: the Law of SelfOld Concepts and New Determination, 274, Developments, 137, 2002) 1979). WHEN THE RIGHT ARISES The exceptional cases in which the right to external selfdetermination can arise are: (1) where a people is under colonial rule, (2) is subject to foreign domination or exploitation outside a colonial context, and — less definitely but asserted by a number of commentators — (3) is blocked from the meaningful exercise of its right to internal selfdetermination. (Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951 & 183962, October 14, 2008, citing the Canadian Supreme Court in Reference Re: Secession of Quebec).

C. FUNDAMENTAL POWERS OF THE STATE Concept, Application, and Limits The totality of governmental power is contained in three great powers: police power, power of eminent domain and power of taxation. These belong to the very essence of government, without which no government can exist. A constitution does not grant such powers to government; a constitution can only define and delimit them and allocate their exercise among various government agencies. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Police Power, Power of Taxation, Power of Eminent Domain POLICE EMINENT TAXATION POWER DOMAIN AUTHORITY WHICH EXERCISES THE POWER May be exercised only by the May be government or its political granted to subdivisions public service companies or public utilities PURPOSE The use of the The property The property is property is (generally in the “taken” for “regulated” for form of money) public benefit, the purpose of is taken for the hence, it must promoting the support of be general government compensated. welfare, hence it is not compensable PERSONS AFFECTED Usually Operates on operates an entity or an upon a individual as community of the owner of a a class of particular entities or property individuals EFFECT There is no The money There is a transfer of contributed in transfer of the title. At most, the concept of right to there is a taxes becomes property restraint on part of the whether it be the injurious public funds ownership or use of the to a lesser property right (e.g. possession) BENEFIT The person Person affected The person affected receives the affected receives no equivalent of receives the direct and the tax in the full and fair

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BAR OPERATIONS 2023 immediate benefit but only such as may arise from the maintenance of a healthy economic standard of society and is often referred to as damnum absque injuria i.e. “damage without injury” The amount imposed should not be more than sufficient to cover the cost of the license and the necessary expense of police surveillance and inspection, examination, or regulation as nearly as can be estimated Regulates both liberty and property

form of protection, public improvements, and benefits he receives from the government as such. Therefore, taxation may be used as an implementation of police power (Lutz v. Araneta, 1955) IMPOSITION There is generally no limit to the amount that may be imposed

market value of the property taken from him

There is no amount imposed but rather the owner is paid the market value of the property taken

insistent and the least limitable of powers, extending as it does to all great public needs. (Id.) Requisites 1. Reasonable Subject - The subject of the measure is within the scope of police, i.e. that the activity or property sought to be regulated affects the public welfare. The interest of the public, generally as compared to a particular class requires interference by the state. 2. Reasonable Means - The means employed are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals. Both the end and the means must be legitimate (US v. Toribio, G.R. No. L-5060, Jan. 1, 1910) Nature Legislative but may be delegated to the following: a. President b. Administrative Bodies c. Legislative Bodies of Local Government Units

2. EMINENT DOMAIN The purpose of the taking must be public use. Just compensation must be given to the private owner. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

EXTENT Affect only property rights

1. POLICE POWER Police Power in General a. Based on public necessity and the right of the State and of the public to selfprotection. For this reason, its scope expands and contracts with changing needs. (Baseco v. PCGG, G.R. No. 75885, May 27, 1987) b. It is the power of the State to enact regulations to promote the health, morals, peace and order, and welfare of the society (Ermita-Malate Hotel and Motel Operators v. City of Manila, G.R. No. L-24693, Oct. 23, 1967). These fall under “public necessity” c. Police power has been properly characterized as the most essential,

The State has a paramount interest in exercising its power of eminent domain for the general welfare and that the superior right of the State to expropriate private property always takes precedence over the interest of private owners, provided that: a. the expropriation is for public use b. the exercise of the right to eminent domain complies with the guarantees of due process (Estate of JBL Reyes v. City of Manila, G.R. Nos 132431 & 137146, Feb. 13, 2004). The matter is legislative, however, “once authority is given to exercise the power, the matter ceases to be wholly legislative. The executive authorities may then decide whether the power will be invoked and to what extent” (Republic v. Juan, G.R. No. L-24740, Jul 30, 1979). It may be delegated to LGU’s, other public entities and public utilities. The scope is narrower and may be exercised only when authorized by Congress, subject to its control and restraints imposed through the law conferring the power or in other legislations. Page 25 of 479

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Thus, the power of eminent domain delegated to an LGU is in reality not eminent but “inferior.” The national legislature is still the principal of the LGUs, the latter cannot go beyond the principal’s will or modify the same (Beluso v. Municipality of Panay, G.R. 153974, Aug. 7, 2006). Requisites: 1. Public Use — It means public usefulness, utility, or advantage or what is productive of general benefit, so that any appropriation of private property by the state under its right of eminent domain, for purposes of great advantage to the community, is a taking for public use. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009 citing Gohl Realty Co. v. Hartford, 104 A.2d 365, 368-9 Conn,. 1954). What has emerged is a concept of public use which is as broad as public welfare. The scope of the power of eminent domain has become as broad as the expansive and ever expanding scope of police power itself (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). 2.

“Taking” requires: EPAP-D a. Expropriator must Enter the private property b. Entrance must not be for a momentary period, must be Permanent c. Entry must be under warrant or color of legal Authority d. Property must be devoted to a Pubic use e. Utilization of property must Deprive owner of all beneficial enjoyment of the property (Republic v. Vda Castellvi, G.R. No. L20620, Aug. 15, 1974).

Just Compensation — This includes not only the determination of the amount to be paid (market value) to the owner of the land but also the payment of the and within a reasonable period of time from its taking (Municipality of Makati v. Court of Appeals, G.R. No. 8989899, Oct. 1, 1990). It also includes interest in case of delay. (Republic v. Court of Appeals, G.R. No. 146587, Jul 2, 2002).

3. TAXATION The power of taxation is essentially a legislative function. Taxation is an attribute of sovereignty. It is the strongest of all powers of the government. There is a presumption in favor of legislative determination. Public policy decrees that since upon the prompt collection of revenue depends the very existence of government itself, whatever determination shall be arrived at by the legislature

should not be interfered with, unless there be a clear violation of some constitutional inhibition (Sarasola v. Trinidad, G.R. No. 14595, Oct. 11, 1919). The legislature is free to select the subjects of taxation and it may determine within reasonable bounds what is necessary for its protection and expedients for its promotion (Lutz v. Araneta, G.R. No. L -7859, Dec. 22, 1955). General Rule: The power to tax is purely legislative and it cannot be delegated Exceptions: 1. As to the President — Congress may, by law, authorize the President to fix within specific limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfa*ge dues, and other duties or imposts within the framework of the national development program of the Government. (PHIL. CONST., art. VI, § 28, ¶ 2. ) 2.

As to Local Government — Under the present Constitution, each local government unit is now expressly given the power to create its own sources of revenue and to levy taxes, subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy (PHIL. CONST., art. X, § 5.) a. A municipal corporation has no inherent right to impose taxes Its power to tax must always yield to a legislative act which is superior having been passed by the State itself which has the inherent power to tax (Basco v. PAGCOR, G.R. No. 91649, May 14, 1991).

As to Administrative Agencies — When the delegation relates merely to administrative implementation which may call for some degree of discretionary powers under a set of sufficient standards expressed by law (Maceda v. Macaraig, G.R. No. 88291, May 31, 1993)

a. Constitutional Principles

Exemption

Corollary to the power to tax is the power to exempt from tax. Hence, the same general and specific limitations on the power to tax also apply to the power to create exemptions. The exemptions,

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therefore, must be for public purpose, uniform, equitable, and in conformity with the equal protection clause. Moreover, the Constitution itself may create exemptions. When it does, the constitutional exemption itself becomes a limit on the power to tax. Sec. 28(3) is one such exemption: “Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.” It must be pointed out, however, that the exemption created by the constitutional provision is only for “taxes assessed … as property taxes, as contradistinguished from excise taxes. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 807, 2009, citing Lladoc v. Commissioner of Internal Revenue, 14 SCRA 292, 295, 1965).

D. RELEVANCE OF THE DECLARATION OF PRINCIPLES AND STATE POLICIES The “Declaration of Principles and State Policies” is a statement of the basic ideological principles and policies that underlie the Constitution. As such, the provisions shed light on the meaning of the other provisions of the Constitution and they are a guide for all departments of the government in the implementation of the Constitution. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 8, 2011). They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws (Tañada v. Angara, G.R. No. 118295, May 2, 1997).

E. DYNAMICS AMONG THE BRANCHES OF GOVERNMENT 1. SEPARATION OF POWERS An allocation of the three great powers of government in the following manner: legislation to Congress, execution of laws to the Executive, and settlement of legal controversies to the Judiciary. It is also an implicit limitation on their powers,

preventing one from invading the domain of the others, but the separation is not total. The principle of separation of powers ordains that each of the three great government branches has exclusive cognizance of and is supreme in concerns falling within its own constitutionally allocated sphere; e.g., the judiciary as Justice Laurel emphatically asserted “will neither direct nor restrain executive [or legislative] action” (Republic v. Bayao, G.R. No. 179492, Jun 5, 2013).

2. SYSTEM OF CHECKS AND BALANCES A system operating between and among the three branches of government the net effect of which is that no one department is able to act without the cooperation of at least one of the other departments. Examples: 1. Legislation in the form of an enrolled bill needs final approval from the President to become a law; 2. President must obtain the concurrence of Congress to complete certain acts (e.g. granting of amnesty); 3. Money can be released from the Treasury only by authority of Congress; 4. Appropriation, revenue, tariff, increases in public debt and private bills originate in House of Representatives; 5. SC can declare acts of Congress or the Executive unconstitutional.

3. DELEGATION OF POWERS General Rule: Legislative power is vested in Congress which consists of the Senate and the House of Representatives by the sovereign Filipino people. Congress cannot delegate its legislative power under the maxim delegata potestas non potest delegari (delegated power may not be delegated). Exceptions: (PLATE) 1. Delegation to the People – To the extent reserved to the people by the provision on initiative and referendum. 2. Delegation to Local Government Units – Local legislative bodies are allowed by our Constitution to legislate on purely public matters. Since what was given to local legislative bodies are not power to make rules and regulations but legislative power, the rules on valid delegation do not apply. However,

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when what is given to local legislative body is executive power, the rules applicable to the empowerment of administrative agencies also become applicable (Rubi v. Provincial Board, G.R. No. L-14078, March 7, 1919). a.

The BPO issued by the Punong Barangay is not an undue delegation of legislative power for it merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is purely executive in nature, in pursuance of his duty under the LGC to “enforce all laws and ordinances,” and to “maintain public order in the barangay.” (Garcia v. Drilon, G.R. No. 179267, June 25, 2013)

3. Delegation of Rule-Making Power to Administrative Bodies – power to issue supplementing rules and regulations provided that the delegation must be complete and must prescribe sufficient standards. It also includes the determination of the presence of the conditions for the law to take effect. a. Rationale: 1. Increasing complexity of the task of government 2. Lack of technical competence on the part of Congress to provide for specific details of implementation 3. Administrative agencies may fill in details of the statute for implementation 4. Legislature may pass “contingent legislation “which leaves to another body the business of ascertaining facts necessary to bring the law into action” (ABAKADA v. Ermita, G.R. No. 168056, Sept 1, 2005). a. b.

If there was a valid delegation, administrative rules and regulations are just binding as if they were written in the law. Administrative agencies may not issue regulations that contravene the law (Solicitor General v. Metro Manila Authority, G.R. No. 102782, Dec 11, 1991) nor may they add to the standards set by law (Tatad v. Secretary of Energy, G.R. No. 124360, Nov. 5, 1997). Administrative rules and regulations may be penal in nature provided that: 1. such a violation is made a crime by the delegating law;

penalty of such is provided in the statutes; 3. the regulation is published in full text. Powers of Congress which are not to be delegated are those that are strictly or inherently legislative. Purely legislative power is the authority to make a complete law - complete as to the time it shall take effect or to whom it shall be applicable and to determine the expediency of the enactment

4. Tariff Powers Art. VI, § 28(2) authorizes Congress to delegate to the President the power to fix tariff rates, import and export quotas, tonnage, wharfa*ge dues, and other duties and impost. 5. Emergency Powers Art. VI, § 23(2) authorizes Congress to give the President the power necessary and proper to carry out a declared national policy in times of war or other national emergency pursuant to law. Test of Valid Delegation 1. Completeness Test — The law must state the policy that must be carried out or implemented and leave no room for the delegate to legislate; nor allow discretion on their part to say what the law is. A statute may be complete when the subject, and the manner and the extent of its operation are stated in it such that when it reaches the delegate, there must be nothing left for the delegate to do but to enforce the law. 2. Sufficiency of Standard — There must be adequate guidelines or limitations in the law to map out the boundaries of the delegate authority and prevent the delegation from running riot. The limits are sufficiently determinate and determinable to which the delegate must conform in the performance of his actions. Examples: i. Public interest (People v. Rosenthal, G.R. Nos. L-46076 and L-46077, Jun. 12, 1939); ii. Fair and equitable employment practices (Eastern Shipping Lines v. POEA, supra) iii. Justice and equity; iv. Public convenience and welfare; v. Simplicity, economy, and efficiency. NOTE: Standards may be expressed or implied from the law taken as a whole (Edu v. Ericta, G.R.

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No. L-32096, Oct. 24, 1970). They can even be gathered in another statute of the same subject matter (Chongbian v. Orbos, G.R. No. 96754, June 6, 1995). A law allowing a judge to inflict punishment of imprisonment in its discretion without any designated limits is invalid (People v. Dacuycoy, G.R. No. L-45127, May 5, 1989). Section 8 of PD 910 regarding the Malampaya funds provides: “all fees, revenues and receipt…under the Petroleum Act of 1949; as well as the government share…shall form part of a special fund to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter provided by the President.” This is not a valid delegation of legislative power. The provision constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President‘s authority (Belgica v. Ochoa, G.R. No. 208566, Nov. 19, 2013). Congress can only delegate, usually to administrative agencies, rule-making power or law execution. This involves either of two tasks for the administrative agencies: 1. Subordinate Legislation: Filling in the details of an otherwise complete statute; or 2. Contingent Legislation: Ascertaining the fact necessary to put into effect, suspend, or apply a “contingent” law. Any post-enactment congressional measure should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: (SAHM) 1. Scrutiny based primarily on Congress’ power of appropriation and the budget hearings conducted in connection with it 2. Its power to ask heads of departments to Appear before and be Heard by either of its Houses on any matter pertaining to their departments and its power of confirmation and investigation 3. Monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class (Abakada v. Purisima, G.R. No. 166715, Aug. 14, 2008).

Reorganization “involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.” The general rule has always been that the power to abolish a public office is lodged with the legislature. The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the President’s power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures (Malaria Employees v. Romulo, G.R. 160093, Jul 31, 2007).

F. STATE IMMUNITY 1. BASIS BASIS: Art. XVI, Sec. 3: “The state may not be sued without its consent.” This is based on the principle of equality of states — par in parem non habet imperium. Doctrine of State Immunity It refers to a principle by which a state, its agents, and property are immune from the jurisdiction of another state (MAGALLONA). Principle of Equality of States This principle is premised on the juridical equality of states, according to which a state may not impose its authority or extend its jurisdiction to another state without the consent of the latter through a waiver of immunity. Thus, domestic courts must decline to hear cases against foreign sovereigns out of deference to their role as sovereigns. Kinds of Immunity 1. Absolute sovereign immunity - where a state cannot be sued in a foreign court no matter what the act it is sued for; and 2.

Restrictive sovereign immunity - where a state is immune from suits involving governmental actions (jure imperii), but not from those arising from commercial or nongovernmental activity (jure gestionis).

Summary General rule – The State cannot be sued. Exception – The State consents to be sued. How a State gives its consent 1. Express consent a. General Law b. Special Law 2. Implied consent

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When the State commences litigation, it becomes vulnerable to a counterclaim; (US v. Guinto, G.R. No. 76590, Feb. 26, 1990) State enters into a business contract (thus exercising proprietary functions); (Id.) When it would be inequitable for the State to invoke immunity; In eminent domain cases.

2. EXCEPTIONS Consent to be sued is given by the state either expressly or impliedly Express The law expressly grants the authority to sue the State or any of its agencies. a. General Law: Authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law (e.g. money claims arising from contract express or implied, liability of local government units for torts) b. Special Law: may come in the form of a private bill authorizing a named individual to bring a suit on a special claim. Implied (CBIP) a. When the State Commences litigation, it becomes vulnerable to counterclaim; b. When the State enters into a Business contract (in jure gestionis or proprietary functions); c. When it would be Inequitable for the State to invoke its immunity; and d. In instances when the State takes private property for Public use or purpose (Eminent Domain). Specific Rules a. When State Commences Litigation Exception: When the State intervenes not for the purpose of asking for any affirmative relief, but only for the purpose of resisting the claim precisely because of immunity from suit (Lim v Brownell, GR No. L-8587, Mar 24 1960). b.

When State enters a Business Contract Types of Capacity of the State in entering into contracts: 1. Acta jure gestionis - by right of economic or business relations; commercial or proprietary acts. The State may be sued (US v. Guinto, GR. No. 76607, Feb. 26, 1990)

Acta jure imperii - by right of sovereign power and in the exercise of sovereign functions; there is no implied consent to be sued (US v. Ruiz, GR No. 35645, May 22, 1985)

When State Executes and Enters Private Contracts ● General Rule: The State may be sued if a private contract is entered into by the proper office and within the scope of his authority. ● Exception: When the private contract is incidental to the performance of a government function.

Suits against Public Officers General Rule: The doctrine of state immunity also applies to complaints filed against officials of the State for acts performed by them in the discharge of their duties within the scope of their authority. Exception: The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his: 1. private and personal capacity as an ordinary citizen 2. for acts without authority or in excess of the powers vested in him. (Lansang v. CA, G.R. 102667, Feb. 23, 2000)

G. THE NATIONAL TERRITORY 1. SCOPE (TERRESTRIAL, AERIAL, AND FLUVIAL DOMAINS) Provision on National Territory The National Territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimension, form part of the internal waters of the Philippines (PHIL. CONST., art. I, § 1) Purpose of Article I 1. Initially it was to prevent the US from dismembering the Philippines, an acceptance by the US President of the Constitution would oblige the US to keep the integrity of the Philippine territory.

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Now, it is to determine the State’s jurisdiction over which it can exercise its sovereignty. The government can exercise its power over those areas included in the national territory and citizens must respect that. At the same time, citizens could demand its rights from the government under those areas.

NOTE: It is only a municipal or local law. The constitution is not definitive to claims of other states. But it has value, if in history, no one questions it, we can rely on the fact that it has not been challenged but it does not stop others from claiming it.

2. ARCHIPELAGIC DOCTRINE Archipelagic Doctrine A body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one integrated unit. (N.B. Embodied in Art. II, specifically by the mention of the “Philippine archipelago” and the specification on “internal waters.”) Application to the Philippines The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (PHIL. CONST., art. I, § 1) Treaty limits of the Philippine archipelago 1. Treaty of Paris of 10 December 1898: “Spain cedes to the United States the archipelago known as the Philippines Islands, and comprehending the islands lying within the following line” Article 3 of the said treaty defines the metes and bounds of the archipelago by longitude and latitude, degrees and seconds. Technical descriptions are made of the scope of the archipelago as this may be found on the surface of the earth. 2. Treaty of Washington of 7 November 1900 between the United States and Spain: Ceding Cagayan, Sibuto and Sulu. 3. Treaty of 12 January 1930 between the United States and Great Britain: Ceding the Turtle and Mangsee Islands (BERNAS (2003), cited in Justice Velasco’s concurring opinion in Magallona v. Ermita (2011)) Composition of National Territory 1. Philippine Archipelago, with all the islands and waters embraced therein;

Internal Waters: waters around, between and connecting the islands of the archipelago, regardless of breadth and dimension; and All other territories over which the Philippines has sovereignty or jurisdiction.

It consists of: 1. Territorial sea, seabed, subsoil, insular shelves, and other submarine areas; and 2. Terrestrial, fluvial, and aerial domains. Concept of Innocent Passage Passage through territorial waters which is neither prejudicial to the interests of the coastal state nor contrary to recognized principles of international law. Example: Entry into territorial waters by a cruise ship. Future Acquisitions included in National Territory The clause includes any territory presently belonging or those that might in the future belong to the Philippines through any of the accepted international modes of acquiring territory. Territories belonging to Philippines by historic right or title The clause also includes what was referred to under the 1973 Constitution as territories “belonging to the Philippines by historic right or legal title,” that is, territories which, depending on available evidence, might belong to the Philippines (e.g., Sabah, the Marianas, Freedomland) (Bernas, Constitutional Rights and Social Demands, 8, 2010). Under Article 3 of the UNCLOS, “every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from the baselines.” Contiguous Zone It is an area of water which extends up to 24 nautical miles from the baseline (12 nautical miles from the Territorial Sea). Although not part of the territory, the coastal State may exercise jurisdiction to prevent infringement of customs, fiscal, immigration, or sanitary laws. Exclusive Economic Zone This refers to the body of water extending up to 200 nautical miles beyond the baseline, within which the state may exercise sovereign rights to explore, exploit, conserve, and manage the natural resources.

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Extended Continental Shelf Portion of the continental shelf that lies beyond the 200 nautical mile limit. A coastal state may establish a continental shelf beyond 200 nautical miles from its coastline. The coastal state may establish the outer limits of its juridical continental shelf wherever the continental margin extends beyond 200 nautical miles by establishing the foot of the continental slope, by meeting the requirements of Article 76, paragraphs 4-7, of the UNCLOS. The Philippine archipelago and all other territories consist of the following domains: (TAFA) 1. Terrestrial; 2. Aerial; 3. Fluvial; and 4. All other territories outside archipelago over which RP has sovereignty or jurisdiction. Normal Baseline Method The baseline is drawn following the low-water line along the coasts as marked on large-scale charts officially recognized by the coastal State. This line follows the sinuosities of the coast and therefore would normally not consist of straight lines (Section 5, 1982 LOS; Bernas, 1987 Philippine Constitution: A Commentary, 23, 2009). Straight Baseline Method Consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast, in order to delineate the internal waters from the territorial waters of an archipelago. The Baseline Law (R.A. 9522, 2009) R.A. No. 9522–amended R.A. No. 3046, entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines;" specified that baselines of Kalayaan Group of Islands and Bajo de Masinloc (Scarborough Shoal) shall be determined as “Regime of Islands” under the Republic of the Philippines, consistent with the UNCLOS. R.A. No. 9522 is constitutional: (a) It is a statutory tool to demarcate the maritime zone and continental shelf of the Philippines under UNCLOS III, and does not alter the national territory. Baselines laws are nothing but statutory mechanisms for UNCLOS III state parties to delimit with precision the extent of their maritime zones and continental shelves. The law has nothing to do with acquisition, enlargement,

or diminution of territory, as States may only acquire (or lose) territory through the following modes: (CAPO) Cession, Accretion, Prescription, and Occupation (Magallona v. Ermita, G.R. No. 187167, 2011). (b) The law also does not abandon the country’s claim to Sabah, as it does not expressly repeal the entirety of R.A. No. 5446. (Magallona v. Ermita, G.R. No. 187167, Jul. 16, 2011) The law also does not convert internal waters into archipelagic waters (which allow the right of innocent passage). The Philippines still exercises sovereignty over the body of water lying landward of the baselines including the air space over it and the submarine areas underneath. The political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage (Magallona v. Ermita, G.R. No. 187167, Jul. 16, 2011). The Baselines Law does not abandon the Philippines’ claim over Sabah under RA 5446. The definition of the baselines of the territorial sea of the Philippine Archipelago is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Philippines has acquired dominion and sovereignty (R.A. No. 556, § 2). Maritime Zones TERRITORIAL SEA

12 nautical miles from baselines

Absolute Sovereignty

CONTIGUOUS ZONE

24 nautical miles from baselines

Enforcement of customs, fiscal, immigration, sanitation laws

EXCLUSIVE ECONOMIC ZONE

200 nautical miles from baselines

Exploitation of living and non-living resources

CONTINENTAL SHELF

Submerged prolongatio n of the land territory

Sovereign rights of exploration and exploitation of living and non-living

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resources of the seabed

Regime of Islands Under Article 121 of the UNCLOS III, any naturally formed area of land surrounded by water, which is above water at high tides, qualifies under the category of “regime of islands” whose islands generate their own applicable maritime zones (e.g., Kalayaan Islands and Scarborough Shoal). 1. Kalayaan Islands has its own Territorial Sea, Contiguous Zone, and Exclusive Economic Zone. 2. BUT Scarborough Shoal ONLY has a Territorial Sea and Contiguous Zone. 3. There can be a Continental Shelf without an EEZ, but not an EEZ without a Continental Shelf.

————- end of topic ————-

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II. LEGISLATIVE DEPARTMENT TOPIC OUTLINE UNDER THE SYLLABUS A. NATURE OF LEGISLATIVE POWER 1. Derivative and Delegated Power 2. Plenary Character 3. Limitations a. Substantive – Bill of Rights b. Procedural – Manner of Passage and Form of Bills 4. Law-making Distinguished from LawExecution a. Filling-Up Details b. Ascertainment of Facts 5. Exceptions to Non-Delegability a. Local Governments b. Presidential Power in Times of War and National Emergency, Including Martial Law and in a Revolutionary Context c. Fixing Tariff Rates, Quotas, and Other Duties 6. Legislative Power of the People Through Initiative and Referendum

1. Legislative Inquiries and the Oversight Functions 2. Non-Legislative a. Informing Function b. Power of Impeachment

B. BICAMERAL CONGRESS 1. Senate 2. House of Representative C. LEGISLATIVE PRIVILEGES, DISCLOSURE OF FINANCIAL AND BUSINESS AFFAIRS, PROHIBITIONS, INHIBITIONS, AND DISQUALIFICATIONS D. QUORUM AND VOTING MAJORITIES E. DISCIPLINE OF MEMBERS F.

PROCESS OF LAW-MAKING 1. Function of the Bicameral Conference Committee 2. Limitations on Legislative Power a. Limitations on Revenue, Appropriations, and Tariff b. Presidential Veto and Congressional Override

G. RULES ON APPROPRIATION AND REALIGNMENT H. ELECTORAL TRIBUNALS AND COMMISSION ON APPOINTMENTS 1. Composition 2. Powers and Jurisdiction I.

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A. NATURE OF LEGISLATIVE POWER

On appropriation: a. The procedure in approving appropriations for Congress shall strictly follow the procedure for approving appropriations for other departments or agencies b. Prohibition against use of public money or property for a religious purpose c. No specific funds shall be appropriated or paid for use or benefit of any religion, sect, etc., except for priests, etc. assigned to AFP, penal institutions, etc.

On taxation: a. No law granting any tax exemption shall be passed without the concurrence of a majority of all Members of Congress b. All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only c. All revenues and assets of nonstock, non-profit educational institutions

On the Supreme Court’s jurisdiction. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in the Constitution without its advice and concurrence

On nobility. No law granting title of royalty or nobility shall be passed

Nature of Legislative Power Legislative power is the authority to make, alter and repeal laws. (PHIL. CONST., art. VI, § 1.)

1. DERIVATIVE AND DELEGATED POWER Classification of Legislative Power (COrODe): 1. Constituent - the power to propose amendments to the Constitution 2. Ordinary - the power to pass ordinary laws 3. Original - possessed by the people in their sovereign capacity, exercised via initiative and referendum. 4. Delegated - possessed by Congress and other legislative bodies by virtue of the Constitution; subordinate to the original power of the people who delegated the same.

2. PLENARY CHARACTER General Plenary Power The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. Except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest. (Ople v. Torres, G.R. No. 127685, July 23, 1998)

5. LIMITATIONS a. Substantive – Bill of Rights Substantive - limitations on the content of laws. Express limitations: 1. Bill of Rights: a. No law shall be passed abridging freedom of speech, of expression, etc. b. No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof c. No law impairing the obligation of contracts shall be passed d. No ex post facto law or bill of attainder shall be enacted

Implied limitations 1. Prohibition against irrepealable laws 2. Non-delegation of powers Jurisprudence 1. Power to provide holdover: Congress cannot provide for the holdover of elective officers if the same would go beyond their terms fixed by the Constitution (Abas Kida v. Senate, G.R. No. 196271, 2011). 2. Power to create new term and appoint the occupant of the position: Congress cannot create a new term and effectively appoint the occupant of the position for the new term. (Id.) 3. Power to grant franchise for public utilities: Congress cannot grant legislative franchises for the operation of public utilities which shall be exclusive in character and which shall not be subject to

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amendment, alteration or repeal when common good requires (Tawang Multipurpose v. La Trinidad Water District, G.R. No. 166471, 2011).

b. Procedural – Manner Passage and Form of Bills

Procedural - limitations on the manner of passing laws 1. 2.

There must only be one subject to be stated in the title of the bill to prevent hodgepodge or log-rolling legislation. Three readings on separate days, printed copies of the final bill in its final form to be distributed to members three days before its passage, except if the President certifies to its immediate enactment to meet a public calamity or emergency; upon its last reading, no amendment is allowed and the vote thereon taken immediately and the yeas and nays entered into the Journal. Appropriation, revenue, tariff, bills authorizing the increase of public debts, bills of local application, and private bills shall originate exclusively in the House of Representatives.

The power conferred upon an administrative agency to issue or promulgate rules and regulations necessary to carry out its functions has been held to be an adequate source of authority to delegate a particular function, unless by express provision of the statute or by implication, it has been withheld." Limitations on the rule-making power The quasi-legislative or rule-making power of a public administrative body is a delegated legislative power, which it may not use either to abridge the authority given it by the Congress or the Constitution or to enlarge its power beyond the scope intended. Constitutional and statutory provisions control with respect to what rules and regulations may be promulgated by such a body, as well as with respect to what fields are subject to regulation by it. 1.

It may not make rules and regulations which are inconsistent with the provisions of the Constitution or a statute, particularly the statute it is administering or which created it, or which are in derogation of, or defeat, the purpose of a statute.

It may not, by its rules and regulations, amend, alter, modify, supplant, enlarge or expand, restrict or limit the provisions or coverage of the statute as this power belongs to the legislature. It cannot engraft additional requirements or embrace matters not covered by the statute or contemplated by the legislature. The power of administrative officials to promulgate rules in the implementation of the statute is necessarily defined by and limited to what is provided in the legislative enactment conferring the power. It is confined to putting the law into effect or carrying out the legislative purpose.

A public administrative body may make only such rules and regulations as are within the limits of the powers granted to it or what is found in the legislative enactment itself; otherwise, they become void. The power of administrative officials to promulgate rules in the implementation of the statue is necessarily defined by and limited to what is provided in the legislative enactment conferring the power. It is confined to putting into effect the law as enacted or carrying out the legislative purpose.

There is no dispute that in case of discrepancy between the basic law and a

6. LAW-MAKING DISTINGUISED FROM LAW-EXECUTION In spite of the principle of non-delegability of legislative power, it is common knowledge that numerous statutes have been passed creating administrative agencies and authorizing them to exercise vast regulatory powers. The rules and regulations they issue have the force and effect of law, This phenomenon has been justified in two different theories: (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 686, 2009).

Legislation on Administrative Level The rule-making power of an administrative agency, that is, the power to make implementing or interpretative rules or regulations, is legislative in character and results in "delegated legislation." "Rule making" is legislation on the administrative level, that is, legislation within the confines of the granting statute, as required by the Constitution and its doctrine of non-delegability and separability of certain powers flowing from the separation of the three branches of the government. It is also called administrative legislation, delegated legislation, ordinance-making, and quasi legislation.

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rule or regulation issued to implement said law, the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of the basic law. The rules of administrative officers and boards which have the effect of extending, or which conflict with the authority-granting statute do not represent a valid exercise of the rulemaking power but constitute an attempt by an administrative body to legislate. 5.

Furthermore, a rule or regulation should be uniform in operation, reasonable, and not unfair or discriminatory.

(De Leon, Administrative Law: Texts and Cases, 92-93, 96-98, 2016) Prohibition Approval

Post-Enactment

Legislative

In Abakada, the Court held that "from the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional.” It must be clarified, however, that since the restriction only pertains to "any role in the implementation or enforcement of the law,” Congress may still exercise its oversight function which is a mechanism of checks and balances that the Constitution itself allows. But it must be made clear that Congress‘ role must be confined to mere oversight. Any post- enactmentmeasure allowing legislator participation beyond oversight is bereft of any constitutional basis and hence, tantamount to impermissible interference and/or assumption of executive functions. Any post-enactment congressional measure should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: 1.

scrutiny based primarily on Congress‘ power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation; and investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. (Belgica v. Ochoa, G.R. No. 208566, November 19, 2013 citing Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008)

a. Filling-Up Details Congress can delegate to the courts, or to any other tribunal, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others powers which the legislature may rightfully exercise itself. The line has not been exactly drawn which separate those important subjects, which must be regulated by the. Legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details (Wayman v. Southwards, 10 Wheat 1, 42 (1825).

c. Ascertainment of Facts Congress may pass contingent legislation, that is, legislation which leaves to another body the business of ascertaining the facts necessary to bring the law into actual operation. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 686, 2009) Under both theories, the function performed by the administrative agency is not law-making but lawexecution (Id.). In order to ensure that the power delegated by the legislature is not law-making powers, the statute making the delegation must: 1. 2.

Be complete in itself – it must set forth the policy to be carried our or implemented by the delegate; and Fix a standard – the limits of which are sufficiently determinate or determinable – to which the delegate must conform in the performance of his functions.

Without a statutory declaration of policy, the delegate would in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power. Not only to make the law, but also to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress (Pelaez v. Auditor General, 15 SCRA 569, 576-7, 1965).

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7. EXCEPTIONS TO NONDELEGABILITY

Barangay

Principle of Non-Delegability General Rule: Congress cannot delegate its legislative power under the principle of nondelegation (delegata potestas non potest delegari or delegated power may not be delegated). Exceptions: (PLATE) 1. To the extent reserved to the People by the provision on initiative and referendum. 2. Delegation to Local government 3. Delegation of rule-making power to Administrative bodies 4. Congress may delegate Tariff powers to the President 5. Emergency powers delegated by Congress to the President.

8. LEGISLATIVE POWER OF THE PEOPLE THROUGH INITIATIVE AND REFERENDUM Initiative The power of the people to propose amendments to the Constitution or to propose and enact legislation called for the purpose (R.A. No. 6735, § 3(a)) Three Types of Initiative (CSL) 1. Initiative on the Constitution - A petition proposing amendments to the Constitution. 2. Initiative on Statutes - A petition proposing to enact a national legislation. 3. Initiative on Local Legislation - A petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance (R.A. No. 6735, § 3(a)) Local Initiative Registered voters within a local government unit may file a petition with the Regional Assembly or local legislative body, respectively, proposing the adoption, enactment, repeal or amendment of any law, ordinance or resolution. (R.A. No. 6735, § 13(a)) MINIMUM NUMBER OF REGISTERED VOTERS REQUIRED PER LGU LGU

NOT LESS THAN:

Autonomous region

2000

Province or city

1000

Municipality

100

Limitations on the Power of Local Initiative 1. Should not be exercised more than once a year; 2. Extended only to subjects or matters which are within the legal powers of local legislative bodies to enact; 3. If the local legislative body adopts the proposition in toto before the initiative is held, the initiative shall be cancelled. Those against such action may apply for initiative. (R.A. No. 6735, § 15) Limitation on Local Legislative Body vis-a-vis Local Initiative Any proposition, ordinance, or resolution approved through an initiative and referendum ● Shall not be repealed, modified or amended by the local legislative body concerned within 6 months from its date of approval ● May be amended, modified, repealed within 3 years thereafter by a vote of 3/4 of all its members. ○ In case of barangays, the period shall be 18 months after approval. (R.A. No. 6735, § 16; Local Government Code, § 125.) Indirect Initiative Exercise of initiative by the people through a proposition sent to the Congress or the local legislative body for action (R.A. No. 6735, § 3(b)) Referendum The power of the electorate to approve or reject legislation through an election called for the purpose (R.A. No. 6735, § 3(c)) Two Classes of Referendum (R.A. No. 6735, § 3(c); Local Government Code, § 126.) 1. Referendum on statutes - petition to approve or reject an act or law, or part thereof, passed by Congress 2. Referendum on local laws - legal processes whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the Sanggunian Required Petition 1. Petition should be registered with the Commission on Elections 2. Should be signed by at least 10% of the total number of registered voters

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3. Every legislative district must be represented by at least 3% of the registered voters thereof The petition to be signed by the people should contain a definite proposal of the amendment of the Constitution; not merely a general question whether they approve of the amendment or not (Lambino v. COMELEC, G.R. No. 174153, October 25, 2006). Matters Which May Not Be the Subject of Initiative or Referendum (R.A. No. 6735, § 10.) 1. A petition embracing more than one subject. 2. Statutes involving emergency measures Initiative v. Referendum (SBMA v. COMELEC, G.R. No. 125416, Sept. 26, 1996) INITIATIVE

REFERENDUM

Power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly

Right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become a law

Entirely the work of the electorate

Begun and consented to by the law-making body

A process of lawmaking by the people themselves without the participation and against the wishes of their elected representatives

Consists merely of the electorate approving or rejecting what has been drawn up or enacted by a legislative body

B. BICAMERAL CONGRESS 1. SENATE Composition 24 who are elected at large by the qualified voters of the Philippines. (PHIL. CONST., art. VI, § 2.) Term of Office 6 years commencing at noon on the 30th day of June following their election (PHIL. CONST., art. VI, § 4.)

Term Limit No Senator shall serve for more than 2 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected (PHIL. CONST., art. VI, § 4.)

2. HOUSE OF REPRESENTATIVES Composition Not more than 250 members, unless otherwise fixed by law, consisting of: 1. District Representatives: elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area 2. Party-list Representatives: shall constitute 20% of the total number of the members of the House of Representatives including those under the party-list. Term of Office 3 years, commencing at noon on the 30th day of June next following their election Term Limit No member of the HOR shall serve for more than 3 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. List of Qualifications for both Senators and Members of the House The qualifications of both Senators and Members of the House are LIMITED to those provided by the Constitution. Congress cannot, by law, add or subtract from these qualifications (PHIL. CONST., art. VI, § 3 & 6; Pimentel v. COMELEC, G.R. No. 161658, Nov. 3, 2008).

Qualifications for Senate and House of Representatives: SENATOR REPRESENTATIVE Natural-born citizen of the Philippines Able to read and write At least 35 years old on At least 25 years old on the DAY OF THE the DAY OF THE ELECTION ELECTION At least 35 years old on At least 25 years old on the DAY OF THE the DAY OF THE ELECTION ELECTION Registered voter Registered voter in the district in which he shall be elected (except

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Resident of the Philippines for at least 2 years immediately preceding the election Term of 6 years commencing at noon on June 30, next following their election Term limit: no more than 2 consecutive terms

POLITICAL LAW & PUBLIC INTERNATIONAL LAW party-list representatives) Resident of the said district for at least 1 year immediately preceding election (except party-list representative) Term of 3 years commencing at noon on June 30, next following their election

stranger or newcomer, unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community. (Gallego v. Verra, G.R. No. L-48641, Nov. 24, 1941) 4.

Domicile of origin is not easily lost. To successfully effect a change of domicile, the following must be proven: (AID) a. an Actual removal or an actual change of domicile b. a bona fide Intention of abandoning the former place of residence and establishing a new one c. Definite acts which correspond with the purpose (Aquino v. COMELEC, G.R. No. 120265, Sept. 18, 1995)

Therefore, in order to acquire a domicile by choice, there must be an animus non revertendi and an animus manendi. (Gallego v. Verra, G.R. No. L-48641, Nov. 24, 1941)

While voting is not conclusive of residence, it does give rise to a strong presumption of residence. The fact that one has continuously voted in a particular locality is a strong factor in assisting to determine the status of his domicile. (Domino v. COMELEC, G.R. No. 134015, July 29, 1999)

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. (Romualdez-Marcos, G.R. No. 119976, Sept. 18, 1995)

Term limit: no more than 3 consecutive terms

a. District Representatives and Mechanics of Apportionment District Representative (PHIL. CONST., art. VI, § 5.) Elected from legislative districts that are apportioned in accordance with the number of inhabitants in each area and on the basis of a uniform and progressive ratio. Qualifications 1. Natural born citizen 2. At least 25 years of age on the day of the election 3. Able to read and write 4. Registered voter in the district in which he shall be elected 5. A resident of the Philippines for a period of not less than 1 year immediately preceding the day of the election Residence Requirement 1. The term "residence" has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution. (Co v. HRET, G.R. Nos. 92191-92, July 30, 1991) 2.

Domicile denotes a fixed permanent residence to which when absent for business or pleasure, one intends to return. a. The absence of a person from said permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that person. b. In other words, domicile is characterized by animus revertendi. (Id.)

Creation of Legislative Districts The rules on legislative apportionment or creation of legislative districts are found in Art. VI, Section 5 (1), (3) and (4) (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. 8, 2008).

The manifest intent of the law in fixing a residence qualification is to exclude a Page 41 of 479

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LEGISLATIVE APPORTIONMENT

REAPPORTIONMENT

The determination of the number of representatives which a State, county or other subdivision may send to a legislative body

The realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation

It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts

Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district (Sema v. COMELEC, G.R. No. 177597, July 16, 2008).

Jurisprudence 1. 250,000 minimum population NOT a requirement for provinces: There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose of every legislative district. What the Constitution provides is a 250,000 minimum population only for a city to be entitled to a representative, but not so for a province (Aquino v. COMELEC, G.R. No. 189793, April 7, 2010). 2.

250,000 only to create an initial legislative district: The requirement for cities applies only to its initial legislative district. The Constitution does not require a city to increase its population by another 250,000 to be entitled to an additional district (Id.)

Necessity of confirmation by plebiscite: a. The creation of legislative districts does not need confirmation by plebiscite if it does not involve the creation of a local government unit (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. 8, 2008). b. When a municipality is converted into a city large enough to entitle it to one district, the incidental effect is splitting the district into two. This does not need a consensus. There is no need for plebiscite under Art. X of the Constitution when one district is split into two, because there is no creation of new juridical personalities nor division of territory per se. There is only a need for plebiscite if you are creating a new Local Government Unit (Tobias v. Abalos, G.R. No. L114783, Dec. 8, 1994).

Reapportionment either through a special law or general reapportionment law: The reapportionment of legislative districts may be made through a special law, such as the charter of a new city. The Constitution clearly provides that Congress shall be composed of not more than two hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude Congress from increasing its membership by passing

The COMELEC cannot correct the imbalance resulting from the increase of districts by transferring districts. The COMELEC must wait for a legislative enactment. (Montejo v. COMELEC, G.R. No. 118702, March 16, 1995) Rules on apportionment of legislative districts Under the Constitution 1. Legislative districts shall be made in accordance with the number of respective inhabitants and on the basis of a uniform and progressive ratio 2. Each district shall comprise, as far as practicable, Contiguous, Compact and Adjacent territory. (CCA) 3. Each city with at least 250,000 inhabitants will be entitled to at least one representative while each province will have at least one representative. 4. Each province, irrespective of the number of inhabitants, is entitled to at least 1 representative

Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census.

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a law, other than a general reapportionment law. (Mariano v. COMELEC, G.R. No. 118577, Mar. 7, 1995) Gerrymandering The formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party. (Navarro v. Executive Secretary, G.R. No. 180050, Feb. 10, 2010) (This is the reason why the Constitution requires that Legislative Districts be compact, contiguous, and adjacent.) The Constitutional standards used to determine the apportionment of legislative districts, i.e. that each legislative district is to comprise, as far as practicable, a contiguous, compact, and adjacent territory, is meant to prevent ‘gerrymandering.’ (Id.) Difference of Reapportionment in Sec. 5(10), Art. VI and the Creation of LGU in Sec. 10, Art. X. In the former, the purpose is to ensure better access to one’s district representative in Congress. No political or corporate unit is created. Thus, there is no need for a plebiscite in the creation, dissolution, or any other similar action on a legislative district. In the latter, political and corporate units are created or altered. These possess legal personality and are considered “instrumentalities of the State in carrying out the functions of government”. They exercise special functions for the sole benefit of constituents. Thus, the need for a plebiscite to expressly secure the consent of the people affected by the creation, division, merger, abolition or alteration of boundaries of local government units through a plebiscite (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. 8, 2008).

Party-list system

Party-List Representatives (Sec. 5 (2)) Constitute 20% of the total number of representatives (the total includes the party-list representatives). The maximum number of House of Representative members is set at 250, which means a maximum of 50 party-list members are allowed. But this number can be increased through a passage of a law (Banat v. COMELEC, G.R. Nos. 179271 & 179295, July 8, 2009). However, for 3 consecutive terms after the ratification of the 1987 Constitution (1987-1992, 1992-1995 and 1995-1998) from February 2, 1987 until 1998, one half of the seats allocated to partylist representatives shall be filled as provided by law,

by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector (PHIL. CONST., art. VI, § 5(2).). Under Art. XVIII, Sec. 7, until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seats reserved for sectoral representation. R.A. No. 7941, the Party-List System Act was approved on March 3, 1995. This law put into place the mechanics for a party-list system of representation based on election and ended the appointment of sectoral representatives by the President as provided in the Transitory Provisions. For the purposes of the May 1998 elections, the first 5 major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. Mechanics (R.A. No. 7941, § 8.) 1. Registered party-lists, organizations, or coalitions shall submit to the COMELEC a list of not less than five (5) nominees in order of priority. a. A person may be nominated in one (1) list only. b. Only persons who have given their consent in writing may be named in the list. c. Candidates for any elective office in the immediately preceding election shall be disqualified from becoming a nominee. d. No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC Exceptions: 1. when the nominee dies 2. withdraws in writing his nomination 3. becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list. ○ Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned.

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The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes garnered during elections. (R.A. No. 7941, § 11.)

Formula: a) If the number of District Seats is given. Total House Seats = District Seats / 0.8 Party-List Seats = District Seats x 0.25 b) If the total number of House Seats is given. Party-List Seats = Total House Seats x 0.2 District Seats = Total House Seats x 0.8 c) If the total number of Party-List Seats is given. Total House Seats = Party-List Seats / 0.2 District Seats = Party-List Seats / .25

will not question the wisdom of the Legislature as long as it is not violative of the Constitution (Banat v. COMELEC, G. R. No. 179271, July 8, 2009). Seat Allocation for the Party-list Representatives 1. Determine the number of seats available to party-list representatives through the following formula: a. (Number of seats available to legislative districts ÷ 0.80) x 0.20 2.

Rank all party-lists according to votes received.

Determine the 2% qualifiers through the formula below. These party-lists are guaranteed one seat in the House (“guaranteed seats” or the number of seats allocated to the 2% qualifiers). a. Number of votes received by the party-list ÷ the total number of votes cast for the party-list system (divisor) b. LEONEN: The divisor to be used in interpreting the formula used in BANAT is the total votes cast for the party-list system. This should not include the invalid votes. However, so as not to disenfranchise a substantial portion of the electorate, total votes cast for the party-list system should mean all the votes validly cast for all the candidates listed in the ballot, [even those] that are subsequently disqualified, so long as they were presented as a choice to the electorate. The voter relies on the ballot when making his or her choices. (ARARO v. COMELEC, G.R. No. 192803, Dec. 10, 2013)

Determine the “additional seats” through the following formula: a. Maximum number of seats (result of #1) - guaranteed seats

Divide the number of votes received by all parties (2% qualifiers and non-qualifiers) by the total number of votes cast, as in #3) and multiply the result to the number available seats, as in #4

Parameters in Party-List Elections 1. 20% of the total number of the membership of the House of Representatives is the maximum number of seats available to party-list organizations, such that there is automatically one party-list seat for every four existing legislative districts. 2.

Garnering 2% of the total votes cast in the party-list elections guarantees a party-list organization one seat. The guaranteed seats shall be distributed in a first round of seat allocation to parties receiving at least two percent of the total party-list votes.

The additional seats, i.e. the remaining seats after allocation of the guaranteed seats, shall be distributed to the party-list organizations including those that received less than 2% of the total votes. The additional seats shall be distributed to the parties in a second round of seat allocation according to the two-step procedure laid down in the BANAT Decision of 21 April 2009. The continued operation of the 2% threshold as it applies to the allocation of the additional seats is unconstitutional because this threshold mathematically and physically prevents the filling up of the available party-list seats.

The three-seat cap is constitutional. The three-seat cap is intended by the Legislature to prevent any party from dominating the party-list system. There is no violation of the Constitution because the 1987 Constitution does not require absolute proportionality for the party-list system. The well-settled rule is that courts

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Distribute the additional seats (rounded down) in accordance to the ranking.

Take note of the three seat cap. (BANAT v. COMELEC, G.R. No. 179271, 2009)

The 2% Threshold and 3-Seat Limit 1. The parties shall be ranked from the highest to lowest based on the number of votes they garnered. 2. To be entitled to one qualifying seat, a party must obtain 2% of the total ballots cast for qualified party-list candidates. 3. Votes cast for a party which is not entitled to be voted for should not be counted. The votes they obtained shall be deducted from the canvass of the total votes for the party-list. 4. Rounding-off is not allowed. 5. Parties other than the 1st party (the party that obtained the highest number of votes based on plurality) may be entitled to additional seats based on the following formula: Each party shall be entitled to not more than three sets. The two percent threshold in computing for the additional seats is unconstitutional. The continued application of the two percent threshold in the application of additional seats in proportion to their total number of votes until all the additional seats will frustrate the attainment of the permissive ceiling that twenty percent of the members of the house of representatives shall consist of party-list representatives. (BANAT v. COMELEC, G.R. No. 179271, Apr. 21, 2009) In declaring the two percent threshold unconstitutional, the SC did not limit the allocation of additional seats to the twopercenters. Thus: The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. 1.

First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a party’s share in the remaining available seats.

Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. (BANAT v. COMELEC, G.R. No. 179271, Apr. 21, 2009.)

In ANGKLA v. COMELEC, the SC affirmed the BANAT formula, to wit: As finally settled in the landmark case of BANAT, Section 11 (b) of RA 7941 is to be applied, thus: Round 1: 1. The participating parties, organizations or coalitions shall be ranked from highest to lowest based on the number of votes they each garnered in the party-list election. 2. Each of those receiving at least twopercent (2%) of the total votes cast for the party-list system shall be entitled to and guaranteed one seat each. Rationale: The statute references a two-percent (2%) threshold. The one-seat guarantee based on this arithmetical computation gives substance to this threshold. Round 2, Part 1: 1. The percentage of votes garnered by each of the parties, organizations and coalitions is multiplied by the remaining available seats after Round 1. All party-list participants shall participate in this round regardless of the percentage of votes they garnered. 2. The party-list participants shall be entitled to additional seats based on the product arrived at in (a). The whole integer of the product corresponds to a party's share in the remaining available seats. Fractional seats shall not be awarded. Rationale: This formula gives flesh to the proportionality rule in relation to the total number of votes obtained by each of the participating party, organization, or coalition. c. A Party-list shall be awarded no more than two (2) additional seats. Rationale: The three-seat cap in the statute is to be observed.

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Round 2, Part 2: 1. The party-list party, organization or coalition next in rank shall be allocated one additional seat each until all available seats are completely distributed. Rationale: This algorithm endeavors to complete the 20% composition for party-list representation in the House of Representatives. During the deliberation, Senior Associate Justice Estela M. Perlas-Bernabe keenly noted that the BANAT formula mirrors the textual progression of Section 11 (b) of RA 7941, as worded, thus: Section 11. Number of Party-List Representatives. — x x x xxx xxx xxx (b) The parties, organizations, and coalitions receiving at least two-percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than twopercent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. The first round of seat allocation is based on the first sentence of Section 11 (b) while the second round is based on the first proviso. To prescribe a method of seat allocation contrary to the unequivocal language of RA 7941 would be nothing short of judicial legislation, if not usurpation of legislative powers, as it would allow us to substitute the wisdom of Congress with ours.(ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc. v. Commission on Elections, G.R. No. 246816,, September 15, 2020). Advantage Given to 2-Percenters Does Not Violate the Equal Protection Clause. All votes, whether cast in favor of two-percenters and nontwo-percenters, are counted once. The perceived "double-counting of votes" does not offend the equal protection clause — it is an advantage given to twopercenters based on substantial distinction that the rule of law has long acknowledged and confirmed. It does not violate the “One Person, One Vote” principle. To not count the 2% vote in the second round would place the 2-percenters at a glaring disadvantage, which is not what the constitutional framers and the legislature intended. It is the 2percenters who have an established right to an advantage in the form of a guaranteed seat. (ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc. v. Commission on Elections, G.R. No. 246816,, September 15, 2020).

The Rule of Law Has Confirmed the Substantial Distinction Between 2-Percenters and Non-2Percenters. The distinction between twopercenters and non-two-percenters has long been settled in Veterans Federation Party v. COMELEC (Veterans) where the Court affirmed the validity of the 2% voting threshold. Veterans effectively segregates and distinguishes between the two (2) classes, twopercenters and non-two-percenters. It explains the rationale behind the voting threshold and differential treatment, viz.: The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them. But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" to ensure meaningful local representation. (ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc. v. Commission on Elections, G.R. No. 246816,, September 15, 2020). Justice Leonen has a keen analysis of the adverse effect of imposing a two-percent (2%) deduction on the two-percenters: “Ignoring votes in the reckoning of proportions runs afoul of a party-list election as a race contested by the entire roster of candidates and won in consideration of all the votes cast by the electorate. Reckoning on the basis of a "recomputed number of votes" artificially redraws the electoral terrain. It results in the distribution of remaining party-list seats based on an altered field of contestants and diminished number of votes. This undoes the logical advantage earned by those that hurdled the two-percent-threshold and enables the election of groups even if their performance was manifestly worst off than those who have hurdled the basic threshold. To concede petitioners' plea would be to negate the valid and sensible distinction between those that hurdled the threshold and those that did not. Ultimately, it violates the party-list system's fundamental objective of enabling "meaningful representation [secured through] the mandate of a sufficient number of people." (citations omitted) (ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc. v.

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Commission on Elections, G.R. No. 246816,, September 15, 2020). Absolute Proportionality Not Prescribed. Section 11, Article VI of the Constitution, however, does not prescribe absolute proportionality in distributing seats to party-list parties, organizations or coalitions. Neither does it mandate the grant of one seat each according to their rank. On the contrary, Congress is given a wide latitude of discretion in setting the parameters for determining the actual volume and allocation of party-list representation in the House of Representatives. BANAT elucidates: x x x The allocation of seats under the party-list system is governed by the last phrase of Section 5(1), which states that the party-list representatives shall be "those who, as provided by law, shall be elected through a party-list system," giving the Legislature wide discretion in formulating the allocation of partylist seats. Clearly, there is no constitutional requirement for absolute proportional representation in the allocation of party-list seats in the House of Representatives. (Emphasis added) In the exercise of this prerogative, Congress modified the weight of votes cast under the party-list system with reason. (ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc. v. Commission on Elections, G.R. No. 246816,, September 15, 2020). Party-list groups garnering less than 2% of the party-list votes may qualify for a seat in the allocation of additional seats depending on their ranking in the second round. The continued operation of the two-percent threshold was deemed "an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of the “broadest possible representation of party, sectoral or group interests in the House of Representatives,” and has been declared unconstitutional. The 20% share in representation may never be filled up if the 2% threshold is maintained. In the same vein, the maximum representation will not be achieved if those party-list groups obtaining less than one percentage are disqualified from even one additional seat in the second round. (Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTM) vs. COMELEC, G.R. No. 207134, May 28, 2015.) Delisting The law provides for 2 separate reasons for the delisting of any national, regional or sectoral party organization or coalition. Section 6(8) of the Party List System Act provides that the COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice

and hearing, the registration of any national, regional or sectoral party organization or coalition. The grounds are: 1. If it fails to participate in the last two (2) preceding elections; or 2. Fails to obtain at least two per centum (2%) of the votes cast under the party list system in the two (2) preceding elections for the constituency in which it was registered (Philippine Guardians Brotherhood, Inc. (PGBI) v. COMELEC, G.R. No. 190529, Apr. 29, 2010) The law is clear – the COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition if it: (a) fails to participate in the last two (2) preceding elections; or (b) fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. The word "or" is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word. XXX Thus, the plain, clear and unmistakable language of the law provides for two (2) separate reasons for delisting. Section 6(8) of RA 7941 provides for two separate grounds for delisting; these grounds cannot be mixed or combined to support delisting; and the disqualification for failure to garner 2% party-list votes in two preceding elections should now be understood, in light of the Banat ruling, to mean failure to qualify for a party-list seat in two preceding elections for the constituency in which it has registered. (Philippine Guardians v. COMELEC, G.R. No.. 190529, Apr. 29, 2010) Qualifications of Party List Representatives (R.A. No. 7941, § 9.) 1. Natural born citizen of the Philippines; 2. Registered voter; 3. Resident of the Philippines for a period of not less than 1 year immediately preceding the day of the election; 4. At least 25 years of age on the day of the election (youth sector nominee must be at least 25 years old but not more than 30 years old on day of election); 5. Able to read and write; 6. A bona fide member of the party or organization he seeks to represent for at least 90 days before the day of the election.

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A nominee who changes his sectoral affiliation within the same party will only be eligible for nomination under the new sectoral affiliation if the change has been effected at least six months before the elections (Amores v. HRET, G.R. No. 189600, June 29, 2010).

Rules on Party-Lists 1. Principle of Social Justice: The inspiration of the system is social justice understood in both the economic and political sense. 2.

Participation not Limited to Sectoral Groups: Participation in the system is not limited to the sectors enumerated by the Constitution or law. The framers of the 1987 Constitution did not intend to leave out nonsectoral parties in the party-list system and exclusively limit it to sectoral groups.

Groups must comply with the Constitution and other applicable laws: The enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of hom*osexuals from participation in the party-list system (Ang Ladlad v. COMELEC, G.R. No. 190582, April 8, 2010).

Three different groups may participate in the party-list system: national parties or organizations, regional parties or organizations, and sectoral parties or organizations.

Rule on National and Regional Parties/Organizations: The national and regional organizations need not be economically marginalized and do not need to organize along sectoral lines but they must be politically or ideologically disadvantaged or marginalized.

Rule on Sectoral Parties: Sectoral parties or organizations may either be 'marginalized and underrepresented' or lacking in 'well-defined political constituencies'. It is enough that their principal advocacy pertains to the special interest and concerns of their sector.

Marginalized and Underrepresented sectors: (HI FLOW PUV) i. Handicapped ii. Indigenous Cultural Communities iii. Fisher Folk iv. Labor v. Overseas Workers vi. Peasant vii. Urban Poor viii. Veterans Sectors that lack 'well defined political constituencies’: (PWEY) ix. Professionals x. Women xi. Elderly xii. Youth

Rule on Political Party Participation: Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. a. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. b. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition (Atong Paglaum v. COMELEC, G.R. No. 203766, April 2, 2013).

Rules on Members of Sectoral Parties or Organizations 1. A majority of the members of both types of sectoral parties or organizations must belong to the sector they represent, i.e. majority must: a. Be marginalized and underrepresented or b. Lack well-defined political constituencies Rules on Nominees of Party-Lists 1. The nominees of sectoral parties or organizations that represent the "marginalized and underrepresented" or that represent those who lack "well-defined political constituencies," must either: a. Belong to their respective sectors or i. To “belong” in the

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marginalized and underrepresented sector does not mean one must "wallow in poverty, destitution or infirmity." ii. It is sufficient that one, or his or her sector, is below the middle class b. Have a track record of advocacy for their respective sectors The nominees of national and regional parties or organizations must be bonafide members of such parties or organizations. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified (Atong Paglaum v. COMELEC, G.R. No. 203766, April 2, 2013). a. The proviso does not authorize a party-list from not complying with the submission of at least five nominees upon its manifestation to participate in the party-list elections. (COCOFED v. COMELEC, G.R. No. 207026, Aug. 6, 2013).

Disqualifications of Parties or Organizations (R.A. No. 7941, § 6.) 1. religious sector; 2. advocates of violence or unlawful means of seeking its goal; 3. foreign party or organization; 4. receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or 5. members or indirectly through third parties for partisan election purposes; 6. fails to comply with laws, rules or regulations relating to elections; 7. declares untruthful statements in its petition; 8. ceased to exist for at least 1 year; or fails to participate in the last 2 preceding elections or, fails to obtain at least 2% of the votes cast under the party-list system in the 2 preceding elections for the constituency in which it has registered. NOTE: The word “or” is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word. Thus, the plain, clear and

unmistakable language of the law provides for two (2) separate reasons for delisting. (Philippine Guardians Brotherhood Inc. v. COMELEC, G.R. No. 190529, Apr. 29, 2010) Who determines whether a party represents a marginalized sector? COMELEC has jurisdiction to determine whether an organization applying for the party list system represents a marginalized sector. It cannot be challenged by certiorari because the decision is based on facts and the SC does not try facts (V.C. Cadangen v. COMELEC, G.R. No. 177179, June 5, 2009). Sectoral parties are not required to adduce evidence showing their track record that they have undertaken to further the cause of the sector they represent. It is sufficient that their ideals are geared towards the cause of the sector they represent (Abang-Lingkod v. COMELEC, G.R. No. 206952, Oct. 22, 2013). Term vs. Tenure TERM The period during which the elected officer is legally authorized to assume his office and exercise the powers thereof Cannot be reduced

TENURE The period during which such officer actually holds the position May be limited by law

Ways by Which Tenure of Members of Congress May Be Shortened: (FRED) 1. Forfeiture of his seat by holding any other office or employment in the government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or subsidiaries (PHIL. CONST., art. VI, § 13.); 2. Voluntary Renunciation of office (PHIL. CONST., art. VI, § 4, ¶ 3.). a. Mere filing of a certificate of candidacy during one’s term is considered voluntary renunciation since the law deems such act as a resignation (Dimaporo v Mitra, G.R. No. 96859, Oct. 15, 1991). 3. Expulsion as a disciplinary action for disorderly behavior (PHIL. CONST., art. VI, § 16, ¶ 3). 4. Disqualification as determined by resolution of the electoral tribunal in an election contest (PHIL. CONST., art. VI, § 17.).

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Vacancy and Special Election In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. Special Election (R.A. No. 6645, as amended by R.A. No. 7166) 1. Special election will be called if vacancy occurs: a. At least 18 months before the next regular election for the members of the Senate; b. At least 1 year before the next regular election for members of the House of Representatives 2. The particular House of Congress where vacancy occurs must pass either a resolution if Congress is in session, or the Senate President or the Speaker must sign a certification, if Congress is not in session a. Declaring the existence of vacancy b. Calling for a special election to be held within 45 to 90 days from the date of the resolution or certification 3. The Senator or representative elected shall serve only for the unexpired term. COMELEC’s Role in a Special Election (R.A. No. 6645, as amended by R.A. No. 7166) In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, COMELEC is required: 1. to call a special election by fixing the date of the special election: a. House of Representatives - the date shall not be earlier than sixty (60) days nor later than ninety (90) after the occurrence of the vacancy b. Senate - the special election shall be held simultaneously with the next succeeding regular election 2. to give notice to the voters of, among other things, the office or offices to be voted for. The calling of an election, that is, the giving notice of the time and place of its occurrence, whether made by the legislature directly or by the body with the duty to give such call, is indispensable to the election’s validity. 1. In a special election to fill a vacancy, the rule is that a statute that expressly provides that an election to fill a

vacancy shall be held at the next general elections fixes the date at which the special election is to be held and operates as the call for that election. 2.

Consequently, an election held at the time thus prescribed is not invalidated by the fact that the body charged by law with the duty of calling the election failed to do so. This is because the right and duty to hold the election emanate from the statute and not from any call for the election by some authority and the law thus charges voters with knowledge of the time and place of the election.

Conversely, where the law does not fix the time and place for holding a special election but empowers some authority to fix the time and place after the happening of a condition precedent, the statutory provision on the giving of notice is considered mandatory, and failure to do so will render the election a nullity.

Thus, the failure of the COMELEC to properly call for a special election to fill a permanent vacancy in the Senate under R.A. 7166 does not nullify the election held since the statute already fixes the date. However, the failure of the COMELEC to do so in case of a permanent vacancy in the House of Representatives would produce the opposite result. (Tolentino v. COMELEC, G.R. No. 148334, Jan. 21, 2004)

District v. Party List Representatives DISTRICT PARTY-LIST REPRESENTATIVE REPRESENTATIVE AS TO ELECTION OR SELECTION Elected according to Elected nationally, with legislative district by party-list organizations the constituents of garnering at least 2% such district. of all the votes cast for the party-list system entitled to 1 seat, which is increased according to proportional representation, but is in no way to exceed 3 seats per organization. AS TO RESIDENCY REQUIREMENT Must be a resident of No special residency his legislative district requirement in a for at least 1 year legislative district. immediately before the election.

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AS TO MANNER OF CANDIDATE’S ELECTION Elected personally (i.e. Voted upon by party or by name of candidate). organization; it is the party who designates who will sit as its representative. AS TO EFFECT OF CHANGE OF AFFILIATION DURING THE TERM Does not lose seat if If she/he changes party he/she changed party or affiliation, loses his or affiliation. seat, in which case he/she will be substituted by another qualified person in the party/organization based on the list submitted to the COMELEC. AS TO MANNER OF FILLING VACANCIES A special election may A substitution will be be held provided that made within the party, the vacancy takes based on the list place at least 1 year submitted to the before the next COMELEC. election. AS TO EFFECT OF LOSING IN THE PREVIOUS ELECTION A district A party-list representative is not representative cannot prevented from running sit if he ran and lost in again as a district the previous election. representative if he/she lost during the previous election. AS TO EFFECT OF CHANGE OF AFFILIATION PRIOR TO ELECTION A change in affiliation A change in affiliation within months prior to within 6 months prior to election does not election prohibits the prevent a district party-list representative from representative from running under his new sitting as party. representative under his new party/organization.

C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS Privileges (PHIL. CONST., art. VI, § 11.) Immunity from Arrest — Legislators are privileged from arrest while Congress is in session only (whether regular or special) with respect to offenses punishable by not more than 6 years of

imprisonment. The immunity does not extend to the prosecution of criminal offenses. 1. Right of Members to Attend Congressional Sessions: A Senator, who remains in detention, cannot be allowed to go to the Senate to attend all its official functions. All prisoners whether under preventive detention or serving final sentence cannot practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention. The presumption of innocence does not carry with it the full enjoyment of civil and political rights (Trillanes v. Judge Pimentel, G.R. No 179817, June 27, 2008). Privileged Speech — No member shall be questioned or held liable in any forum other than his/her respective Congressional body for any speech or debate in Congress or in any Committee thereof. “Speech or debate” includes: 1. Utterances made by Congressmen in the performance of their official functions, such as speeches delivered, statements made, or votes cast in the halls of Congress, while the same is in session 2. Bills introduced in Congress, whether the same is in session or not 3. Other acts performed by Congressmen, either in Congress or outside the premises housing its offices, in the official discharge of their duties as members of Congress and of Congressional Committees duly authorized to perform its functions as such, at the time of the performance of the acts in question (Jimenez v. Cabangbang, G.R. No. L-15905, Aug. 3, 1966). The privilege arises not because the statement is made by a lawmaker, but because it is uttered in furtherance of legislation. It cannot be invoked when the lawmaker's speech or utterance is extraneous to the due functioning of the legislative process (Trillianes v. Castillo-Marigomen, G.R. No. 223451, March 14, 2018). To participate in or respond to media interviews is not an official function of any lawmaker; it is not demanded by his sworn duty nor is it a component of the process of enacting laws. A lawmaker may discharge his duties and legislate without having to communicate with the press. A lawmaker's participation in media interviews is not a legislative act, but is "political in nature,” outside the ambit of Page 51 of 479

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the immunity conferred under the Speech or Debate Clause (Trillianes v. Castillo-Marigomen, G.R. No. 223451, March 14, 2018). A complaint for disbarment or disciplinary action based on disparaging remarks made by an incumbent Senator against the Chief Justice will not prosper because of the Speech and Debate clause (Pobre v. Defensor-Santiago, A.C. No. 7399, Aug. 25, 2009). Limitations: 1. Protection is only against prosecution in any forum other than Congress itself. Hence, the Senate or the House may discipline their respective members. 2. The ‘speech or debate’ must be made in performance of their duties as members of Congress. 3. Congress need not be in session when the utterance is made, as long as it forms part of legislative action (e.g. part of the deliberative and communicative process used to participate in legislative proceedings in consideration of proposed legislation or with respect to other matters with Congress’ jurisdiction) Requirements to Avail of the Privilege of Speech and Debate Clause 1. That the remarks must be made while the legislature or the legislative committee is functioning, that is, in session; and 2. That they must be made in connection with the discharge of official duties. Inhibitions (PHIL. CONST., art. VI, § 12.) All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. Therefore, senators and representatives are not prohibited from introducing bills that have conflicts with their interest, as long as they disclose. Disqualifications DISQUALIFICATION Cannot hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including GOCCS or their subsidiaries.

WHEN APPLICABLE During his term. If he does so, he forfeits his seat in Congress.

During the term for Cannot be appointed to any office which was which he was elected. created or the emoluments thereof increased. Cannot personally During term of office. appear as counsel before any court of justice, electoral tribunal, quasi-judicial and administrative body. Cannot be financially During term of office. interested directly or indirectly in any contract, franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary. Cannot intervene in During term of office. any matter before any office of the government when it is for his pecuniary benefit or where he may be called upon to act on account of his office. (PHIL. CONST., art. VI, § 13 & 14.) A Senator who is likewise the Chairman of the National Red Cross does not forfeit his seat in the Senate because the National Red Cross is a private corporation performing a public function (Liban v. Gordon, G.R. No. 175352, Aug. 15, 2009). A congressman cannot buy nominal shares in a corporation and appear in “intervention” before the SEC. This is a circumvention of the constitutional policy (Puyat v. De Guzman, G.R. No. L-51122, Mar. 25, 1982). Rules on Increase in Salaries (PHIL. CONST., art. VI, § 10.) No increase in their salaries shall take effect until after the expiration of the full term (not tenure) of all the members of the Senate and the House of Representatives approving such increase. Since the Constitution provides for rules on “salaries” and not “emoluments”, members of the House may appropriate for themselves other sums

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of money such as travel allowances, as well as other benefits. 3.

A new senator or representative elected through a special election is not entitled to the new salary rate because the new members are serving the terms of those who approved the increase. Thus, they are not entitled to the increase.

D. QUORUM AND VOTING MAJORITIES Sessions (PHIL. CONST., art. VI, § 15.) 1.

Regular sessions - Congress convenes once every year on the 4th Monday of July (unless otherwise provided for by law). It continues in session for as long as it may determine, until 30 days before the opening of the next regular session, excluding Saturdays, Sundays, and legal holidays. Special Sessions - called by the President at any time when Congress is not in session i.e. when the legislature is in recess.

Regular v. Special Session 1. Under the 1935 Constitution, the distinction between regular and special sessions was significant because during a special session, the legislature could consider only the subject matter designated by the President. 2. Under the present law, which leaves discretion to Congress as to the number of regular session days, the distinction is no longer significant for the purpose of determining what the legislature may consider. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Kinds of Recess 1. Voluntary Recess - takes place before the adjournment of Congress like Christmas recess 2. Compulsory Recess - takes place when the Congress adjourns Quorum to do business - Majority of each House shall constitute a quorum. 1. A smaller number may adjourn from day to day and may compel the attendance of absent members. 2. In computing a quorum, members who are outside the country and thus outside of

each House’s coercive jurisdiction are not included. Majority in Senate: The basis in determining the existence of a quorum in the Senate is the total number of Senators who are in the country and within the coercive jurisdiction of the Senate (Avelino v. Cuenco, G.R. No. L-2821, March 4, 1949). Majority of the House: means 1/2 +1 of the actual membership of the House who are within the coercive jurisdiction of the Congress (within the Philippines). Majority of all members of Congress: means majority of the entire composition of Congress regardless of the number of members present or absent during time the question is brought to the floor as long as there is quorum (e.g. (24/2) +1 for the Senate and (250/2) +1 for the HOR)

Voting Majorities of Congress SENATE NATURE OF REQUIRED PROCEEDING VOTES For the 2/3 of All effectivity of treaty or international agreement Conviction in 2/3 of All impeachment

BASIS Sec. 21, Art. VII

Sec. 3(6), Art. XI

HOUSE OF REPRESENTATIVES NATURE OF REQUIRED BASIS PROCEEDING VOTES Affirm or 1/3 of All Sec. 3(3), Art. Override XI Resolution to Impeach COMMON TO BOTH NATURE OF REQUIRED BASIS PROCEEDING VOTES Discipline 2/3 of All Sec. 16(3) Members Election of Majority of All Sec. 16(1) Officers Declare the 2/3 of Both Sec. 23 Existence of a Houses, State of War voting separately Override 2/3 of All in Sec. 27(1) President's the House of Veto Origin

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BAR OPERATIONS 2023 Quorum to do business Yeas and Nays in the Journal Tax Exemption Confirmation of new VP nominated by President Determination that Pres. unable to discharge powers & duties To break a tie in presidential election Revocation of Proc. of Martial Law/ Suspension of Priv. of Writ of Habeas Corpus Extension of Proc. of ML/Suspension. of Priv. of WHC To Concur w/ President in granting amnesty

Majority w/in Compulsory Power of the House 1/5 of Members present of each house Majority of All Majority of Both Houses, voting separately 2/3 of Both Houses, voting separately

Sec. 16(2); Avelino v. Cuenco

Majority of All, voting separately Majority of All, voting jointly

Art. VII, Sec. 4

Majority of All, voting jointly

Art. VII, Sec. 18

Majority of All

Art. VII, Sec. 19

Sec. 16(4)

Sec. 28(4) Art. VII, Sec. 9 Art. VII, Sec. 11

Art. VII, Sec. 18

Instances when Congress is Voting Separately 1. Determining the winning candidate for President or Vice President in case two or more candidates have an equal and highest number of votes (PHIL. CONST., art. VII, § 4.) 2. Determine President’s disability (PHIL. CONST., art. VII, § 11.) 3. Declaring existence of a state of war in joint session (PHIL. CONST., art. VI, § 23(1).) 4. Confirming the President’s nomination of a Vice-President from Congress whenever there is a vacancy in the Office of the Vice President (PHIL. CONST., art. VII, § 0.) 5. Proposing Constitutional amendments (PHIL. CONST., art. XVII, § 1.) Instances when Congress is Voting Jointly 1. Revoking or extending proclamation suspending the privilege of writ of habeas corpus (PHIL. CONST., art. VII, § 18.)

Revoking or extending declaration of martial law (PHIL. CONST., art. VII, § 18.)

Officers of Congress (PHIL. CONST., art. VI, § 16.) 1. Senate President 2. Speaker of the House 3. Such other officers as it may deem necessary. Election of Officers 1. By a majority vote of all respective members 2. Congress has the sole prerogative in choosing its officers and the manner by which they are chosen. (Defensor-Santiago v. Guingona, G.R. No. 134577, Nov. 18, 1988) 3. While the Constitution mandates that the President of the Senate must be elected by a number constituting more than one half of all the members thereof, it does not provide that the members who will not vote for him shall ipso facto constitute the "minority," who could thereby elect the minority leader. Verily, no law or regulation states that the defeated candidate shall automatically become the minority leader. (Id.) 4. The Senate President or Speaker of the HOR is elected through a majority vote of all its respective Members, and such other officers as may deem necessary. (PHIL. CONST., art. VI, § 16.)

E. DISCIPLINE OF MEMBERS Suspension v. Expulsion 1. Suspension - shall not exceed 60 days, with the concurrence of 2/3 of all its members. 2. Expulsion - concurrence of 2/3 of all its members. Nature of Disciplining Authority Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed 60 days. (PHIL. CONST., art. VI, § 16(3).) The disciplinary action taken by Congress against a member is not subject to judicial review because each House is the sole judge of what disorderly conduct is (Osmeña v. Pendatun, G.R. No. L-17144, Oct. 28, 1960). The parliamentary immunity of members of Congress is not absolute. While parliamentary

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immunity guarantees the legislator complete freedom of expression without fear of being made responsible before the courts or any other forum outside of Congressional Hall, it does NOT protect him (her) from responsibility before the legislative body itself whenever words and conduct are considered disorderly or unbecoming a member thereof. For unparliamentary conduct, members of Congress can be: 1. censured, 2. committed to prison, 3. suspended, and 4. even expelled by the votes of their colleagues (Osmeña v. Pendatun, G.R. No. L-17144, Oct. 28, 1960). Is preventive suspension considered an interruption of a term? Preventive suspension is not considered “interruption” of a term under Sec. 8, Art. X and Sec. 43 (b) of R.A. No. 7160. A preventive suspension cannot simply be considered an interruption because the suspended official continues to stay in office although barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended official’s continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists (Aldovino v. COMELEC, G.R. No. 184836, Dec. 23, 2009). Authority of Sandiganbayan to Suspend A Congressman can be preventively suspended by the Sandiganbayan for violation of Anti-Graft Law notwithstanding the exclusive power of Congress to discipline its members. The suspension contemplated in Article VI, Section 16(3) of the Constitution is a punishment that is imposed by the Senate or House of Representatives upon an erring member. It is distinct from the suspension under Section 13 of the Anti-Graft and Corrupt Practices Act, which is not a penalty but a preventive measure. Since Section 13 of the Act does not state that the public officer must be suspended only in the office where he is alleged to have committed the acts which he has been charged, it applies to any office which he may be holding (Santiago v. Sandiganbayan, G.R. No. 128055, April 18, 2001).

F. PROCESS OF LAW-MAKING 1. FUNCTION OF THE BICAMERAL CONFERENCE COMMITTEE BICAMERAL CONFERENCE COMMITTEE – an extra-constitutional creation which is intended to resolve conflicts between House and Senate versions of bills. (Bernas, 1987 Philippine Constitution: A Commentary, 790, 2009). Scope Of The Bicameral Conference Committee’s Powers (A2R2P) 1. Adopt the Bill entirely; or 2. Amend; or 3. Revise; or 4. Reconcile the House Bill and the Senate Bills; 5. Propose entirely new provisions not found in either the House Bill or the Senate Bill. (Amendments in the nature of a substitute)

2. LIMITATIONS ON LEGISLATIVE POWER a. Limitation on Revenue, Appropriation, and Tariff Limitation: So long as the amendment is germane to the subject of the bill before the Committee. In a bicameral system, bills are independently processed by both Houses of Congress. It is not unusual that the final version approved by one House differs from what has been approved by the other. The “conference committee,” consisting of members nominated from both Houses, is an extraconstitutional creation of Congress whose function is to propose to Congress ways of reconciling conflicting provisions found in the Senate version and in the House version of a bill. It is within the power of a conference committee to include in its report an entirely new provision that is not found either in the House bill or in the Senate bill. If the committee can propose an amendment consisting of one or two provisions, there is no reason why it cannot propose several provisions, collectively considered as an "amendment in the nature of a substitute," so long as such amendment is germane to the subject of the bills before the committee. After all, its report was not final but needed the approval of both houses of Congress to become valid as an act of the legislative department (Tolentino v. Secretary of Finance, G.R. No. 115455, Aug. 25, 1994).

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Bills that must originate in the House (PuP-TL) (PHIL. CONST., art. VI, § 24.) Note: While these bills must originate from the House, the Senate may introduce amendments and pass a completely different bill from the original one from the house. What is required only is that the bill originate in the House.

(Tio v. Videogram Regulatory Board, G.R. No. L75697, June 18, 1987).

1. Bills authorizing the increase of Public debt ● One which creates public indebtedness such as bills for the issuance of bonds and other forms of obligations

Bills passed by either House must pass 3 readings on separate days, and printed copies thereof in its final form distributed to its members 3 days before its passage.

2. Private bills ● One affecting purely private interest, such as one granting a franchise.

FIRST READING - Only the title is read; the bill is passed to the proper committee

3. Tariff bills ● One that specifies the rates or duties to be imposed on imported articles 4. Bills of Local application ● A bill of local application, such as one asking for the conversion of a municipality into a city, is deemed to have originated from the House provided that the bill of the House was filed prior to the filing of the bill in the Senate; even if in the end, the Senate approved its own version (Tolentino v. Secretary of Finance, G.R. No. 115455, Oct. 30, 1995). Revenue Bills One specifically designed to raise money or revenue through imposition or levy. 1. For example, registration fees used for the construction and maintenance of highways. (PAL vs. Edu, G.R. No. L-41383, Aug. 15, 1988). 2. The Videogram Regulatory Board Law imposing a tax on video rentals does not make the law a revenue bill because the purpose is primarily regulation, and not to raise revenue. (Tio v. Videogram Regulatory Board, G.R. No. L-75697, June 18, 1987) General Limitations (PHIL. CONST., art. VI, § 26.) Every bill shall embrace only one (1) subject, as expressed in the title thereof, which does not have to be a complete catalogue of everything stated in the bill. An Act creating the Videogram Regulatory Board including 30% tax on gross receipts on video transactions was held to be valid. Taxation is sufficiently related to regulation of the video industry

It is sufficient that the title expressing the general subject of the bill and all the provisions of the statute are germane to such general subject (Sumulong v. COMELEC, G.R. No. L-48609, Oct. 10, 1941).

SECOND READING - Entire text is read and debates are held; amendments introduced. THIRD READING - Only the title is read, no amendments are allowed. Vote shall be taken immediately thereafter and the yeas and nays entered in the journal. Exceptions: ● When the President certifies to the necessity of the bill’s immediate enactment to meet a public calamity or emergency, the three readings can be held on the same day. (PHIL. CONST., art. VI, § 26(2).) ● When the offices of the President and VicePresident are both vacant, the bill calling for a special election to elect a President and Vice-President is deemed certified. (PHIL. CONST., art. VII, § 10.) See Part V(1) on the Substantive and Procedural Limitations on Congress’ Law-Making Powers.

a. Presidential Veto Congressional Override

and

Presidential Veto Every bill passed by Congress shall be presented to the President before it becomes law. To approve, he shall sign it. Otherwise, he shall veto the bill. (PHIL. CONST., art. VI, § 27(1).) Overriding a Veto The President shall transmit to House where the bill originated. If, after such reconsideration, 2/3 of all the members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by 2/3 of all the members of that House, it shall become law.

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To override the veto, at least 2/3 of all the members of each House must agree to pass the bill. In such case, the veto is overridden and becomes a law without need of presidential approval. (PHIL. CONST., art. VI, § 27(1).) Item Veto General Rule: As a general rule, if the President disapproves of a provision in a bill approved by congress, he must veto the entire bill. Exception: As an exception, the President is allowed to item-veto in these types of bills: (ART) 1. Appropriation 2. Revenue, and 3. Tariff (Sec. 27 (2)). Exceptions to the Exception: DOCTRINE OF INAPPROPRIATE PROVISIONS A provision that is constitutionally inappropriate for an appropriation bill may be subject to veto even if it is not an appropriation or revenue “item”. (Gonzalez v. Macaraig, Jr., G.R. No. 87636, Nov. 19, 1990). EXECUTIVE IMPOUNDMENT - Refusal of the President to spend funds already allocated by Congress for a specific purpose. It is in effect, an “impoundment” of the law allocating such expenditure of funds. NOTE: There is no doctrine for or against executive impoundment. It has not been judicially questioned. Type of Item Bill TYPE OF BILL Revenue/tax bill Appropriations bill

ITEM Subject of the tax, and tax rate imposed thereon Indivisible sum dedicated to a stated purpose

VETO OF RIDER - A rider is a provision that does not relate to a particular appropriation stated in an appropriation bill. Being an invalid provision under Section 25 (2), the President may exercise item veto. Internal Rules As part of their inherent power, each House may determine its own rules. Hence, the courts cannot intervene in the implementation of these rules insofar as they affect the members of Congress. (Arroyo v. De Venecia, G.R. No. 127255, Aug. 14, 1997) ● The only limitation to the power of Congress to promulgate its own rules is the observance of quorum, voting, and

publication when required. As long as these requirements are complied with, the Court will not interfere with the right of Congress to amend its own rules. (Pimentel v. Senate Committee, G.R. No. 187714, March 8, 2011) Congressional Journals and Records (PHIL. CONST., art. VI, § 16.) General Rule: The Journal is conclusive upon the courts. Exception: An enrolled bill prevails over the contents of the Journal. ENROLLED BILL - The official copy of approved legislation and bears the certifications of the presiding officers of each House. Thus, where the certifications are valid and are not withdrawn, the contents of the enrolled bill are conclusive upon the courts as regards the provision of that particular bill. ENROLLED BILL DOCTRINE – The signing of a bill by the Speaker of the House and the President of the Senate and its certification by the secretaries of both Houses of Congress that such bill was passed are conclusive of its due enactment (Arroyo v. De Venecia, G.R. No.127255, Aug. 14, 1997). ENROLLED BILL Official copy of approved legislation, with certifications of presiding officers Submitted to the President for signature, indicating approval

JOURNAL

RECORD

Abbreviated account of daily proceedings in Congress

Word for word transcript of deliberations in Congress

Provides proof of what transpired during deliberations

Provides detailed proof of what transpired during deliberations Supports the journal entry

Insures publicity of legislative proceedings

Cases When the Constitution Requires Yeas And Nays To Be Recorded 1. Last and third readings of a bill 2. Upon 1/5 members’ request 3. Re-passing a bill over Presidential veto

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Adjournment Neither House during the sessions of the Congress, shall without the consent of the other, adjourn for more than 3 days, nor to any other place than that in which the two Houses shall be sitting. (PHIL. CONST., art. VI, § 16.) Types of Adjournment 1. Day to day 2. Yearly 3. Sine die — with no appointed date for resumption ‘Place’ Refers not to the building but to the political unit where the Houses may be sitting.

G. RULES ON APPROPRIATION AND RE-ALIGNMENT Rules on Appropriation All appropriation bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. (PHIL. CONST. § 24) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. (PHIL. CONST. § 25 (7)) Limits on Power to Appropriate The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law (PHIL. CONST. § 25 (1)). Prohibition on “Riders” in Appropriation Bills No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. (PHIL. CONST. § 25 (2)). A provision which refers to the fundamental government policy matters of the calling to active duty and the reversion to inactive status of reserve officers in the AFP is a non-appropriation item inserted in an appropriation measure and is a violation of the constitutional inhibition against

“riders” to the General Appropriations Act (GAA) (Garcia v Mata, G.R. No. L-33713 July 30, 1975). Following liberal construction, a provision will not be considered a “rider” if: 1) it is not inconsistent with or foreign to the general subject, 2) considered in furtherance of such subject by providing for the method and means of carrying out the general subject (Fariñas v Executive Secretary; G.R. No. 147387, 2003).  Transfer of Funds / Re-alignment General Rule: No law shall be passed authorizing any transfer of appropriations; Exception (Exclusive List): The following may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations: 1. The President 2. Senate President 3. Speaker of the House of Representatives, 4. the Chief Justice of the Supreme Court 5. the heads of Constitutional Commissions (PHIL. CONST. § 25 (5)) Individual members of Congress may only determine the necessity of the realignment of savings in the allotments for their operating expenses because they are in the best position to know whether there are savings available in some items and whether there are deficiencies in other items of their operating expenses that need augmentation. However, it is the Senate President and the Speaker of the House of Representatives who shall approve the realignment. (Philippine Constitution Association v. Enriquez, G.R. No. 113105, 19 August 1994.) Discretionary Funds Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. (Araullo v. Aquino, G.R. No. 209287, 1 July 2014) Special Purpose Fund A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. (Belgica v. Ochoa, Jr. G.R. No. 208566, 19 November 2013)

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H. ELECTORAL TRIBUNALS AND COMMISSION ON APPOINTMENTS ELECTORAL TRIBUNALS

party he represents in the tribunal, formal affiliation with another political party, or removal for other valid cause. A member may not be expelled by the HOR for ‘party disloyalty’ short of proof that he has formally affiliated with another political group. (Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991)

1. COMPOSITION The Senate and the House of Representatives shall each have an Electoral Tribunal (SET and HRET). (PHIL. CONST., art. VI, § 17.) Composition – Nine (9) members 1. Three (3) Supreme Court Justices to be designated by the Chief Justice. o The senior Justice in the Electoral Tribunal shall be its Chairman. 2. Six (6) Members of the Senate or House, as the case may be. They shall be chosen on the basis of proportional representation The presence of the three Justices, as against six members of [each House], was intended as an additional guarantee to ensure impartiality in the judgment of cases before it. As such, there should always be one member of the Tribunal who is a Justice. If all three Justice-members inhibit themselves in a case, the Supreme Court will designate another Justice to chair the Electoral Tribunal. (Reyes v. HRET, G.R. No. 221103, Oct. 16, 2018) Nature of Tribunals The tribunal was created to function as a nonpartisan court although two-thirds of its members are politicians. It is a non-political body in a sea of politicians. As judges, the members of the tribunal must be non-partisan. They must discharge their functions with complete detachment, impartiality, and independence — even independence from the political party to which they belong. Hence, "disloyalty to party" and "breach of party discipline," are not valid grounds for the expulsion of a member of the tribunal. (Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991) An Electoral Tribunal is a quasi-judicial body. Therefore, the degree of proof required is only substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (David v. SET, G.R. No. 221538, Sept. 20, 2016) Security of Tenure Membership in the HRET may not be terminated except for a just cause, such as the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political

2. POWERS AND JURISDICTION Jurisdiction Each Electoral Tribunal shall be the sole judge of all contests relating to the (ERQ) Election, Returns and Qualifications of their respective members. This includes determining the validity or invalidity of a proclamation declaring a particular candidate as the winner. “Qualifications” are not limited to the qualifications prescribed by the Constitution for a Member of Congress under Art. VI, Sec. 6. (Guerrero v. COMELEC, G.R. No. 137004, July 26, 2000) The COMELEC’s jurisdiction over election contests relating to election, returns, and qualifications ends, and the HRET's own jurisdiction begins once a winning candidate is: 1. proclaimed 2. taken his oath, and 3. assumed office as a Member of the House of Representatives. (Aggabao v. COMELEC, G.R. No. 163756, Jan. 26, 2005) Thus, in an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as Congressman is raised, that issue is best addressed to the HRET. (Guerrero v. COMELEC, G.R. No. 137004, July 26, 2000) Once COMELEC loses its jurisdiction, the proper remedy is to file a petition for quo warranto before the HRET and not a petition for certiorari before the Supreme Court. (Señeres v. COMELEC, G.R. No. 178678, Apr. 16, 2009) NOTE: The Constitution provides that a person assumes office “at noon on the 30th day of June”. The Oath of Office the petitioner presented is not valid. As far as the court is concerned, she took her oath on 5th of June which is not the one prescribe by the Constitution. Therefore, the COMELEC still has jurisdiction. Before there is a valid taking of the oath, it must be made: 1. before the Speaker of the House of Representatives, and

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in open session. (Reyes v. COMELEC, G.R. No. 207264, June 25, 2013)

Does the HRET have jurisdiction over preproclaimed controversies? No, the COMELEC has exclusive jurisdiction over pre-proclaimed controversies. (Omnibus Election Code, § 242) Is jurisdiction lost upon withdrawal or protest? No. Jurisdiction once acquired, is not lost upon the instance of the parties, but continues until the case is terminated. Mere filing of a motion to withdraw protest, without any action on the part of the tribunal, does not divest it of jurisdiction. An election protest is impressed with public interest in the sense that the public is interested in knowing what happened in the elections. Thus, private interest must yield to the common good. (Robles v HRET, G.R. No. 86647, Feb. 5, 1990) Election Contest – where a defeated candidate receiving the second highest number of votes challenges the qualifications of a winning candidate and claims for himself the seat of a proclaimed winner. ● In the absence of an election contest, the Electoral Tribunal is without jurisdiction. However, each House can expel its own members or even defer their oath taking until their qualifications are determined. This may be exercised even without an election contest. The power of the HRET to determine the citizenship of a winning candidate does not include looking at the grant of citizenship to the candidate’s ascendant. That would be a prohibited collateral attack (Vilando v. HRET, G.R. Nos. 192147 & 192149, Aug. 23, 2011). An Electoral Tribunal may annul election results if in its determination, fraud, terrorism or other electoral irregularities existed to warrant the annulment. Because in doing so, it is merely exercising its constitutional duty to ascertain who among the candidates received the majority of the valid votes cast. (Abayon v. HRET, G.R. No. 222236, May 3, 2016) Since the Electoral Tribunals are independent constitutional bodies: Neither Congress nor the Courts may interfere with procedural matters relating to the functions of the Electoral Tribunals. (Angara v. Electoral Commission, G.R. No. L-45081, July 15, 1936)

●

Its members may not be arbitrarily removed from their positions in the tribunal by the parties that they represent. Neither may they be removed for not voting according to party lines, since they are acting independently of Congress. (Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991)

The mere fact that the members of either the Senate or the House sitting on the Electoral Tribunal are themselves the ones sought to be disqualified (due to the filing of an election contest against them) does not warrant the disqualification of all the members of the Electoral Tribunal. (Abbas v. SET, G.R. No. 83767, Oct. 27, 1988) ● Judicial review of decisions of the Electoral Tribunals may be had with the Supreme Court only on the ground of grave abuse of discretion, the decision or resolution having been rendered without or in excess of jurisdiction. (Pimentel v. HRET, G.R. No. 141489, Nov. 29, 2002) E.g. A final vote tally made by an Electoral Tribunal without supporting evidence has been struck down by the Court. (Lerias v. COMELEC, G.R. No. 97105, Oct. 15, 1991) When the names of the parents of a foundling cannot be discovered despite a diligent search, but sufficient evidence is presented to sustain a reasonable inference that satisfies the quantum of proof required to conclude that at least one or both of his or her parents is Filipino, then this should be sufficient to establish that he or she is a natural-born citizen. When these inferences are made by the SET in the exercise of its sole and exclusive prerogative to decide the qualifications of the members of the Senate, then there is no grave abuse of discretion. (David v. SET, G.R. No. 221538, Sept. 20, 2016) The cardinal objective in ballot appreciation is to discover and give effect to, rather than frustrate, the intention of the voter. Extreme caution is observed before any ballot is invalidated and doubts are resolved in favor of the ballot’s validity. This Court finds no grave abuse of discretion by the HRET in its findings after its careful review of the objected ballots and guided by existing principles, rules and rulings on its appreciation. (Locsin v. HRET, G.R. No. 204123, March 19,2013) Rule Making Power The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and

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regulations relative to matters within its jurisdiction, including the period of filing election protests before it, is beyond dispute. It’s rule-making power necessarily flows from the general power granted it by the Constitution. (Lazatin v HRET, G.R. No. 84297, 1998)

2. 3. 4.

COMMISSION ON APPOINTMENTS 1. COMPOSITION Composition 1. Senate President as ex-officio chairman 2. 12 Senators 3. 12 Members of the House The Commission on Appointments (CA) acts as a legislative check on the appointing authority of the President. For the effectivity of the appointment of certain key officials enumerated in the Constitution, the consent of the CA is needed. (Bernas) Manner of Composition Elected on the basis of proportional representation from the political parties and party-list organizations within 30 days after the Senate and the House of Representatives shall have organized with the election of the Senate President and the Speaker of the House (PHIL. CONST., art. VI, § 19.) The Constitution does not require that the “political parties” be registered before the COMELEC. (Daza v. Singson, G.R. No. 86344, Dec. 21, 1989) The minimum required number of elected senators belonging to the same political party in order for the party to qualify for a seat in the CA is at least two (2) elected senators for every seat in the CA. (Guingona v. Gonzales, G.R. No. 106971, March 1, 1993). The Constitution does not require that the full complement of 12 senators be elected to the membership in the CA before it can discharge its functions and that it is not mandatory to elect 12 senators to the CA (Guingona vs. Gonzales, G.R. No. 106791, March 1, 1993). The two Houses have primary jurisdiction on who should sit in the CA. This includes determination of party affiliation and number of party members for purpose of determining proportional representation (Drilon v. De Venecia, G.R. No. 180055, July 31, 2009). Voting 1. The Commission shall rule by a majority vote of all the Members. (PHIL. CONST., art. VI, § 18.)

The chairman shall only vote in case of a tie. (Id.) The Commission shall act on all appointments submitted to it within 30 session days. (Id.) The Commission shall meet only while Congress is in session, at the call of its Chairman or a majority of all its members. (PHIL. CONST., art. VI, § 19.)

2. POWERS AND JURISDICTION Jurisdiction (PHIL. CONST., art. VII, § 16.) The Commission on Appointments shall confirm the appointments by the President with respect to the following positions: (E-MA²-C) 1. Heads of the Executive Departments o Exception: Appointment of Vice President as a member of the Cabinet needs no confirmation (PHIL. CONST., art. VII, § 15.) 2. Ambassadors, 3. Other public Ministers or consuls 4. Officers of the AFP from the rank of Colonel or Naval Captain and above; and 5. Other officers whose appointments are vested in him by the Constitution (e.g. COMELEC members) o Examples: Chairmen and commissioners of the CSC, COMELEC, and COA; regular members of the Judicial Bar Council (JBC) The consent of Commission on Appointments is required only in the 1st sentence enumeration of Art. VII, Section 16. (Sarmiento v. Mison, G.R. No L-79974, Dec. 17, 1987) NOTE:

Limitations ● Congress cannot by law prescribe that the appointment of a person to an office created by such law shall be subject to confirmation by the CA. ● Appointments extended by the President to the enumerated positions while Congress is not in session shall only be effective until disapproval by the CA, or until the next adjournment of Congress. ● Since the Commission on Appointments is an independent constitutional body, its rules of procedure are outside the scope of congressional powers as well as that of the judiciary. For further discussion on this topic, see VI(C)(2) [Powers of the President: Power of Appointment] of this Reviewer. Page 61 of 479

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POWERS OF CONGRESS

General Classification 1. Legislative a. General plenary power b. Specific power of appropriation c. Taxation d. Expropriation e. Legislative investigation f. Question hour

2. Non-Legislative a. b. c. d. e. f. g. h. i.

Canvass presidential elections Declare the existence of a state of war Delegation of emergency powers Call a special election for President and Vice President Concur to treaties and amnesties Propose constitutional amendments Confirm certain appointments Impeach Decide the disability of the President in cases where majority of the Cabinet dispute his assertion that he is able to discharge his duties Revoke or extend proclamation of suspension of privilege of writ of habeas corpus or declaration of martial law Power with regard to utilization of natural resources

1. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS LEGISLATIVE INQUIRIES (PHIL. CONST., art. VI, § 21.) Scope The power of legislative investigation includes: 1. Power to issue summons and notices; 2. Power to punish or declare a person in contempt 3. The power to determine the rules of its proceedings Limitations: (ADR) 1. The inquiry must be in Aid of legislation. 2. The inquiry must be conducted in accordance with the ‘Duly published rules of procedure’ of the House conducting the inquiry; and 3. The rights of persons appearing in or affected by such inquiries shall be Respected. (e.g., right to due process, right against self- incrimination) (Bernas, 1987

Philippine Constitution: A Commentary, 761, 2009). Nature and Purpose The power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to effect or change; and where the legislative body does not itself possess the requisite information — which is not infrequently true — recourse must be had to others who do possess it. (Arnault v. Nazareno, G.R. No. L-3820, July 18, 1950) Legislative inquiries must be conducted “in aid of legislation” which does not necessarily mean that there is pending legislation regarding the subject of the inquiry. Hence, the materiality of a question is determined not by its connection to any pending legislation, but by its connection to the general scope of the inquiry. (Bengzon v. Senate Blue Ribbon Committee, G.R. No. 89914, Nov. 20, 1991) If the investigation is no longer “in aid of legislation” but, “in aid of prosecution” where the stated purpose of the investigation is, to determine the existence of violations of the law, it is beyond the scope of congressional powers. Compulsory Process The power of legislative investigation includes the power to compel the attendance of witnesses. Corollary to the power to compel the attendance of witnesses is the power to ensure that said witnesses would be available to testify in the legislative investigation. (Standard Chartered v. Senate, G.R. No. 167173, Dec. 27, 2007). Duly Published Rules of Procedure It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put the public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. Publication in the internet does not satisfy the requirement of publication as provided in the Constitution (Garcillano v. House of Representatives, G.R. No. 170338, Dec. 23, 2008).

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Right against Self-Incrimination A subpoenaed witness cannot refuse to attend a legislative inquiry by invoking his or her right against self-incrimination. Such right may be invoked only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them. (Sabio v. Gordon, G.R. No. 174340, Oct. 17, 2006). Non-Applicability of the Sub Judice Rule to Inquiries in Aid of Legislation The mere filing of a criminal or an administrative complaint before a court or a quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or an administrative investigation. (Standard Chartered v. Senate, G.R. No. 167173, Dec. 27, 2007). A legislative investigation in aid of legislation and court proceedings have different purposes. On one hand, courts conduct hearings or like adjudicative procedures to settle, through the application of a law, actual controversies arising between adverse litigants and involving demandable rights. On the other hand, inquiries in aid of legislation are, inter alia, undertaken as tools to enable the legislative body to gather information and, thus, legislate wisely and effectively; and to determine whether there is a need to improve existing laws or enact new or remedial legislation, albeit the inquiry need not result in any potential legislation. On-going judicial proceedings do not preclude congressional hearings in aid of legislation. (Romero v. Estrada, G.R. No. 174105, April 2, 2009) Power to Punish for Contempt The power to punish contempt must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? (Standard Chartered v. Senate, G.R. No. 167173, Dec. 27, 2007). The exercise by Congress or by any of its committees of its contempt power is based on the principle of self-preservation (i.e. preserving its authority and dignity). As the branch of the government vested with the legislative power,

independently of the judicial branch, it can assert its authority and punish contumacious acts against it. Such power is sui generis, as it attaches not to the discharge of legislative functions per se, but to the sovereign character of the legislature as one of the three independent and coordinate branches of government. (Id.) Period of Detention for Contempt (Balag v. Senate, G.R. No. 234608, July 3, 2018) HOUSE OF SENATE REPRESENTATIVES Can last only until the Can last only until the final adjournment of the termination of the last session of such legislative inquiry (even Congress during recess) under which the said power is invoked The legislative inquiry of the Senate terminates on two instances: 2. Upon the approval or disapproval of the Committee Report 3. Upon the expiration of such Congress Prior to Balag, the prevailing rule was that the Senate, as a continuing body (as opposed to the House of Representatives), can incarcerate a witness indefinitely based on Arnault v. Nazareno. However, the Court ruled that an indefinite and unspecified period of detention will amount to excessive restriction and will certainly violate any person's right to liberty. (Id.) If Congress decides to extend the period of imprisonment for the contempt committed by a witness beyond the duration of the legislative inquiry, then it may file a criminal case under existing statute (Art. 150 of the Revised Penal Code penalizes the refusal of a witness to answer any legal inquiry before Congress), amend existing law, or enact a new law to increase the definite period of imprisonment. Augmenting its power of contempt and extending the period of imprisonment shall be in the sole discretion of Congress. This constitutes as a statutory power of contempt, which is different from the inherent power of contempt. (Id.)

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OVERSIGHT FUNCTIONS (PHIL. CONST., art. VI, § 22.) 2. Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress' oversight function. Question Hour – Appearance of department heads before Congress to give account of their stewardship (Bernas, 1987 Philippine Constitution: A Commentary, 769, 2009). Under Section 22, department heads (members of the Executive Department) cannot be compelled to appear before Congress. Neither may department heads impose their appearance upon Congress. This is in line with the principle of separation of powers. Department Heads May Appear before Congress in the Following Instances: 1. Upon their own initiative, with the consent of the President (and that of the House concerned) 2. Upon the request of either House 3. Written questions shall be submitted to the President of the Senate or Speaker of the House at least 3 days before the scheduled appearance of the department heads. 4. Interpellations shall not be limited to written questions, but may cover related matters. 5. The inquiry will be conducted in executive session when: ○ Required by the security of state, or public interest, and ○ When the President so states in writing. There is no such thing as a ‘question hour’ in the Constitution (It is a parliamentary concept and practice). The distinction in legislative hearings is between investigative function and oversight function. (Senate v. Ermita, G.R. No. 169777, April 20, 2006). Any post-enactment congressional measure should be limited to scrutiny and investigation, in following the principle separation of powers. An accountability mechanism with which the proper expenditure of public funds may be checked is the power of congressional oversight, which may be performed either through: 1. Scrutiny based primarily on Congress‘ power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its

Houses on any matter pertaining to their departments and its power of confirmation; Investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation. (Belgica v. Ochoa, G.R. No. 208566, Nov. 19, 2013).

Question Hour vs. Legislative Investigation Sections 21 and 22, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function. (Neri v. Senate, G.R. No. 180643, March 25, 2008) Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory (Senate v. Ermita, G.R. No. 169777, April 20, 2006). QUESTION HOUR (SEC. 22) WHO MAY APPEAR WHO CONDUCTS SUBJECT MATTER OR PURPOSE

NATURE EXEMPTED PERSONS

Only department heads Entire body Matters related to the department only as an exercise of Congress’ oversight function Discretionary All heads of departments of the Executive Branch of the government shall secure the consent of the President

LEGISLATIVE INVESTIGATI ON (SEC. 21) Any person Entire body or its respective committees Any matter in aid of legislation

Compulsory (1) President (2) Justices of the Supreme Court (3) Members of the AFP, if prevented by the President as Commander-

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prior to in-Chief appearing (Gudani v. before either Senga, G.R. House of No. 170165, Congress Aug. 15, 2006) (EO 464, Sec.1) (1) Executive privilege, which must be invoked by the President himself or through the Executive Secretary by authority of the President (Senate v. Ermita, G.R. No. 169777, April 20, 2006) (2) Privileged information e.g. national defense, diplomatic, military secrets, etc. (3) Right against selfincrimination

Invocation of Executive Privilege Under Article VI, Section 22, the appearance of department heads in the question hour is discretionary on their part. However, under Section 21, Congress is not bound to respect their refusal to appear in inquiries in aid of legislation, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary. (Senate v. Ermita, G.R. No. 169777, April 20, 2006) Only the President may invoke this. If it is invoked by some other person, there must be proof that he or she has Presidential authority. A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. The court itself must determine whether the circ*mstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circ*mstances in which it is made, it should be respected (Senate v. Ermita, G.R. No. 169777, April 20, 2006). The President has constitutional authority to prevent any member of the Armed Forces from testifying before a legislative inquiry by virtue of her power as commander-inchief, and that as a consequence a military officer who defies such injunction is liable under military justice. The only way to circumvent this is by judicial order because the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which

the President has the duty to faithfully execute (Gudani v. Senga, G.R. No. 170165, Aug. 15, 2006). When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22 of Article VI, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is “in aid of legislation” under Section 21, Article VI, the appearance is mandatory (Senate v. Ermita, G.R. No. 169777, April 20, 2006).

2. NON-LEGISLATIVE a. Informing Function Informing Power: The President shall address Congress at the opening of its regular session. He may also appear before it at any time. (Art. VII, Sec. 23.) NOTE: The Informing Power properly belongs to the President through the State of the Nation Address. Role of Congress is to receive the same from the President whereby the Congress is informed about the priority policies and programs of the President that an be turned into legislation.

b. Power of Impeachment Exclusive Power To Initiate The House of Representatives shall have the exclusive power to initiate all cases of impeachment (PHIL. CONST., art. IX, § 3(1).) 1. The impeachment proceedings begin with a complaint filed with the House of Representatives either by a member of the House or by any citizen supported by a resolution of endorsem*nt by any member. The complaint is referred to a Committee which prepares a report (which can be favorable or unfavorable). In either case, the House by a vote of 1/3 of all its members decides whether complaint should be given due course. (PHIL. CONST., art. IX, § 3(2 & 3).) 2. Referral to the Committee and decision by the House is unnecessary if the complaint is filed by at least 1/3 of all the members of the house (PHIL. CONST., art. IX, § 3(4).)

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Exclusive Power to Try and Decide The Senate shall have the sole power to try and decide all cases of impeachment. No person shall be convicted without the concurrence of 2/3 of all the Members of the Senate (PHIL. CONST., art. IX, § 3(6).) The penalty imposable shall be limited to: ● removal from office and ● disqualification to hold any office under the Republic of the Philippine (PHIL. CONST., art. IX, § 3(7).) Officers Subject to Impeachment (PHIL. CONST., art. IX, § 2.) (P-VSCO) ● President ● Vice President ● Members of the Supreme Court ● Members of the Constitutional Commissions ● Ombudsman Grounds for Impeachment (PHIL. CONST., art. IX, § 2.) (BGC-T2O) ● Bribery ● Graft and Corruption ● Culpable Violation of the Constitution ● Treason ● Betrayal of Public Trust ● Other high crimes

————- end of topic ————-

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III. EXECUTIVE DEPARTMENT TOPIC OUTLINE UNDER THE SYLLABUS A. NATURE OF EXECUTIVE POWER 1. In Relation to the Implementation of Laws (Including Delegated Powers) 2. Express of Implied (Including the Faithful Execution of Laws and Residual Powers) B. CONCEPT OF PRESIDENTIAL IMMUNITY 1. Conduct Covered 2. Waiver and Exceptions C. CONCEPT OF EXECUTIVE PRIVILEGE 1. Types 2. Who May Invoke D. QUALIFICATIONS, ELECTION, TERM OF THE PRESIDENT AND VICEPRESIDENT, AND RULES ON SUCCESSION E. OTHER PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS F. POWERS OF THE PRESIDENT 1. Executive and Administrative Powers 2. Power of Appointment a) Process of Confirmation by the Commission b) By-Passed Appointments and their Effects c) Appointments by an Acting President d) Scope of Midnight Appointments e) Recess of Ad-Interim Appointments f) Power of Removal 3. Power of Control and Supervision a) Doctrine of Qualified Political Agency b) Executive Departments and Offices c) Local Government Units 4. Emergency Powers 5. Commander-in-Chief Powers a) Calling Out Powers b) Declaration of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus (Including Extension of Period) 6. Pardoning Powers a) Scope and Limitations

8. 9.

Forms of Executive Clemency Foreign Relations Powers a) In General b) To Contract or Guarantee Foreign Loans c) Entry into Treaties or International Agreements Powers Relative to Appropriation Measures Veto Powers

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A. NATURE OF EXECUTIVE POWER Executive Powers, In General The Constitution provides that "[t]he executive power shall be vested in the President of the Philippines.” However, it does not define what is meant by executive power although in the same article it touches on the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress. The President’s Executive powers are not limited to those set forth in the Constitution. The President has residual powers as the Chief Executive of the country, which powers include others not set forth in the Constitution (Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989).

1. IN RELATION TO THE IMPLEMENTATION OF LAWS

(INCLUDING DELEGATED POWERS) Tariff Powers Art. VI, § 28(2) authorizes Congress to delegate to the President the power to fix tariff rates, import and export quotas, tonnage, wharfa*ge dues, and other duties and impost. Emergency Powers Art. VI, § 23(2) authorizes Congress to give the President the power necessary and proper to carry out a declared national policy in times of war or other national emergency pursuant to law. Test of Valid Delegation 1. Completeness Test — The law must state the policy that must be carried out or implemented and leave no room for the delegate to legislate; nor allow discretion on their part to say what the law is. A statute may be complete when the subject, and the manner and the extent of its operation are stated in it such that when it reaches the delegate,there must be nothing left for the delegate to do but to enforce the law.

2. Sufficiency of Standard — There must be adequate guidelines or limitations in the law to map out the boundaries of the delegate authority and prevent the delegation from running riot. The limits are sufficiently determinate and determinable to which the delegate must conform in the performance of his actions. Examples: i. Public interest (People v. Rosenthal, G.R. Nos. L-46076 and L-46077, Jun. 12, 1939); ii. Fair and equitable employment practices (Eastern Shipping Lines v. POEA, supra) iii. Justice and equity; iv. Public convenience and welfare; v. Simplicity, economy, and efficiency. NOTE: Standards may be expressed or implied from the law taken as a whole (Edu v. Ericta, G.R. No. L-32096, Oct. 24, 1970). They can even be gathered in another statute of the same subject matter (Chongbian v. Orbos, G.R. No. 96754, June 6, 1995). A law allowing a judge to inflict punishment of imprisonment in its discretion without any designated limits is invalid (People v. Dacuycoy, G.R. No. L-45127, May 5, 1989). Section 8 of PD 910 regarding the Malampaya funds provides: “all fees, revenues and receipt…under the Petroleum Act of 1949; as well as the government share…shall form part of a special fund to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter provided by the President.” This is not a valid delegation of legislative power. The provision constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President‘s authority (Belgica v. Ochoa, G.R. No. 208566, Nov. 19, 2013). Congress can only delegate, usually to administrative agencies, rule-making power or law execution. This involves either of two tasks for the administrative agencies: 1. Subordinate Legislation: Filling in the details of an otherwise complete statute; or 2. Contingent Legislation: Ascertaining the fact necessary to put into effect, suspend, or apply a “contingent” law.

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Any post-enactment congressional measure should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: (SAHM) 4. Scrutiny based primarily on Congress’ power of appropriation and the budget hearings conducted in connection with it 5. Its power to ask heads of departments to Appear before and be Heard by either of its Houses on any matter pertaining to their departments and its power of confirmation and investigation 6. Monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class (Abakada v. Purisima, G.R. No. 166715, Aug. 14, 2008). Reorganization “involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.” The general rule has always been that the power to abolish a public office is lodged with the legislature. The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the President’s power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures (Malaria Employees v. Romulo, G.R. 160093, Jul 31, 2007).

2. EXPRESS OR IMPLIED

(INCLUDING THE FAITHFUL EXECUTION OF LAWS AND RESIDUAL POWERS) Faithful Execution Clause Under the Faithful Execution Clause, the President has the power to take "necessary and proper steps" to carry into execution the law (Schwartz, On Constitutional Law, p. 147 [1977]). These steps are the ones to be embodied in the guidelines (i.e. on the use of public funds authorized by Congress). (Philippine Constitution Association v. Enriquez, G.R. Nos. 113105, 113174, 113766 & 113888, August 19, 1994) That the President cannot, in the absence of any statutory justification, refuse to execute the laws when called for is a principle fully recognized by jurisprudence. In In re: Neagle, the US Supreme Court held that the faithful execution clause is "not

limited to the enforcement of acts of Congress according to their express terms." According to Father Bernas, Neagle "saw as law that had to be faithfully executed not just formal acts of the legislature but any duty or obligation inferable from the Constitution or from statutes." Under his broad powers to execute the laws, the President can undoubtedly create ad hoc bodies for purposes of investigating reported crimes. (Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, [December 7, 2010], 651 PHIL 374-773) This Court has interpreted the faithful execution clause as an obligation imposed on the President, and not a separate grant of power. 148 Section 17, Article VII of the Constitution, expresses this duty in no uncertain terms and includes it in the provision regarding the President's power of control over the executive department. xxx In light of this constitutional duty, it is the President's prerogative to do whatever is legal and necessary for Philippine defense interests. It is no coincidence that the constitutional provision on the faithful execution clause was followed by that on the President's commander-in-chief powers, which are specifically granted during extraordinary events of lawless violence, invasion, or rebellion. And this duty of defending the country is unceasing, even in times when there is no state of lawless violence, invasion, or rebellion. At such times, the President has full powers to ensure the faithful execution of the laws. (Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, [January 12, 2016], 777 PHIL 280-699) Until and unless a law is declared unconstitutional, the President has a duty to execute it regardless of his doubts as to its validity. Residual Powers The President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law. The textual justification for this under the Constitution is Article VII, Section 17 – to ensure that the laws are faithfully executed – called the Faithful Execution Clause. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do

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anything not forbidden by the Constitution or the laws that the needs of the nation demand. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed (Marcos v Manglapus, G. R. No. 88211, Sept. 15, 1989).

B. CONCEPT OF PRESIDENTIAL IMMUNITY 1. CONDUCT COVERED Immunity from suit is personal to the President and may be invoked by him alone. The President may waive it impliedly, as when he himself files suit (Soliven v. Makasiar, G.R. No. 82585, Nov. 14, 1988). The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution (Rubrico, et al. v. Gloria Macapagal-Arroyo, et al., G.R. No. 183871, Feb. 18, 2010). Unlawful acts of public officials are not acts of State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. Once out of office, even before the end of the six-year term, immunity for non-official acts is lost (Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001). A department secretary, even if an alter ego of the President, cannot invoke presidential immunity in a case filed against him because the questioned acts are not the acts of the President. (Gloria v CA, G.R. No. 119903, Aug. 15, 2000) Duration of Presidential Immunity After his tenure, the Chief Executive cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties. (Estrada v. Desierto, G.R. No. 146710, March 2, 2001)

For the presidential communications privilege to apply, the following must concur: (a) Communications relate to a “quintessential and nondelegable power” of the President. (e.g. the power to enter into an executive agreement with other countries without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence) (b) Communications are “received” by a close advisor of the President. Under the “operational proximity” test, Secretary Neri of NEDA can be considered a close advisor, being a member of President Arroyo’s cabinet. (c) There is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. Scope of Executive Privilege Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order; including: • Conversations and correspondence between the President and the public official covered by this executive order (Chavez v Public Estates Authority, G.R. No. 133250, July 9, 2002); • Military, diplomatic and other national security matters which in the interest of national security should not be divulged; • Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. PCGG, G.R. No. 130716, Dec. 9, 1998); • Discussion in close-door Cabinet meetings (Chavez v. PCGG, G.R. No. 130716, Dec. 9, 1998); and • Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, Jul. 9, 2002).

2. WAIVER AND EXCEPTIONS

C. CONCEPT OF EXECUTIVE PRIVILEGE Executive Privilege is the power of the President to withhold certain types of information from the court, the Congress, and the public. (Neri v. Senate, G.R. No. 180643, March 25 2008). Page 71 of 479 BACK TO TOC

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1. TYPES Difference between Presidential Communications Privilege and Deliberative Process Privilege PRESIDENTIAL COMMUNICATIONS PRIVILEGE Pertains to communications, documents or other materials that reflect presidential decisionmaking and deliberations Applies to decisionmaking of the President

DELIBERATIVE PROCESS PRIVILEGE Includes advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated Applies to decisionmaking of executive officials (and judiciary)

Rooted in the Based on common law constitutional principle privilege of separation of powers Requisites: Requisites: (a) It must involve a (a) Predecisional – it quintessential and precedes, in non-delegable temporal sequence, power of the the decision to President which it relates (b) Operational (b) Deliberative – Proximity reflects the give and (c) Important and take of the compelling need to consultative be confidential, not process such that merely based on disclosure would general interest discourage candid discussion within the agency (In Re: Production of Court Records and Documents, Feb. 14, 2012)

2. WHO MAY INVOKE Person Covered by the Privilege The person covered by the executive privilege is a person in possession of information which is, in the judgment of the head of office concerned, privileged

communications authored or solicited and received by those members of an immediate White House advisor’s staff who have broad and significant responsibility for investigation and formulating of the advice to be given the President on the particular matter to which the communications relate (Neri v. Senate Committee, G.R. No. 180643, March 25, 2008 citing In re: Sealed, No. 96-3124, 121 F.3d 729,326 U.S. App. D.C. 276, 1997). Presidential communications are presumptively privileged and such presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The oversight function of Congress may be facilitated by compulsory process ONLY to the extent that it is performed in pursuit of legislation” (Neri v. Senate, G.R. No. 180643, March 25, 2008). While the final text of the JPEPA may not be kept perpetually confidential - since there should be “ample opportunity for discussion before a treaty is approved” – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. Diplomatic negotiations privilege bears a close resemblance to the deliberative process and residential communications’ privilege. Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process (Akbayan v. Aquino, G.R. No. 170516, July 16, 2008). When To Apply Executive Privilege: (a) Must fall within one of the above. (b) Must be stated with sufficient particularity so the Congress or Court can determine the legitimacy of the claim of privilege. Exception to Executive Privilege: The President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (U.S. v. Nixon, 418 U.S. 683, 1974). Executive privilege cannot be used to conceal a crime or a possible wrongdoing. Thus, the specific need for evidence in a pending criminal trial outweighs the President’s generalized interest in confidentiality (Neri v. Ermita, G.R. No. 169777, April 20, 2006).

Operational Proximity Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. The privilege should apply only to

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D. QUALIFICATIONS, ELECTION, TERM OF THE PRESIDENT AND VICE-PRESIDENT, AND RULES ON SUCCESSION Qualifications of President and Vice-President (Secs 3-4): PRESIDENT VICEPRESIDENT 1. Natural-born citizen of the Philippines 2. Registered voter 3. Able to read and write 4. At least 40 years old on the day of election 5. Resident of the Philippines for at least 10 years immediately preceding the election 6. Term of 6 years 7. Unless otherwise provided by law, term of office commences at noon of June 30 next following the election Single term only; not Term limitation; 2 eligible for any successive terms reelection (but can run if no longer incumbent president, like President Estrada in May 2020) Any person who has succeeded as President, and served as much for more than 4 years shall NOT be qualified for election to the same office at any time Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service Term of Office The President and Vice President shall be elected by direct vote of the people for a term of 6 years (PHIL. CONST. art. VII, § 4). The president shall not be eligible for any reelection. No person who has succeeded as President and has served for more than 4 years shall be qualified for election to the same office at any time. (PHIL. CONST., art VII, § 4, ¶ 1). No Vice-President shall serve for more than 2 consecutive terms. (PHIL. CONST., art. VII, § 4, ¶ 2).

Election Regular: 2nd Monday of May, every 6 years Special (Requisites) ● Death, Permanent disability, removal from office or resignation of both President and Vice-President ● Vacancies occur more than 18 months before the next regular presidential election; and ● A law passed by Congress calling for a special election to elect a President and Vice President to be held not earlier than 45 days nor later than 60 days from the time of such call (PHIL. CONST., art VII, § 10) Congress as Canvassing Board The proclamation of presidential and vice presidential winners is a function of Congress and not of the COMELEC (Macalintal v COMELEC, G.R. No. 157013, June 10, 2003) SC as the Presidential Electoral Tribunal (PET) The SC, sitting en banc, shall be the sola judge of all contests relating to the election, returns and qualifications of the President or Vice President, and may promulgate its rules for the purpose. (Macalintal v. PET, G.R. No. 191618, Nov. 23, 2010) Oath of Office Before they enter on the execution of their office, the President, Vice President or the Acting President shall take the oath or affirmation (PHIL. CONST., art. VII, § 5). RULES OF SUCCESSION Manner Of Election (PHIL. CONST., art. VII, § 4) The President and Vice-President shall be elected by the direct vote of the people. Election returns for President and Vice-President, duly certified by the Board of Canvassers of each province or city, shall be transmitted to Congress, directed to the Senate President. Upon receipt of the certificates of canvass, the Senate President shall, not later than 30 days after the day of the election, open all the certificates in the presence of both houses of Congress, assembled in joint public session. The Congress, after determining the authenticity and due execution of the certificates, shall canvass the votes.

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The person having the highest number of votes shall be proclaimed elected. In case of a tie between 2 or more candidates, one shall be chosen by a majority of ALL the members of both Houses, voting separately. The Supreme Court en banc shall act as the sole judge over all contests relating to the election, returns, and qualifications of the President or VicePresident and may promulgate its rules for the purpose. Congress may delegate counting to a committee provided it approves it as a body (considered as a non-legislative function of Congress). Proclamation of President-Elect & VP-Elect is the function of Congress not the COMELEC’s. Limitations (a) Salaries and emoluments of the President and Vice-President shall be determined by law (b) Shall not be decreased during the tenure of the President and the Vice-President (c) Increases take effect only after the expiration of the term of the incumbent during which the increase was approved. (d) No other emolument from the government or any other source during their tenure may be received. Succession of President-Elect and VicePresident Elect at the Start of the Term (PHIL. CONST., art. VII, § 7) VACANCY SUCCESSOR President-elect fails to VP-elect will be Acting qualify or to be chosen President until a President is qualified/chosen President-elect dies or permanently disabled Both President and VP-Elect are not chosen, or do not qualify, or both die, or both become permanently disabled Death, permanent disability, or inability of Senate President and Speaker of the house as Acting President

VP becomes President Senate President, or in case of his inability, Speaker of the House shall act as President until a President or a VP shall have been chosen and qualified. Congress shall determine, by law, who will be the Acting President until a President or VP shall have qualified.

Succession of President and Vice-President During Mid-Term (PHIL. CONST., art. VII, § 8) VACANCY SUCCESSOR President VP becomes President dies/permanently for the unexpired term disabled/impeached or resigns Both President and VP die/ permanently disabled/ impeached or resign Death, permanent disability, or inability of Senate President and Speaker of the house as Acting President

Senate President, or in case of his inability, Speaker of the House shall act as president until the President or VP shall have been elected and qualified. Congress shall determine, by law, who will be the Acting President until a President or VP shall have been elected and qualified, subject to the same restrictions of powers and disqualifications as the Acting President

Vacancy in the Office of the Vice-President (PHIL. CONST., art. VII, § 9) Procedure To Fill Up Vacancy President will nominate new VP from among the members of either House of Congress. Nominee shall assume office upon confirmation by majority vote of ALL members of both Houses, voting separately. (In effect, nominee forfeits his seat in Congress.) Election of President and Vice-President after vacancy (PHIL. CONST., art. VII, § 10) Procedure Congress shall convene 3 days after the vacancy in the offices of both the President and the VP, without need of a call. The convening of Congress cannot be suspended. Within 7 days after convening, Congress shall enact a law calling for a special election to elect a President and a VP. The special election cannot be postponed. The requirement of three readings on separate days under Sec. 26(2), Art VI shall not apply to a bill calling for a special election. The law shall be deemed enacted upon its approval on third reading.

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The special election shall be held within 45-60 days from the time of the enactment of the law. Limitation: No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election. Temporary Disability of the President to discharge his duties (PHIL. CONST. art. VII, Sec. 11) may be raised in either of two ways: (a) By the President himself, when he sends a written declaration to the Senate President and the Speaker of the House. In this case, the Vice-President will be Acting President until the President transmits a written declaration to the contrary. (b) When a majority of all Cabinet members transmit to the Senate President and the Speaker of the House their written declaration. The VP will immediately assume the powers and duties of the office as Acting President. Scenarios After Disability is Relayed in the Congress: If the President transmits a written declaration that he is not disabled, he reassumes his position. If within 5 days after the President re-assumes his position, the majority of the Cabinet transmits their written declaration to the contrary, Congress shall decide the issue. In this event, Congress shall convene within 48 hours if it is not in session, without heed of a call

E. OTHER PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS 1. Disqualifications SUBJECT SOURCE OF DISQUALIFICATION President PROHIBITED FROM: Holding any office or Vice employment during their tenure President Exceptions: Cabinet ● Otherwise provided in Members the Constitution (e.g., Vice President Deputies or appointed as a member Assistants of of the Cabinet, Cabinet Secretary of Justice sits members as an ex-officio member on Judicial and Bar Council) ● The positions are exofficio and they do not receive any salary or other emoluments therefor (e.g. Sec. of Finance is head of Monetary Board)

Within 10 days after Congress is required to assemble, or 12 days if Congress is not in session, a 2/3 majority of both Houses, voting separately, is needed to find the President temporarily disabled, in which case, the VP will be Acting President.

Practicing, directly or indirectly, any other profession during their tenure

●

Participating business

any

Being financially interested in any contract with, or in any franchise, or special privilege granted by the government or any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries (PHIL. CONST., art VII, § 13) Cannot be appointed during President’s tenure as: (a) Members of the Constitutional Commissions (b) Office of the Ombudsman (c) Department Secretaries (d) Department Undersecretaries ●

Presidential Illness (Sec. 12) General Rules: If the President is seriously ill, the public must be informed thereof. During such illness, the following shall not be denied access to the President: (a) National Security Adviser (b) Secretary of Foreign Affairs (c) Chief of Staff of the AFP

●

Spouses and 4th degree relatives of the President (consanguinit y or affinity)

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(e) Chairman or heads of bureaus or offices including GOCCs and their subsidiaries If the spouse, etc., was already in any of the above offices before his/her spouse became President, he/she may continue in office. What is prohibited is appointment and reappointment, not continuation in office. Spouses etc., can be appointed to the judiciary and as ambassadors and consuls The Chief Presidential Legal Counsel (CPLC) has the duty of giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving heads of executive departments and agencies, as well as other Presidential appointees. The PCGG is charged with the responsibility, under the President, of recovering ill-gotten wealth. The offices of the PCGG and CPLC are incompatible. Without question, the PCGG is an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC (Public Interest Group v. Elma, G.R. No. 138965, June 30, 2006). Exception to the Prohibition on the President and His/Her Official Family from Holding Any Other Office or Employment If 4th degree relatives are already in office when a President assumes office, the relatives are not thereby ousted from their positions. What is prohibited is appointment or reappointment and not uninterrupted continuance in office Inhibitions ● No increase in salaries until after the expiration of the term of the incumbent during which such increase was approved (PHIL. CONST., art. VII, §6). ● Shall not, during tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries (PHIL. CONST., art. VII, § 13).

● ●

Shall not receive any other emoluments from the government or any other source (PHIL. CONST., art. II, § 6) Shall avoid conflict of interest in conduct of office (PHIL. CONST., art. VII, § 13).

F. POWERS OF THE PRESIDENT 1. EXECUTIVE AND ADMINISTRATIVE POWERS Executive Powers, In General The Constitution provides that "[t]he executive power shall be vested in the President of the Philippines.” However, it does not define what is meant by executive power although in the same article it touches on the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress. The President’s Executive powers are not limited to those set forth in the Constitution. The President has residual powers as the Chief Executive of the country, which powers include others not set forth in the Constitution (Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989). Power of Administrative Reorganization The President has the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials, if effected in good faith and for the purpose of economy or make the bureaucracy more efficient. (MEWAP v Executive Secretary, G.R. No. 160093, July 31, 2007).

2. POWER OF APPOINTMENT In General Executive in nature; while Congress (and the Constitution in certain cases) may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the President’s prerogative.

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In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be (Pimentel v. Ermita, G.R. No. 164978, Oct. 13, 2005).

a. Process of Confirmation by the Commission May the President appoint an individual as acting Solicitor General and acting Secretary of Justice? The President may not appoint an individual as acting Solicitor General and acting Secretary of Justice in a concurrent capacity. The designation of Alberto Agra as acting Secretary of Justice concurrently with his position as Solicitor General is in violation of the constitutional prohibition under Article VII, Section 13. It is of no moment that the designation was in a temporary capacity. The Constitution makes no reference to the nature of the designation (Funa v. Agra, G.R. No. 191644, Feb. 19, 2013). Kinds of Presidential Appointments under Art VII, Sec.15 of the Constitution (a) Appointments made by an acting president (b) Midnight appointment — appointment made by a President after the election of his successor and up to the end of his term. This is prohibited by the Constitution. (c) Appointments for Partisan Political Consideration. Those made 2 months before the next Presidential election. This is prohibited by the Constitution. (d) Regular presidential appointments, with or without confirmation by the Commission on Appointments, and ‘recess’ or ‘ad-interim’ appointments. Appointment in an Acting Capacity The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. The law expressly allows the President to make such acting appointment. EO 292 states

that “[t]he President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch.” But EO 292 also provides that acting appointments cannot exceed one year. The law has incorporated this safeguard to prevent abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on Appointments. (Pimentel v. Ermita, G.R. No. 164978, Oct. 13, 2005) Requisites for Valid Appointment 1. Authority to appoint and evidence of its exercise; 2. Transmittal of the appointment and proof of it 3. Vacant position at the time of appointment; 4. Receipt of the appointment and 5. acceptance by the appointee who possesses all the qualifications and none of the disqualifications. (Velicaria-Garafil v. OP, G.R. No. 203372, June 16, 2015). Limitations on the Exercise/Power The Constitutional Limitations on the President’s appointing power The President may not appoint his/her spouse and relatives by consanguinity or affinity within the 4th civil degree as members of the: (a) Constitutional Commissions (b) Ombudsman (c) Department Secretaries (d) Undersecretaries (e) Chairmen and heads of Bureaus and Offices (f) GOCCs (PHIL. CONST., art. VII, § 13) Appointments extended by an acting President shall remain effective unless revoked by the elected President within 90 days from assumption of office (PHIL. CONST., art. VII, § 14) Two months immediately before the next Presidential elections and up to the end of his/her term, a President or Acting President shall not make appointments except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety (PHIL. CONST., art. VII, § 15). The appointment of the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution require the consent of the Commission on Appointments (PHIL. CONST., art. VII, § 16). Page 77 of 479

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Regular Appointments Requiring Consent of Commission on Appointment (CA) The following may be appointed by the president, subject to approval by the Commission on Appointments (CA): (a) Heads of executive departments (b) Ambassadors, consuls, and other public ministers (c) Officers of AFP from the rank of colonel or naval captain (d) Other officers whose appointment is vested in him by the Constitution, such as: a. Chairmen and members of the COMELEC, COA, and CSC. b. Regular members of the JBC. c. The Ombudsman and his deputies. d. Sectoral representatives in Congress, as provided in Transitory Provisions (Sec. 16).

PROCEDURE WHEN CA CONFIRMATION NEEDED: (a) Nomination by President (b) Confirmation by CA (c) Appointment by President (d) Acceptance by appointee. a. At any time before all four steps have been complied with, the President can withdraw the nomination or appointment.

Appointments With Prior Recommendation or Nomination By The JBC ● Members of the SC and judges of the lower courts; these appointments do not need CA confirmation (PHIL. CONST., art. VIII, § 9). ● Ombudsman and his Deputies (PHIL. CONST., art. VIII, § 9).

These shall remain effective unless revoked by the elected President within 90 days from his assumption or re-assumption of office.

c. By-passed Appointments and their Effects Regular Appointments Without Need Of CA Confirmation All other officers whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint do not require CA confirmation. This includes the Chairman and members of the Commission on Human Rights (CHR), whose appointments are provided for by law, and NOT by the Constitution. (PHIL. CONST., Art. VII, Sec. 16) Congress may, by law, vest in the President alone or in the courts, or in the heads of departments, agencies boards or commissions the appointment of other officers lower in rank than those mentioned above (PHIL. CONST., Art. VII, Sec 16) However, Congress cannot, by law, require CA confirmation of the appointment of other officers for offices created subsequent to the 1987 Constitution e.g. NLRC Commissioners, Bangko Sentral Governor (Calderon v. Carale, G.R. No. 91636, April 23, 1992).

Procedure When No CA Confirmation Needed: (a) Appointment (b) Acceptance Once appointee accepts, President can no longer withdraw the appointment

d. Appointments By An Acting President

The power of the succeeding President to revoke appointments made by the Acting President refers only to appointments in the Executive Department (De Castro v. JBC, G.R. No. 191002, April 20, 2010). Difference between Disapproval and By-Passed Appointments APPOINTMENTS BY-PASSED DISAPPROVED APPOINTMENTS When the Commission When an ad-interim disapproves an ad position is by-passed interim appointment, because of law of time the appointee can no or failure of the longer be extended a Commission to new appointment, organize, there is no inasmuch as the final decision, the disapproval is a final President is free to decision in the exercise renew the ad-interim of the Commission’s appointment. checking power on the appointment authority of the President

e. Scope of Appointment

Midnight

MIDNIGHT APPOINTMENT General Rule: Two (2) months immediately before the next Presidential elections and up to the end of his term, the President or Acting President shall not make appointments. This is to prevent the practice

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of making “midnight appointments.” (PHIL. CONST., art. VII, § 15). Exceptions 1.

Temporary appointments to executive positions if continued vacancies will prejudice public service or endanger public safety.

Prohibition does not extend to appointments in the Supreme Court. Had the framers intended to extend the prohibition to the appointment of Members of the Supreme Court, they could have explicitly done so. The prohibition is confined to appointments in the Executive Department. Existence of the JBC also prevents possible abuses in appointment (De Castro v JBC, G.R. No. 191002, April 20, 2010); overturned In re: Appointment of Valenzuela, A.M. 98-5-01-SC, Nov. 9, 1998).

There is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. Prohibition only applies to appointments by the President (De la Rama v. CA, G.R. No. 131136, Feb. 28, 2001).

If the President is not satisfied with the list submitted by the JBC, he may ask for another list. But once the appointment is issued by the President and accepted by the nominee, it needs no further confirmation.

President may appoint SC Justice within 60 days prior to election. Article VII deals entirely with the executive department while Article VIII deals with the judiciary. Had the framers intended to extend the 60-day prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court. The usage in Section 4 (1), Article VIII of the word shall – an imperative, operating to impose a duty that may be enforced – should not be disregarded. The framers did not need to extend the prohibition against midnight appointments to appointments in the Judiciary, because the establishment of the JBC and subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate

prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. JBC intervention eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments (De Castro v. JBC, G.R. No. 191002, April 20 2010). Prohibition against Midnight Appointments applicable to Presidential Appointments only (LEONEN) The prohibition on midnight appointments under Article VII, Sec 15 only applies to presidential appointments. It does not apply to appointments made by local chief executives. Nevertheless, the Civil Service Commission has the power to promulgate rules and regulations to professionalize the civil service. It may issue rules and regulations prohibiting local chief executives from making appointments during the last days of their tenure. Appointments of local chief executives must conform to these civil service rules and regulations in order to be valid. (Provincial Government of Aurora v Marco, G.R. No. 202331, April 22, 2015)

Recess of Appointments

Ad-Interim

What is an ad interim appointment? An ad interim appointment is a permanent appointment unless otherwise indicated. It is an appointment made by the President while Congress is NOT in session or during recess. Ad-Interim Appointments (PHIL. CONST., art VII, § 16) ● When Congress is in recess, the President may still appoint officers to positions subject to CA confirmation. These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress. ● Applies only to positions requiring confirmation of CA Appointments to fill an office in an ‘acting’ capacity are NOT adinterim in nature and need no CA approval. ● The assumption of office on the basis of the ad interim appointments issued by the President does not amount to a temporary appointment which is prohibited by § 1 (2), Art. IX-C. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be Page 79 of 479

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withdrawn by the President once the appointee has qualified into office. (Matibag v. Benipayo G.R. No. 149036, April 2, 2002). How Ad-Interim Appointments Terminated (a) Disapproval of the appointment by the CA; (b) Adjournment by the Congress without the CA acting on the appointment (NACHURA)

g. Power of Removal General Rule: The express power of appointment of the President has the corollary implied power of removal. Hence, the President may remove appointees. Exception: Appointments requiring certain methods for removal (e.g., Impeachment, appointment of judges of inferior courts (PHIL. CONST., art. VIII, § 11; Gonzales III vs. Office of the President of the Philippines, G.R. No. 196231, Sept. 4, 2012). The succeeding President may not revoke appointments to the Judiciary made by an Acting President. Sec. 14, Art. VII refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary because temporary or acting appointments can only undermine the judiciary due to their being revocable at will…Prior to their mandatory retirement or resignation, judges of the first or second level courts and the Justices of the third level courts may only be removed for cause, but the members of the Supreme Court may be removed only by impeachment (De Castro v. JBC, G.R. No. 191002, Apr. 20, 2010). Disciplinary Powers The power of the President to discipline officers flows from the power to appoint the officer, and NOT from the power of control. While the President may remove from office those who are not entitled to security of tenure, or those officers with no set terms, such as Department Heads, the officers, and employees entitled to security of tenure cannot be summarily removed from office.

3. POWER OF CONTROL AND SUPERVISION Power of Control The power of an officer to alter, modify, or set aside what a subordinate officer has done in the

performance of his duties, and to substitute the judgment of the officer for that of his subordinate. The President’s power of control is a self-executing provision. The incumbent President is free to amend, rescind and modify any political agreements entered into by the previous Presidents (Ocampo v. Enriquez, G.R. No. 225973, Nov. 8, 2016). The appeal from the decision of a Department Secretary to the President can be restricted due to the President’s power of control. It may be limited by executive order of the President, a law providing for judicial review, and a rule of procedure promulgated by the Supreme Court. (Angeles v. Gaite, G.R. No. 165276, Nov. 25, 2009). Power of Supervision The power of a superior officer to ensure that the laws are faithfully executed by subordinates. The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. The President’s power over GOCCs comes not from the Constitution but from statute. Hence, it may similarly be taken away by statute. For Administrative Proceedings, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies. The execution of laws is an OBLIGATION of the President. He cannot suspend the operation of laws.

a. Doctrine of Qualified Political Agency Acts of department heads, etc., performed and promulgated in the regular course of business, are presumptively acts of the President. Exceptions: If the acts are disapproved or reprobated by the President. If the President is required to act in person by law or by the Constitution (e.g. the power to grant pardons). Application to Cabinet Members and Executive Secretary The doctrine of qualified political agency acknowledges the multifarious executive responsibilities that demand a president's attention, such that the delegation of control power to his or her Cabinet becomes a necessity.

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Unless the Constitution or law provides otherwise, Cabinet members have the president's imprimatur to exercise control over the offices and departments under their respective jurisdictions, which authority nonetheless remains subject to the president's disapproval or reversal. In a long line of decisions, the Court upheld the notion that "the power of the president to reorganize the National Government may validly be delegated to his [or her] cabinet members exercising control over a particular executive department”. But the Court retains the distinction that the doctrine remains limited to the President's executive secretary and other Cabinet secretaries. It does not extend to deputy executive secretaries or assistant deputy secretaries. Clearly, the president cannot be expected to personally exercise his or her control powers all at the same time. This entails the delegation of power to his or her Cabinet members (Philippine Institute for Development Studies v. Commission on Audit, GR. No. 212022, Aug. 20, 2019).

b. Executive Offices

Departments

and

The President may, by executive or administrative order, direct the reorganization of government entities under the Executive Department. Section 17, Article VII of the 1987 Constitution, clearly states: “The President shall have control of all executive departments, bureaus and offices.” The Administrative Code also grants the President the power to reorganize the Office of the President in recognition of the recurring need of every President to reorganize his or her office “to achieve simplicity, economy and efficiency” (Tondo Medical v. Court of Appeals, G.R. No. 167324, July 17, 2007). The President may transfer any agency under the Office of the President to any other department or agency, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency (Anak Mindanao v. Executive Secretary, G.R. No. 166052, Aug. 29, 2007). The creation of the Truth Commission does not fall within the President’s power to reorganize. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof. One of the recognized powers of the President is the power to create ad hoc committees. This flows from the need to ascertain facts and determine if laws have been faithfully executed or guide the President in performing his duties relative to the execution and enforcement of laws. The Truth Commission will not

supplant the Ombudsman or the Department of Justice or erode their respective powers. The investigative function of the Commission will complement those of the two offices (Biraogo v. The Philippine Truth Commission of 2010 / Rep. Edcel C. Lagman, et. al. v. Exec. Sec. Paquito N. Ochoa, Jr., et al., G.R. No. 192935 & G.R. No. 193036, Dec. 7, 2010).

c. Local Government Units The power of the president over local government units is only of general supervision. He can interfere with the actions of their executive heads only if these are contrary to law. The President exercises direct supervision over autonomous regions, provinces, and independent cities. To facilitate the exercise of power of general supervision of local government, the President may merge administrative regions and transfer the regional center to Koronadal City from Cotabato City (Republic v. Bayao, G.R. No. 179492, June 5, 2013).

4. EMERGENCY POWERS Congress is the repository of emergency powers. But in times of war or other national emergency, it may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (PHIL. CONST., art. VI, § 23(2); IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000) Conditions for the Exercise of the President of Emergency Powers (David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006) 1. There must be a war or national emergency; 2. There must be a law authorizing the President to exercise emergency powers; 3. Exercise must be for a limited period; 4. Exercise must be necessary and proper to carry out a declared national policy; and 5. Must be subject to restrictions that Congress may provide. The President could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business Page 81 of 479

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affected with public interest, is a different matter. This requires a delegation from Congress. (Id.)

the manner by which the President decides which power to choose.

Article XII, Section 17 of the Constitution, which states that, “[i]n times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” is an aspect of the emergency powers clause (i.e. PHIL. CONST., art. VI, § 23(2)). Whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. (Id.)

The power to choose, initially, which among these extraordinary powers to wield in a given set of conditions is a judgment call on the part of the President.

5. COMMANDER-IN-CHIEF POWERS Extraordinary/Commander-in-Chief Powers Differentiated SUSPENDING THE PRIVILEGE OF THE CALLING OUT WRIT OF HABEAS POWERS CORPUS/DECLARING MARTIAL LAW GROUNDS May be resorted to May be exercised only whenever it becomes when there is actual necessary to prevent invasion or rebellion, or suppress lawless and public safety violence, invasion, or requires it rebellion ACTION BY THE LEGISLATIVE OR JUDICIAL BRANCH The Court may nullify Congress may revoke the exercise of such such proclamation or power only when the suspension and the President acts in a Court may review the manner constituting sufficiency of the factual grave abuse of basis thereof discretion (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017; IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000) Graduation of the Extraordinary Powers The 1987 Constitution gives the President a sequence of graduated power[s]. From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. It must be stressed, however, that the graduation refers only to hierarchy based on scope and effect. It does not in any manner refer to a sequence, arrangement, or order which the Commander-in-Chief must follow. This so-called "graduation of powers" does not dictate or restrict

It is thus beyond doubt that the power of judicial review does not extend to calibrating the President's decision pertaining to which extraordinary power to avail given a set of facts or conditions. To do so would be tantamount to an incursion into the exclusive domain of the Executive and an infringement on the prerogative that solely, at least initially, lies with the President. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017)

a. Calling Out Powers As Commander-in-Chief of the Armed Forces, whenever necessary, the President may call out the Armed Forces to PREVENT or SUPPRESS: (a) Lawless violence (b) Invasion (c) Rebellion Among the three extraordinary powers, the calling out power is the most benign and involves ordinary police action. The power to call is fully discretionary to the President; the only limitations being that he acts within permissible constitutional boundaries or in a manner not constituting grave abuse of discretion. In fact, the actual use to which the President puts the armed forces is not subject to judicial review. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) The President's calling out power is in a different category from the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law. In other words, the President may exercise the power to call out the Armed Forces independently of the power to suspend the privilege of the writ of habeas corpus and to declare martial law, although, of course, it may also be a prelude to a possible future exercise of the latter powers. (Id.) The factual necessity of calling out the armed forces is something that is for the President to decide. (IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000) Judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness.

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PP 1017 is constitutional insofar as it constitutes a call by PGMA on the AFP to suppress lawless violence, which pertains to a spectrum of conduct that is manifestly subject to state regulation, and not free speech. PP 1017 is unconstitutional insofar as it grants PGMA the authority to promulgate “decrees.” Legislative power is within the province of the Legislature. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence (David v. Gloria Macapagal-Arroyo, G.R. No. 171396, May 3, 2006). Gen. Order No. 5 is constitutional since it provides a standard by which the AFP and the PNP should implement PP 1017, that is, suppressing lawless violence. However, considering that “acts of terrorism” have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared unconstitutional. (David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006) Declaration of a State of Emergency The declaration of a state of emergency is merely a description of a situation that authorizes (the President) to call out the Armed Forces to help the police maintain law and order. It gives no new power to her, or to the military, or to the police. Certainly, it does not authorize warrantless arrests or control of media (David v. Ermita, G.R. No. 171409, May 3, 2006). Emergency Powers v. Calling Out Powers The presidential proclamation of a state of emergency is NOT sufficient to allow the President to take over any public utility. Since it is an aspect of emergency powers in accordance with § 23 (2), Art. VI of the Constitution, there must be a law delegating such power to the President (David v. Macagapal Arroyo, G.R. No. 171396, May 3, 2006).

b. Declaration of Martial Law and Suspension of the Privilege of the Writ of Habeas Corpus; Extension Besides his calling out powers, the President may also: (a) Suspend the privilege of the writ of habeas corpus (b) Proclaim a state of martial law A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally a function of the Legislature. In particular, the President exercises police power, with the military’s assistance, to ensure public safety and in place of government agencies which for the

time being are unable to cope with the condition in a locality, which remains under the control of the State. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) Grounds For The Suspension Of The Privilege Of The Writ Of Habeas Corpus And Declaration Of Martial Law 1. Actual rebellion or invasion (not imminent) 2. Public safety requires it Checks and Balances to Limit the Exercise of the Martial Law and Suspension Powers/Safeguards against Abuse 1.

The President may declare martial law or suspend of the privilege of the writ of the privilege of habeas corpus only when there is an invasion or rebellion and public safety requires such declaration or suspension. 2. The President's proclamation or suspension shall be for a period not exceeding 60 days. 3. Within 48 hours from the proclamation or suspension, the President must submit a Report in person or in writing to Congress. 4. The Congress, voting jointly and by a vote of at least a majority of all its Members, can revoke the proclamation or suspension. 5. The President cannot set aside the Congress' revocation of his proclamation or suspension. 6. The President cannot, by himself, extend his proclamation or suspension. He should ask the Congress' approval. 7. Upon such initiative or request from the President, the Congress, voting jointly and by a vote of at least a majority of all its Members, can extend the proclamation or suspension for such period as it may determine. 8. The extension of the proclamation or suspension shall only be approved when the invasion or rebellion persists and public safety requires it. 9. The Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension, or the extension thereof, in an appropriate proceeding filed by any citizen. 10. The Supreme Court must promulgate its decision within 30 days from the filing of the appropriate proceeding 11. Martial law does not suspend the operation of the Constitution. Accordingly, the Bill of Rights remains effective under a state of martial law. Its implementers must adhere to the principle that civilian authority is Page 83 of 479

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supreme over the military and the armed forces is the protector of the people. They must also abide by the State's policy to value the dignity of every human person and guarantee full respect for human rights. 12. Martial law does not supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function. 13. The suspension of the privilege of the writ applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. 14. Finally, during the suspension of the privilege of the writ, any person thus arrested or detained should be judicially charged within three days, otherwise he should be released. (Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018) Territorial Coverage The Constitution grants to the President the discretion to determine the territorial coverage of martial law and the suspension of the privilege of the writ of habeas corpus. He may put the entire Philippines or only a part thereof under martial law. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) Limiting the proclamation and/or suspension to the place where there is actual rebellion would not only defeat the purpose of declaring martial law, it will make the exercise thereof ineffective and useless. (e.g. martial law over Mindanao as a whole and not merely Marawi where actual rebellion transpired) ● It is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the "range" of actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions. ● Moreover, the President's duty to maintain peace and public safety is not limited only to the place where there is actual rebellion; it extends to other areas where the present hostilities are in danger of spilling over. (Id.) Congressional Check on the Exercise of Martial Law and Suspension Powers 1. The power to review the President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus,

and to revoke such proclamation or suspension. The power to approve any extension of the proclamation or suspension, upon the President's initiative, for such period as it may determine, if the invasion or rebellion persists and public safety requires it. (Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018)

Duty to Report to Congress Section 18, Article VII, requires the President to report his actions to Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the Congress is required to convene without need of a call within 24 hours following the Presidents proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress. Whatever form that action takes, therefore, should give the Court sufficient time to fulfill its own mandate to review the factual basis of the proclamation or suspension within 30 days of its issuance. (Fortun v. Arroyo, G.R. No. 190293, March 20, 2012) As to what facts must be stated in the proclamation and the written Report is up to the President. As Commander-in-Chief, he has sole discretion to determine what to include and what not to include in the proclamation and the written Report taking into account the urgency of the situation as well as national security. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) Supreme Court Review (a) In an appropriate proceeding filed by any citizen (b) The SC may review the sufficiency of the factual basis of the proclamation or suspension, or the extension thereof (c) Its decision must be promulgated within 30 days from filing Parameters of the Court for Determining the Sufficiency of the Factual Basis for the Declaration of Martial Law and/or the Suspension of the Privilege of the Writ of Habeas Corpus (Sufficiency of the Factual Basis Test) 1. Actual rebellion or invasion 2. Public safety requires it 3. There is probable cause for the President to believe that there is actual rebellion or invasion. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) The scope of the Supreme Court’s power to review the declaration of Martial Law or suspension of the

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writ of habeas corpus is limited to a determination of the sufficiency (not accuracy) of the factual basis of such declaration or suspension. (Id.)

(Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018; Lagman v. Medialdea, G.R. No. 243522, Feb. 19, 2019)

The nature of the Supreme Court’s jurisdiction to determine the sufficiency of the factual basis for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus by the President is sui generis and granted by Sec. 18, Art. VII of the Constitution. It does not stem from Sec. 1 or 5 of Art. VIII. (Id.)

Judicial Power to Review vs. Congressional Power to Revoke Martial Law and Suspension of the Writ of Habeas Corpus JUDICIAL POWER CONGRESSIONAL TO REVIEW POWER TO REVOKE Court can only refer Congress may take into to information consideration: available to the (a) Data available President prior to or to the President at the time of the prior to or at the declaration time of the declaration and Court is not allowed (b) Events to undertake an supervening the independent declaration investigation beyond the pleadings Does not look into the Can probe further and absolute correctness deeper, can delve into of the factual basis accuracy of facts presented before it

Extension of Martial Law When approved by the Congress, the extension of the proclamation or suspension, as described during the deliberations on the 1987 Constitution, becomes a "joint executive and legislative act" or a "collective judgment" between the President and the Congress. (Lagman v. Medialdea, G.R. No. 243522, Feb. 19, 2019) The Court need not make an independent determination of the factual basis for the proclamation or extension of martial law and the suspension of the privilege of the writ of habeas corpus. The Court is not a fact-finding body required to make a determination of the correctness of the factual basis for the declaration or extension of martial law and suspension of the writ of habeas corpus. It would be impossible for the Court to go on the ground to conduct an independent investigation or factual inquiry, since it is not equipped with resources comparable to that of the Commander-inChief to ably and properly assess the ground conditions. (Id.) In determining the sufficiency of the factual basis for the extension of martial law, the Court needs only to assess and evaluate the written reports of the government agencies tasked in enforcing and implementing martial law in Mindanao. (Id.) The test of sufficiency is not accuracy nor preciseness but reasonableness of the factual basis adopted by the Executive in ascertaining the existence of rebellion and the necessity to quell it. (Id.) Manner of Approval by Congress of Extension is a Political Question The Court cannot review the rules promulgated by Congress (in extending martial law or the suspension of the writ of habeas corpus) in the absence of any constitutional violation. Legislative rules, unlike statutory laws, do not have the imprints of permanence and obligatoriness during their effectivity. In fact, they may be revoked, modified or waived at the pleasure of the body adopting them.

Passive Initiated by filing of a petition “in an appropriate proceeding” by a citizen

Automatic May be activated by Congress itself at any time after the proclamation or suspension was made

(Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) The Court can simultaneously exercise its power of review with, and independently from, the power to revoke by Congress. Corollary, any perceived inaction or default on the part of Congress does not deprive or deny the Court of its power to review. (Id.) Ways to Lift the Proclamation of Martial Law and/or Suspension of the Privilege: 1. Lifting by the President himself; 2. Revocation by Congress; 3. Nullification by the Supreme Court; and 4. By operation of law after 60 days (PHIL. CONST. art. VII, § 18).

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6. PARDONING POWERS a. Scope and Limitations The matter of executive clemency is non-delegable power and must be exercised by the President personally (Villena v. Secretary of the Interior, G.R. No. L-46570, April 21, 1939). The power exists as an instrument for correcting the infirmities in administration of justice and for mitigating whenever a strict application of the provisions of the law will result in undue harshness. (Bernas, 1987 Philippine Constitution: A Commentary, 924, 2009).

b. Forms of Executive Clemency PARDON – An act of grace, proceeding from the power entrusted of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed (United States v. Wilson, 503 U.S. 329, 1992). It is either conditional or plenary. AMNESTY - An act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself. The President alone cannot grant amnesty for it needs the concurrence by a majority of all the members of Congress. When a person applies for amnesty, he must admit his guilt of the offense that is subject to such amnesty. If his application is denied, he can be convicted based on this admission of guilt. REPRIEVE – postpones the execution of an offense to a day certain (People v. Vera, G.R. No. L-45685, Dec. 22, 1937). REMISSION OF FINES AND FORFEITURES – prevents the collection of fines or the confiscation of forfeited property but it cannot have the effect of returning the property which has been vested in 3rd parties or money already in the public treasury (Bernas, 1987 Philippine Constitution: A Commentary, 933, 2009). COMMUTATION – a remission of a part of the punishment; it is a substitution of a lesser penalty for the one originally imposed (People v. Vera, G.R. No. L- 45685, Dec. 22, 1937). Amnesty v. Pardon AMNESTY Political Offenses To a class of persons Need not be accepted

PARDON Ordinary Offenses To individuals Must be accepted

Requires concurrence of majority of all members of Congress A public act; subject to judicial notice Extinguishes offense

the

May be granted before or after conviction

No need for Congressional Concurrence Private act of President; it must be proved Only penalties are extinguished; May or may not restore political rights; Absolute pardon restores; Conditional, does not. Civil indemnity is not extinguished Only granted after conviction by final judgment

EXECUTIVE CLEMENCY IN ADMINISTRATIVE CASES: The power to grant clemency includes cases involving administrative penalties. Where a conditional pardon is granted, the determination of whether it has been violated rests with the President. The President can extend it to administrative cases but only in the Executive Branch, not in the Judicial or Legislative Branches of government (Llamas v. Orbos, G.R. No. 99031, Oct. 15, 1991). TAX AMNESTY: General pardon to impose penalties on persons guilty of evasion or violation of revenue or tax law (Republic v. IAC, G.R. No. 69344, Apr. 26, 1991). LIMITATIONS CANNOT BE GRANTED: (a) Before conviction, in cases of impeachment The President can pardon criminal offenses after an impeachment proceeding such as what happened in 2007 when President Arroyo pardoned former President Estrada after having been convicted by the Sandiganbayan of plunder. The exercise of the pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constitution (RisosVidal v. COMELEC, G.R. No. 206666, Jan. 21, 2015). (b) For violations of election laws, rules, and regulations without the favorable

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recommendation of the COMELEC in cases of civil or legislative contempt (c) Granted only after conviction by final judgment. (People. v. Salle, G.R. No. 103567, Dec. 4, 1995) AS TO EFFECT: (a) Does not absolve civil liabilities for an offense (b) Does not restore public offices already forfeited, although eligibility for the same may be restored (Monsanto v. Factoran, G.R. No. 78239, Feb. 9, 1989).

7. FOREIGN RELATIONS POWERS a. In general Power to enter into foreign relations includes: (a) The power to appoint ambassadors, other public ministers, and consuls (b) The power to receive ambassadors and other public ministers accredited to the Philippines (c) The power to contract and guarantee foreign loans on behalf of the Republic (d) The power to deport aliens – this power is vested in the President by virtue of his office, subject only to restrictions as may be provided by legislation as regards grounds for deportation. In the absence of any legislative restriction to authority, the President may exercise this power (e) The power to negotiate treaties and other international agreements. However, such treaty or international agreement shall be transmitted to the Senate, with the following options: a. Approve it by 2/3 majority vote b. Disapprove it outrights c. Approve it conditionally, with suggested amendments. If renegotiated and the Senate’s suggestions are incorporated, the treaty goes into effect without need of further Senate approval. NOTE: While a treaty is re-negotiated, there is yet no treaty

b. To Contract Foreign Loan

Guarantee

Power to Contract of Guarantee Foreign Loans (PHIL. CONST., art. VII, § 20)

The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board; and subject to such limitations as may be provided by law. The Monetary Board shall, within 30 days from the end of every quarter of the calendar year, submit to Congress a complete report on loans to be contracted or guaranteed by the government of GOCCs the would have the effect of increasing foreign debts.

c. Entry into Treaties International Agreements

Principle of Transformation of International Law (PHIL. CONST., art. VII, § 21) No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of ALL the Members of the Senate. TREATIES International agreements involving political issues or changes of national policy and those involving international arrangements of permanent character

EXECUTIVE AGREEMENTS International agreements embodying adjustments of detail carrying out wellestablished national policies and traditions and those involving arrangements of more or less temporary nature

EXECUTIVE AGREEMENTS Executive agreements are concluded: (a) to adjust the details of a treaty, e.g., EDCA as to VFA; (b) pursuant to or upon confirmation by an act of the Legislature; or (c) in the exercise of the President's independent powers under the Constitution. The President may enter into an executive agreement on foreign military bases, troops or facilities only if the executive agreement is not the instrument that allows the presence of foreign military bases, troops or facilities; or merely aims to implement an existing law or treaty. (Saguisag v. Exec. Sec., G.R. No. 212426, Jan. 12, 2016) Although municipal law makes a distinction between international agreements and executive agreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction. Page 87 of 479

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The President cannot, by executive agreement, undertake an obligation that indirectly circumvents a legal prohibition.

The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the SC, it should dismiss the case. The jurisdiction of the SC (other lower courts) over a treaty is only with respect to questions of its constitutionality of validity. It does not pertain to the termination/abrogation of a treaty (Gonzales v. Hechanova, G.R. No. L-21897, Oct. 22, 1963).

Treaty v. Executive Agreement TREATY EXECUTIVE AGREEMENT Involves political Involves details issues, national policy carrying out national policy International More or less temporary agreements of a in character permanent kind Must be ratified No need to be ratified An “exchange of notes” is a record of a routine agreement that has many similarities with a private law contract. The agreement consists of the exchange of two documents, each of the parties being in possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. An exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress (Abaya vs. Edbane, G.R. No. 167919, Feb. 14, 2007). The Exchange of Notes between Secretary Romulo and the US Ambassador embodying a “No Surrender Agreement” regarding citizens arrested under the Rome Treaty is valid. An exchange of Notes is equivalent to an executive agreement and it is a valid form of international agreement. The categorization of agreements in Eastern Sea Trading, is not cast in stone. Neither a hard and fast rule on whether Senate concurrence is needed for executive agreements. (Bayan Muna v. Secretary Romulo, G.R. No. 159618, Feb. 1, 2011). The President does not have absolute unilateral authority to withdraw from a treaty.

The President enjoys some leeway in withdrawing from agreements which he or she determines to be contrary to the Constitution or statutes. The President cannot unilaterally withdraw from agreements which were entered into pursuant to congressional imprimatur. When a statute is adopted, the President cannot withdraw from the treaty being implemented unless the statute itself is repealed. (ex. Congress passed R.A 9581 ahead of the Senate’s concurrence to the Rome Statute.) The President cannot unilaterally withdraw from international agreements where the Senate concurred and expressly declared that any withdrawal must also be made with its concurrence. Effecting treaties is a shared function between the executive and legislative branches hence the Senate’s power to concur with treaties necessarily includes the power to impose conditions for its concurrence. (Pangilinan et. al. v. Cayetano et. al., G.R. No. 238875, G.R. No. 239483 & 240954, March 16, 2021)

8. POWERS RELATIVE TO APPROPRIATION MEASURES ITEM VETO POWER on the basis of: Doctrine of Inappropriate Provisions - A provision that is constitutionally inappropriate for an appropriation bill may be subject to veto even if it is not an appropriation or revenue “item.” Executive Impoundment Refusal of the President to spend funds already allocated by Congress for a specific purpose. It is, in effect, an “impoundment” of the law allocating such expenditure of funds. Budget The Executive Branch proposes a budget to Congress, which the latter considers in drafting appropriation laws. Power to Augment No law shall be passed authorizing any transfer of appropriations; however, /the President, /the President of the Senate, /the Speaker of the House of Representatives, /the Chief Justice of the Supreme Court, and /the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (PHIL. CONST., Art. VI, § 25(5))

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What are the requisites for a valid transfer of appropriation? There are two essential requisites in order that a transfer of appropriation with the corresponding funds may legally be effected. First, there must be savings in the programmed appropriation of the transferring agency. Second, there must be an existing item, project or activity with an appropriation in the receiving agency to which the savings will be transferred. (Sanchez v. COA, 552 SCRA 471) Actual savings is a sine qua non to a valid transfer of funds from one government agency to another. The word “actual” denotes that something is real or substantial, or exists presently in fact as opposed to something which is merely theoretical, possible, potential or hypothetical. (Sanchez v. COA, 552 SCRA 471)

9. VETO POWERS Veto Powers The President must communicate his decision to veto within 30 days from the date of receipt thereof. If he fails to do so, the bill shall become law as if he signed it. This rule eliminates the possibility of a ‘pocket veto’ whereby the President simply refuses to act on the bill.

Non-Delegable Powers of the President ● Commander-in-Chief powers; ● Appointment and removal power; ● The power to grant pardons and reprieves; ● The authority to receive ambassadors and other public officials; and ● The power to negotiate treaties. (Neri v. Senate, G.R. No.180643, Mar. 25, 2008) Other Powers (a) Borrowing Power: The President may contract or guarantee foreign loans on behalf of the Republic with the concurrence of the Monetary Board, subject to such limitations as may be provided by law. (b) Deportation Power (c) Power to Receive Ambassadors and other public ministers duly accredited to the Philippines (d) Informing Power: The President shall address Congress at the opening of its regular session. He may also appear before it at any time. (e) Call Congress to a special session (f) Power to Classify and Reclassify lands ————- end of topic ————-

In exercising the veto power, the bill is rejected and returned with his objections to the House from which it originated. The House shall enter the objections in the journal and proceed to reconsider it. (See earlier comment) Pocket Veto vs. Item Veto POCKET VETO ITEM VETO When the president is Power of a president to considered to have nullify or cancel rejected a bull specific provisions of a submitted to him for his bill, usually a budget approval when appropriations bill, Congress adjourns without vetoing the during the period given entire legislative to the president to package approve or reject a bill Congressional pork barrel violates the President’s power to item-veto The President cannot exercise his item-veto power because the purpose of the lump-sum discretionary budget is still uncertain. Furthermore, it cannot be considered an item because an item is defined in the field of appropriations as the particulars, details, distinct and severable parts of the appropriation or of the bill. (Belgica v. Hon. Ochoa, G.R. No. 208566, Nov. 19, 2013)

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IV. JUDICIAL DEPARTMENT TOPIC OUTLINE UNDER THE SYLLABUS: A. CONCEPT OF JUDICIAL POWER B. JUDICIAL REVIEW 1. Requisites 2. Political question doctrine 3. Moot questions 4. Operative fact doctrine C. JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY D. APPOINTMENTS TO THE JUDICIARY 1. Qualifications of Members 2. Judicial and Bar Council (composition and powers) E. THE SUPREME COURT 1. Composition, Powers, and Functions 2. En Banc and Division Cases 3. Administrative Supervision Over Lower Courts 4. Original and Appellate Jurisdiction

A. CONCEPT OF JUDICIAL POWER Judicial Power The authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Lopez v. Roxas, G.R. No. L-25716, July 28, 1966). Where Vested Vested in the Supreme Court and such lower courts as may be established by law. (PHIL. CONST., art. VIII, § 1.) Hence, they may neither attempt to assume or be compelled to perform non-judicial functions. They may not be charged with administrative functions, except when reasonably incidental to the fulfillment of their duties (Meralco v. Pasay Transportation Co., G.R. No. L-37878, Nov. 25, 1932). Judicial Power includes the duty of the courts: (PHIL. CONST., art. VIII, § 1.) ● To settle actual controversies involving rights which are legally demandable and enforceable; ● To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. Necessity of Applicable Law Before a tribunal, board, or officer may exercise judicial or quasi-judicial acts, it is necessary that there be a law that give rise to some specific rights of persons or property under which adverse claims to such rights are made, and the controversy ensuing therefrom is brought, in turn, before the tribunal, board or officer clothed with power and authority to determine what that law is and thereupon adjudicate the respective rights of the contending parties. (Santiago Jr. v. Bautista, G.R. No. L-25024, March 30, 1970). Thus, an award of honors to a student by a board of teachers may not be reversed by a court where the awards are governed by no applicable law. (Id) The court has no authority to entertain an action for judicial declaration of citizenship because there was no law authorizing such proceeding (Channie Tan v. Republic, G.R. No. L-14159, April 18, 1960).

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Courts cannot reverse the award of a board of judges in an oratorical contest (Felipe v. Leuterio, G.R. No. L-4606, May 30, 1952). Jurisdiction The power to hear and decide a case. ● Who Defines: Congress shall have the power to define, prescribe and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Sec. 5, Art. VIII (PHIL. CONST., art. VIII, § 2.), ● No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in the Constitution without its advice and concurrence (PHIL. CONST., art. VI, § 30.) Scope of Jurisdiction The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction, for our Constitution vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law. (Echegaray v. SOJ, G.R. No. 132601, Jan. 19, 1999) Limitations of Judicial Power 1. Political Questions: A question, the resolution of which has been vested by the Constitution exclusively In the people, in the exercise of their sovereign capacity, or In which full discretionary authority has been delegated to a co-equal branch of the Government (Tanada v. Cuenco, G.R. No. L-10520, Feb. 28, 1957). 2. Separation of Powers: The Supreme Court and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of judicial functions. (Manila Electric Co. v Pasay Transportation, G.R. No. 37878, Nov. 25, 1932) 3. Not the function of the judiciary to give advisory opinion: The function of the courts is to determine controversies between litigants. They do not give advisory opinions. (Director of Prisons v Ang Cho Kio, G.R. No. 30001, June 23, 1970) Expanded Jurisdiction and Authority of the Supreme Court Art. VIII, Sec.1, par. 2, of the Constitution expanded the power, authority and jurisdiction of the courts of justice, particularly the Supreme Court, to determine whether any branch of the government has

committed grave abuse of discretion amounting to lack or excess of jurisdiction. Under this expanded jurisdiction conferred to the Supreme Court, the political question doctrine is no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review (Oposa v. Factoran, Jr. G.R. No. 101083, July 30, 1993)

B. JUDICIAL REVIEW Judicial Review ● The power of the Supreme Court to declare a law, treaty, ordinance, etc. unconstitutional (PHIL. CONST., art. VIII, § 4(2).) ● Lower courts may also exercise the power of judicial review, subject to the appellate jurisdiction of the SC. (PHIL. CONST., art. VIII, § 5(2).) ● Only Supreme Court decisions set precedents. As thus, only SC decisions are binding on all.

1. REQUISITES Requisites of Judicial Review: (EARLS) 1. The question of constitutionality must be raised in the first instance, or at the Earliest opportunity. 2. The question involved must be Ripe for adjudication, e.g. the challenged government act must have had an adverse effect on the person challenging it. 3. An Actual case calling for the exercise of judicial power. 4. Resolution of the issue of constitutionality is unavoidable or is the very Lis mota of the case. 5. The person challenging the governmental act must have ‘Standing’ (Locus Standi). Exception: The Court can waive the procedural rule on standing in cases that raise issues of transcendental importance. Functions of Judicial Review 1. Checking — invalidating a law or executive act that is found to be contrary to the Constitution 2. Legitimating — upholding the validity of the law that results from a mere dismissal of a case challenging the validity of the law 3. Symbolic — to educate the bench and bar as to the controlling principles and concepts on matters of grave public

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importance for the guidance of and restraint upon the future (Salonga v. Cruz Paño, G.R. No. 59524, Feb. 18, 1985). Doctrine of Judicial Supremacy When the judiciary allocates constitutional boundaries, it neither asserts superiority nor nullifies an act of the Legislature. It only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. Justiciable Controversy A definite and concrete dispute touching on the legal relations of parties having adverse legal interests, which may be resolved by a court of law through the application of a law (Cutaran v. DENR, G.R. No 134958, Jan. 31, 2001). Requirements for Justiciability 1. That there be an actual controversy between or among the parties to the dispute; 2. That the interests of the parties be adverse; 3. That the matter in controversy be capable of being adjudicated by judicial power; and 4. That the determination of the controversy will result in practical relief to the complainant. Actual Case/Controversy ● An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. (PHILCONSA v Philippine Government, G.R. No. 218406, Nov. 29, 2016) ● There must be a contrast of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence. (Id.) ● It is the parties' duty to demonstrate actual cases or controversies worthy of judicial resolution. Pleadings must show a violation of an existing legal right or a controversy that is ripe for judicial determination. (Falcis v. Civil Registrar General, G.R. No. 217910, Sept. 3, 2019) ● Facts are the basis of an actual case or controversy. There must be sufficient facts to enable the Court to intelligently adjudicate the issues. (Id.)

Advisory Opinions ● Even the expanded jurisdiction of this Court under Article VIII, Section 1 does not provide license to provide advisory opinions. An advisory opinion is one where the factual setting is conjectural or hypothetical. (PBOAP v. DOLE, G.R. No. 202275, July 17, 2018) o In such cases, the conflict will not have sufficient concreteness or adversariness so as to constrain the discretion of this Court. After all, legal arguments from concretely lived facts are chosen narrowly by the parties. Those who bring theoretical cases will have no such limits. (Id.) ● The Court generally declines to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. The limitation of the power of judicial review to actual cases and controversies assures that the courts will not intrude into areas specifically confined to the other branches of government. (PHILCONSA v Philippine Government, G.R. No. 218406, Nov. 29, 2016) Ripe for Adjudication ● A constitutional question is ripe for adjudication when the governmental act being challenged has had a direct adverse effect on the individual challenging it. It is also necessary that there be a law that gives rise to some specific rights of persons or property, under which adverse claims are made. (Santiago Jr. v. Bautista, GR No. 25024, March 30, 1970) ● For a case to be considered ripe for adjudication, it is a prerequisite that: o an act had then been accomplished or performed by either branch of government before a court may interfere, and o the petitioner must allege the existence of an immediate or threatened injury to himself as a result of the challenged action. (PHILCONSA v. Philippine Government, G.R. No. 218406, Nov. 29, 2016) Locus Standi/Legal Standing ● Definition: a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is

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being challenged. (Francisco v. HOR, G.R. No. 160261, Nov. 10, 2003) The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. (Joya v. PCGG, G.R. No. 96541, Aug. 24, 1993) o Moreover, the interest of the party plaintiff must be personal and not one based on a desire to vindicate the constitutional right of some third and related party. (Id.) Test: whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. (Id.) Elements (ITR) o The petitioner must have personally suffered some actual or threatened Injury which can be legal, economic, or environmental; o The injury is fairly Traceable to the challenged action; and o The injury is likely to be Redressed by a favorable action (TELEBAP v. COMELEC, GR No. 132922, April 21, 1998)

Requisites for Third Party Standing (jus tertii) (IRH) 1. The litigant must have suffered an injury-infact, thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; 2. The litigant must have a close Relation to the third party; and 3. There must exist some Hindrance to the third party's ability to protect his or her own interests. (White Light v. City of Manila, G.R. No. 122846, Jan. 20, 2009) Rules on the Liberal Approach on Locus Standi TAXPAYER Allowed to sue where there is a claim of any of the following: ● public funds are illegally disbursed (Information Technology v. COMELEC, G.R. No. 159139, Jan. 13, 2004) ● public money is being deflected to

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VOTERS

CONCERNED CITIZENS

LEGISLATORS

any improper purpose (Id.) there is a wastage of public funds through the enforcement of an invalid or unconstitutional law (Id.) the tax measure is unconstitutional (David v. Arroyo, G.R. No. 171396, May 3, 2006)

Before he can invoke the power of judicial power, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. (Francisco v. HOR, G.R. No. 160261, Nov. 10, 2003) There must be a showing of obvious interest in the validity of the election law in question (David v. Arroyo, G.R. No. 171396, May 3, 2006) There must be a showing that the issues raised are of transcendental importance which must be settled early (Id.) There must be a claim that the official action complained of infringes upon their prerogatives as legislators (Biraogo v. Philippine Truth Commission, G.R. No. 192935, Dec. 7, 2010)

Standing in Environmental Cases The Rules of Procedure for Environmental Cases liberalized the requirements on standing, allowing the filing of a citizen's suit by any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. (Resident Marine Mammals v. Reyes, G.R. No. 180771, April 21, 2015; Segovia v. The Climate

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Change Commission, G.R. No. 211010, March 7, 2017) Guidelines in determining whether or not a matter is of transcendental importance: ● The character of the funds or other assets involved in the case; ● The presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and ● The lack of any other party with a more direct and specific interest in the questions being raised (Chamber of Real Estate and Builders’ Association, Inc. v. Energy Regulatory Commission, et al., G.R. No. 174697, July 8, 2010). Rule on Raising at the Earliest Opportunity General Rule: The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002) Exceptions: 1. In criminal cases — at any time at the discretion of the court 2. In civil cases — at any stage of the proceedings if necessary for the determination of the case itself; or 3. In every case (Except where there is estoppel) — at any stage if it involves the jurisdiction of the court (People v. Vera, G.R. No. 45685, Nov. 16, 1937) 4. Operative fact doctrine

2. POLITICAL QUESTION DOCTRINE Political Question A question, the resolution of which has been vested by the Constitution exclusively: 1. In the people, in the exercise of their sovereign capacity, or 2. In which full discretionary authority has been delegated to a co-equal branch of the Government (Tanada v. Cuenco, G.R. No. L-10520, Feb. 28, 1957). The judiciary is NOT precluded from reviewing “political questions”. Under the second clause of Sec. 1, Art. VIII (the power to determine whether or not there has been a grave abuse of discretion) the Courts may now determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.

A political question arises in constitutional issues relating to the powers or competence of different agencies and departments of the executive or those of the legislature. The political question doctrine is used as a defense when the petition asks this court to nullify certain acts that are exclusively within the domain of their respective competencies, as provided by the Constitution or the law. In such a situation, presumptively, this court should act with deference. It will decline to void an act unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of discretion. ● The existence of constitutionally imposed limits justifies subjecting the official actions of the body to the scrutiny and review of the Court. ● Furthermore, the concept of a political question never precludes judicial review when the act of a constitutional organ infringes upon a fundamental individual or collective right. (The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, Jan. 21, 2015) While courts can determine questions of legality with respect to governmental action, they cannot review government policies and the wisdom behind such policies. These questions are vested by the Constitution in the Executive and Legislative Departments. Examples of political questions in jurisprudence Interpretation of the meaning of “disorderly behavior” and the legislature’s power to suspend a member (there is no procedure for the imposition of the penalty of suspension nor did the 1935 Constitution define what “disorderly behavior is). The matter is left to the discretion of the legislature (Osmeña, Jr. v. Pendatun, G.R. No. L-17144, Oct. 28, 1960). Whether the court could intervene in a case where the House of Representatives was said to have disregarded its own rule. The court was held to have been without authority to intervene (Arroyo v. De Venecia, G.R. No. 127255, Aug. 14, 1997). Recognition of diplomatic immunity (ICMC v. Hon. Calleja, G.R. No. 85750, Sept. 28, 1990). The determination of what constitutes “betrayal of public trust” or “other high crimes” is a political question. A determination of what constitutes an impeachable offense is a purely political question, which the Constitution has left to the sound discretion of the legislature (Gutierrez v. The House

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of Representatives Committee on Justice, et al., G.R. No. 193459, Feb. 15, 2011). Examples of cases in jurisprudence where the Court held that there was no political question involved. Apportionment of representative districts (because there are constitutional rules governing apportionment) (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. 8, 2008). Suspension of the privilege of the writ of habeas corpus because the Constitution sets limits to executive discretion on the matter (Montenegro v. Castañeda, G.R. No. L-4221, Aug. 30, 1952). Manner of forming the Commission on Appointments (Daza v. Singson, G.R. No. 86344, Dec. 21, 1989; Coseteng v. Mitra, G.R. No. 86649, July 12, 1990; Guingona v. Gonzales, G.R. No. 106971, Oct. 20, 1992).

3. MOOT QUESTIONS ●

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An action is considered moot when it no longer presents a justiciable controversy because the issues involved have become academic or dead or when the matter has already been resolved. There is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events (Atty. Evillo C. Pormento v. Estrada and COMELEC, G.R. No. 191988, Aug. 31, 2010). However, the “moot and academic” principle is not a magical formula that automatically dissuades courts in resolving a case. The Court may still take cognizance of an otherwise moot case, if it finds that: o there is a grave violation of the Constitution; o the situation is of exceptional character and paramount public interest is involved; o the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and o the case is capable of repetition yet evading review. (Narra Nickel Mining and Development Corp. v. Redmont Consolidated Mines Corp., G.R. No. 195580, Jan. 28, 2015)

4. OPERATIVE FACT DOCTRINE Effect of a Declaration of Unconstitutionality An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all. (Film Development Council of the Philippines v. Colon Heritage Realty Corp., G.R. Nos. 203754 & 204418, Oct. 15, 2019) The exception is the doctrine of operative fact, which applies as a matter of equity and fair play. (Id.) ● This doctrine nullifies the effects of an unconstitutional law or an executive act by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences that cannot always be ignored. (Id.) ● Hence, it legitimizes otherwise invalid acts done pursuant thereto because of considerations of practicality and fairness. In this regard, certain acts done pursuant to a legal provision which was just recently declared as unconstitutional cannot be anymore undone because not only would it be highly impractical to do so, but more so, unfair to those who have, in good faith, relied on the said legal provision prior to the time it was struck down. (Id.) ● It applies only to cases where extraordinary circ*mstances exist, AND only when the extraordinary circ*mstances have met the stringent conditions that will permit its application. (Araullo v. Aquino III, G.R. No. 209287, July 1, 2014)

C. JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY Concepts of Judicial Independence DECISIONAL INDEPENDENCE OR INSTITUTIONAL INDIVIDUAL (JUDICIAL) JUDICIAL INDEPENDENCE INDEPENDENCE Refers to a judge's Describes the ability to render separation of the decisions free from judicial branch from the political or popular executive and influence based solely legislative branches of on the individual facts government and applicable law Focuses on each particular judge and seeks to insure his or

Focuses on the independence of the judiciary as a branch of

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her ability to decide cases with autonomy within the constraints of the law

government and protects judges as a class

A judge has this kind of independence when he can do his job without having to hear — or at least without having to take it seriously if he does hear — criticisms of his personal morality and fitness for judicial office

Refers to the collective independence of the judiciary as a body

A truly independent judiciary is possible only when both concepts of independence are preserved — wherein public confidence in the competence and integrity of the judiciary is maintained, and the public accepts the legitimacy of judicial authority. (Re: COA Opinion on Computation of Appraised Value of Properties Purchased by SC Justices, A.M. No. 117-10-SC, July 31, 2012; In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet, A.M. No. 07-09-13-SC, Aug. 8, 2008) Judiciary in General ● Creation and abolition of courts o Congress’ power to create courts implies the power to abolish and even re-organize courts. But this power cannot be exercised in a manner that would undermine the security of tenure of the judiciary. If the abolition or re-organization is done in good faith and not for political or personal reasons, it is valid. (De La Llana v. Alba, G.R. No. L-57883, March 12 1982) o Congress may enact laws prohibiting courts from issuing restraining orders against administrative acts in controversies involving facts or the exercise of discretion. However, on issues involving questions of law, courts cannot be prohibited from exercising their power to restrain such acts. (Malaga v. Penachos, Jr., G.R. No. 86695, Sept. 3, 1992) ● Members of the judiciary enjoy security of tenure. (PHIL. CONST., art. VIII, § 2.) ● Members of the judiciary may not be designated to any agency performing

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quasi-judicial or administrative functions. (PHIL. CONST., art. VIII, § 12.) o The Presidential Electoral Tribunal (PET) does not exercise quasijudicial functions. When the Supreme Court, as the PET, resolves a presidential or vicepresidential election contest, it performs what is essentially a judicial power (Macalintal v. PET, G.R. No. 191618, Nov. 23, 2010). The salaries of Justices and judges shall be fixed by law and cannot be decreased during their continuance in office. (PHIL. CONST., art. VIII, § 10.) o However, their salaries are properly subject to a general income tax law applicable to all income earners and that the payment of such income tax does not fall within the constitutional protection against decrease of their salaries during their continuance in office. (Nitafan v. CIR, G.R. No. 78780, July 23, 1987). The right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary be protected from due influence or interference. (In re Letter of UP Law Faculty, A.M. No. 10-104-C, March 8, 2011) The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. (PHIL. CONST., art. VIII, § 3.) o The grant of fiscal autonomy to the Judiciary is more extensive than the mere automatic and regular release of its approved annual appropriations. Real fiscal autonomy covers the grant to the Judiciary of the authority to use and dispose of its funds and properties at will, free from any outside control or interference. (Re: COA Opinion on Computation of Appraised Value of Properties Purchased by SC Justices, A.M. No. 11-7-10-SC, July 31, 2012) o Fiscal autonomy contemplates a guarantee on full flexibility to allocate and utilize their resources with the wisdom and dispatch that Page 97 of 479

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the Judiciary’s needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. (Bengzon v. Drilon, G.R. No. 103524, April 15, 1992)  Legal fees constitute not only a vital source of the Court’s financial resources but also comprise an essential element of the Court’s fiscal independence. Any exemption from the payment of legal fees granted by Congress to GOCCs and LGUs will necessarily reduce the Judiciary Development Fund (JDF) and the Special Allowance for the Judiciary Fund (SAJF). Such situation is constitutionally infirm for it impairs the Court’s guaranteed fiscal autonomy, which recognizes the power and authority of the Court to levy, assess and collect fees including legal fees. (Re: In the Matter of Clarification Of Exemption from Payment of All Court and Sheriff's Fees of Cooperatives, A.M. No. 12-2-03-0, March 13, 2012)

questioning his title to the office he holds. (Republic v. Sereno, G.R. No. 237428, June 19, 2018) ●

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Supreme Court in General ● Being a Constitutional body, it may not be abolished by law. ● In GENERAL, its members may only be removed through impeachment. (PHIL. CONST., art. XI, § 2.) o Members of the Supreme Court may now be removed from office through a petition for quo warranto. Section 2, Article XI of the Constitution allows the institution of a quo warranto action against an impeachable officer. A quo warranto petition is predicated on grounds distinct from those of impeachment. The former questions the validity of a public officer's appointment while the latter indicts him for the so-called impeachable offenses without

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Jurisdiction o It may not be deprived of minimum and appellate jurisdiction o Congress may not increase the Supreme Court’s appellate jurisdiction without its advice or concurrence (PHIL. CONST., art. VI, § 30.) o Congress cannot deprive the Supreme Court of its jurisdiction over cases provided for in the Constitution (PHIL. CONST., art. VIII, § 2.) and may only do the following: ▪ Define enforceable and demandable rights; prescribing remedies for violations of such rights ▪ Determine the court with jurisdiction to hear and decide controversies or disputes arising from legal rights (Lopez v. Roxas, G.R. No. L25716,1966) It has administrative supervision over all inferior courts and personnel. (PHIL. CONST., art. VIII, § 6.) It has exclusive power to discipline or dismiss judges/ justices of inferior courts. (PHIL. CONST., art. VIII, § 11.) The Court alone may initiate the Rules of Court. (PHIL. CONST., art. VIII, § 5(5).) The Court alone may order temporary detail of judges. (PHIL. CONST., art. VIII, § 5(3).) The Court can appoint all officials and employees of the Judiciary. (PHIL. CONST., art. VIII, § 5(6).)

D. APPOINTMENTS TO THE JUDICIARY 1. QUALIFICATIONS OF MEMBERS Every prospective appointee to the judiciary must apprise the appointing authority of every matter bearing on his fitness for judicial office including such circ*mstances as may reflect on his integrity and probity (In Re: JBC v. Judge Quitain, JBC No. 013, Aug. 22, 2007). Until a correction of existing records on one’s birth and citizenship, one cannot accept an appointment

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to the judiciary, as that would be a violation of the Constitution. For this reason, he can be prevented by injunction from doing so (Kilosbayan v. Ermita, G.R. No. 177721, July 3, 2007). Qualifications for Judges and Justices LOWER COLLEGIATE LOWER NONSUPREME COURTS (CA, COLLEGIATE COURT CTA, COURTS SANDIGANBA YAN) Natural-born citizen of the Citizen of the Philippines Philippines (may be naturalized) At least 40 Possesses other qualifications years old prescribed by Congress At least 15 Member of the Philippine Bar years of experience as a judge or in the practice of law in the Philippines A person of proven competence, integrity, probity, and independence (PHIL. CONST., art. VIII, § 7.) A Supreme Court Justice, who is required under the Constitution to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during his incumbency. Further, during his incumbency, he cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. (In Re Gonzalez, A.M. No. 88-4-5433, April 15, 1988) The Constitution requires that members of the Judiciary must be of proven integrity. To be of proven integrity means that the applicant must have established steadfast adherence to moral and ethical principles. One who chronically fails to file his or her SALN violates the Constitution and the laws; and one who violates the Constitution and the laws cannot rightfully claim to be person of integrity and may thus be removed through a quo warranto petition. (Republic v. Sereno, G.R. No. 237428, June 19, 2018)

Lower Non-Collegiate Courts RTC MTC At least 35 years old At least 30 years old Engaged for at least 10 Engaged for at least 5 years in the practice of years in the practice of law in the Philippines law in the Philippines or or Has held public office in the Philippines requiring admission to the practice of law as a requisite

Has held public office in the Philippines requiring admission to the practice of law as a requisite

Term (PHIL. CONST., art. VIII, § 11.) Members of the Supreme Court and judges of the lower courts hold office during good behavior until: 1. The age of 70 years old 2. They become incapacitated to discharge their duties

2. JUDICIAL AND BAR COUNCIL a. Composition (Phil. Const., art. VIII, § 8.) 1. 2. 3. 4. 5. 6. 7.

Chief Justice, as ex-officio chairman Secretary of Justice, as ex-officio member Representative of Congress, as ex-officio member Representative of the Integrated Bar A professor of law A retired member of the Supreme Court Private sector representative

Regular Members of the JBC ● The last four in the enumeration above are the regular members of the JBC. ● The President, with the consent of the Commission on Appointments, appoints regular members who serve for 4 years, in staggered terms. (PHIL. CONST., art. VIII, § 8(2).) ● They shall receive such emoluments as may be determined by the Supreme Court. (PHIL. CONST., art. VIII, § 8(4).) Clerk of the Supreme Court – serves as the secretary ex officio of the Council and shall keep a record of its proceedings (PHIL. CONST., art. VIII, § 8(3).) The JBC is composed of 7 members coming from different sectors. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is beyond dispute that the Constitution is explicit that we have only “a representative”. Thus, two (2)

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representatives from Congress would increase the number of JBC members to eight (8), a number beyond what the Constitution has contemplated. The lone representative of Congress is entitled to one full vote. This effectively disallows the scheme of splitting the said vote into half between two representatives of Congress. (Chavez v. JBC, G.R. No. 202242, April 16, 2013) Thus, any inclusion of another member, whether with one whole vote or 1/2 of it, goes against that mandate. Section 8(1), Article VIII of the Constitution, providing Congress with an equal voice with other members of the JBC in recommending appointees to the Judiciary is explicit. (Id.) The JBC can still perform its mandated task of submitting the list of nominees to the President despite a vacancy in the position of Chief Justice or the ex-officio Chairman (as a result, for example, of impeachment). In such case, the most Senior Justice of this Court who is not an applicant for the position of Chief Justice should participate in the deliberations for the selection of nominees for the said vacant post and preside over the proceedings. (Dulay v. JBC, G.R. No. 202143, July 3, 2012) The Supreme Court shall provide in its annual budget the appropriations for the Council. (PHIL. CONST., art. VIII, § 8(4)).

b. Powers Functions of The JBC (PHIL. CONST., art. VIII, § 8(5).) Primary Function: Recommend appointees to the Judiciary. Secondary Function: It may also exercise such other functions as the SC may assign to it. Incidental Functions The functions of searching, screening, and selecting are necessary and incidental to the JBC's principal function of choosing and recommending nominees for vacancies in the judiciary for appointment by the President. In carrying out its main function, the JBC has the authority to set the standards/criteria in choosing its nominees for every vacancy in the judiciary, subject only to the minimum qualifications required by the Constitution and law for every position. (Villanueva v. JBC, G.R. No. 211833, April 7, 2015)   Rules on Appointments/Clustering of Nominees 1. The President shall appoint Members of the Supreme Court and judges of lower courts

2. 3. 4. 5.

from a list of at least three (3) nominees for each vacancy, as prepared by the JBC. No CA confirmation is needed for appointments to the Judiciary. Vacancies in SC should be filled within 90 days from the occurrence of the vacancy. Vacancies in lower courts should be filled within 90 days from submission to the President of the JBC list. Midnight Appointments – Explicit prohibition against midnight appointments is already unnecessary due to the intervention of and screening made by Judicial Bar Council (JBC) (De Castro v. JBC, G.R. No. 191002, April 20, 2010)

The Supreme Court has supervision over the JBC, and this authority covers the overseeing of the JBC’s compliance with its own rules. (Jardeleza v. Sereno, G.R. No. 213181, Aug. 19, 2014) The primary limitation to the JBC's exercise of discretion is that the nominee must possess the minimum qualifications required by the Constitution and the laws relative to the position. While the resolution of who to nominate as between two candidates of equal qualification cannot be dictated by this Court upon the JBC, such surrender of choice presupposes that whosoever is nominated is not otherwise disqualified. The question of whether or not the nominee possesses the requisite qualifications is determined based on facts and therefore does not depend on, nor call for, the exercise of discretion on the part of the nominating body. Thus, the nomination by the JBC is not accurately an exercise of policy or wisdom as to place the JBC's actions in the same category as political questions that the Court is barred from resolving. (Republic v. Sereno, G.R. No. 237428, June 19, 2018) Mandamus will not lie to compel the JBC to select and recommend nominees for vacant judicial positions, which is a discretionary function. There is no legal right to be included in the list of nominees for judicial vacancies. Possession of the constitutional and statutory qualifications for appointment to the judiciary may not be used to legally demand that one's name be included in the list of candidates for a judicial vacancy. (Villanueva v. JBC, G.R. No. 211833, April 7, 2015) The clustering of nominees for the six vacancies in the Sandiganbayan by the JBC impaired the President's power to appoint members of the Judiciary and to determine the seniority of the newly-appointed Sandiganbayan Associate Justices. The clustering by the JBC of nominees for

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simultaneous or closely successive vacancies in collegiate courts can actually be a device to favor or prejudice a particular nominee. A favored nominee can be included in a cluster with no other strong contender to ensure his/her appointment; or conversely, a nominee can be placed in a cluster with many strong contenders to minimize his/her chances of appointment. (Aguinaldo v. Aquino, G.R. No. 224302, November 29, 2016)

E. THE SUPREME COURT 1. COMPOSITION, POWERS, AND FUNCTIONS A Constitutional Court The Supreme Court is the only constitutional court, all the lower courts being of statutory creation. Members (PHIL. CONST., art. VIII, § 4(1).) ● Chief Justice, and ● 14 Associate Justices The President cannot appoint a temporary member of the Supreme Court. There can be no doubt that the Chief Justice and Associate Justices required by the Constitution to compose the Supreme Court are regular members of the Court. A temporary member would be a misnomer, implying a position not contemplated by the Constitution. Thus, a law which authorizes the President to designate any judge of the lower court or cadastral judge to act as member of the Supreme Court is void (Vargas vs. Rillaroza, G.R. No. L-1612, Feb. 26, 1948). The members of the judiciary perform judicial functions. This function is exclusive. They cannot perform nonjudicial functions. For this reason, the Constitution provides that the members of the Supreme Court and of other courts shall not be delegated to any agency performing quasi-judicial or administrative functions. (PHIL. CONST., art. VIII, § 12.) Primus Inter Pares Literally, first among equals; the maxim indicates that a person is the most senior of a group of people sharing the same rank or office. The phrase has been used to describe the status, condition or role of the Chief Justice in many supreme courts around the world. Hearing Of Cases In The Supreme Court (PHIL. CONST., art. VIII, § 4(1).) ● Divisions of 3, 5, or 7 members ● En Banc

Any vacancy should be filled within 90 days from the occurrence thereof. Decisions in General No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. (PHIL. CONST., art. VIII, § 14.) ● It is a requirement of due process that the parties to a litigation be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court. (NICOS Industrial Corp. v. Court of Appeals, G.R. No. 88709, Feb. 11, 1992) ● The purpose [of this Constitutional requirement is] to inform the person reading the decision, and especially the parties, of how it was reached by the court after consideration of the pertinent facts and examination of the applicable laws. (Francisco v. Permskul, G.R. No. 81006, May 12, 1989) ● The [provision] does not apply to interlocutory orders, such as one granting a motion for postponement or quashing a subpoena, because it refers only to decisions on the merits and not to orders of the trial court resolving incidental matters. (NICOS Industrial Corp. v. Court of Appeals, G.R. No. 88709, Feb. 11, 1992) ● So long as the decision contains the necessary facts to warrant its conclusions, it is no error for [the court] to withhold any specific finding of facts with respect to the evidence for the defense. The mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution. (Air France v. Carrascoso, G.R. No. L-21438, Sept. 28, 1986) ● The significance of factual findings lies in the value of the decision as a precedent. How will the ruling be applied in the future, if there is no point of factual comparison? (Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004) No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. (PHIL. CONST., art. VIII, § 14).)

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Decisions by The Supreme Court (PHIL. CONST., art. VIII, § 13.) ● The conclusions of the Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. ● A certification to this effect must be signed by the Chief Justice and attached to the record of the case, and served upon the parties. o Absence of a certification does not mean that there was no consultation prior to assignment of the case to a member. The presumption of regularity prevails but the erring officer will be liable administratively (Consing v. CA, G.R. No. 78272, Aug. 29, 1989). ● Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same requirements shall be observed by all lower collegiate courts. All lower collegiate courts shall observe the same procedure (e.g., CA, CTA, and Sandiganbayan). Minute Resolutions The adjudication of a case by minute resolution is an exercise of judicial discretion and constitutes sound and valid judicial practice. (Agoy v. Araneta Center, Inc., G.R. No. 196358 (Resolution), March 21, 2012) Minute resolutions are issued for the prompt dispatch of the actions of the Court. While they are the results of the deliberations by the Justices of the Court, they are promulgated by the Clerk of Court or his assistants whose duty is to inform the parties of the action taken on their cases by quoting verbatim the resolutions adopted by the Court. Neither the Clerk of Court nor his assistants take part in the deliberations of the case. They merely transmit the Court's action in the form prescribed by its Internal Rules. (Id.) When a minute resolution denies or dismisses a petition for failure to comply with formal and substantive requirements, the challenged decision, together with its findings of fact and legal conclusions, are deemed sustained. (Philippine Health Care Providers v. CIR, G.R. No. 167330, June 12, 2009) With respect to the same subject matter and the same issues concerning the same parties, it constitutes res judicata. However, if other parties or

another subject matter (even with the same parties and issues) is involved, the minute resolution is not binding precedent. (Id.) There are substantial, not simply formal, distinctions between a minute resolution and a decision. The constitutional requirement that the facts and the law on which the judgment is based must be expressed clearly and distinctly applies only to decisions, not to minute resolutions. A minute resolution is signed only by the clerk of court by authority of the justices, unlike a decision. It does not require the certification of the Chief Justice. Moreover, unlike decisions, minute resolutions are not published in the Philippine Reports. Finally, the proviso of Section 4(3) of Article VIII speaks of a decision. Indeed, as a rule, this Court lays down doctrines or principles of law which constitute binding precedent in a decision duly signed by the members of the Court and certified by the Chief Justice. (Id.) Memorandum Decisions Memorandum decisions, where the appellate court adopts the findings of fact and law of the lower court, are allowed as long as the decision adopted by reference is attached to the Memorandum for easy reference (Oil and Natural Gas Commission v. CA, G.R. No. 114323, July 23, 1998). Sin Perjuico Judgments One that is rendered without a statement of the facts in support of its conclusions, to be later supplemented by the final judgment. The Supreme Court expressed its disapproval of the practice of rendering of sin perjuico judgments. (NACHURA) Timeframe for Deciding SUPREME COLLEGIATE COURT COURTS 24 months 12 months from from submission submission (PHIL. CONST., art. VIII, § 15.)

LOWER COURTS 3 months from submission

The periods above commence from the date of submission for decision or resolution. A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the Court itself. Upon expiration of the period without decision or resolution, a certification stating why no decision or resolution has been rendered shall be issued and signed by the Chief Justice or presiding judge.

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A copy of the certification shall be attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period.

The expiration of the period notwithstanding, the court shall decide or resolve the case or matter without further delay.

Being the court of last resort, the Supreme Court should be given an ample amount of time to deliberate on cases pending before it. While the 24month period provided under the 1987 Constitution is persuasive, it does not summarily bind this Court to the disposition of cases brought before it. It is a mere directive to ensure this Court's prompt resolution of cases, and should not be interpreted as an inflexible rule. (Re: Elvira N. Enalbes, A.M. No. 18-11-09-SC (Resolution, Jan. 22, 2019) The Sandiganbayan falls under the 3-month rule because it is a trial-court, not a collegiate court (Re: Problems of Delays in Cases Before the Sandiganbayan, A.M. No. 00- 8-05-SC, Jan. 31, 2002). A judge who fails to resolve cases within the period prescribed may be held liable for gross inefficiency, unless he explains his predicament and asked for extensions of time from the Supreme Court. (OCA v. Quiñanola, A.M. No. MTJ-99-1216, Oct. 20, 1999)

2. EN BANC AND DIVISION CASES En banc (PHIL. CONST., art. VIII, § 4(2).) ● All cases involving constitutionality of a: (LIT) o Law o International or executive agreement o Treaty ● All cases involving the constitutionality, application or operation of: (POPORI) o Presidential decrees o Orders o Proclamations o Ordinances o Other Regulations o Instructions ● Cases required to be heard en banc under the Rules of Court: o Appeals from Sandiganbayan and from the Constitutional Commissions o Cases heard by a division where required majority of 3 was not obtained

Cases where SC modifies or reverses a doctrine or principle of law laid down by the SC en banc or by a division Administrative cases to discipline or dismiss judges of lower courts Election contests for President and Vice-President

Cases required to be heard en banc shall be decided with the concurrence of a majority of the Members who: ● actually took part in the deliberations on the issues in the case and ● voted thereon No doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. Division (PHIL. CONST., art. VIII, § 4(3).) ● Cases or matters heard by a division shall be decided or resolved with: o the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon and, o in no case without the concurrence of at least three of such Members. ● When the required number is not obtained, the case shall be decided en banc. There is a distinction between cases, on the one hand, and matters, on the other hand, such that cases are "decided" while matters, which include motions, are "resolved", applying the rule of reddendo singula singulis. (Fortich v. Corona, G.R. No. 131457, Aug. 19, 1999)   ● Only cases are referred to the Court en banc for decision whenever the required number of votes is not obtained. ● Conversely, the rule does not apply where the required three votes is not obtained in the resolution of a motion for reconsideration. ● Hence, “when the required number is not obtained, the case shall be decided en banc” only speaks of “case” and not “matter.” ● Article VIII, Section 4(3) pertains to the disposition of cases by a division. If there is a tie in the voting, there is no decision. The only way to dispose of the case then is to refer it to the Court en banc. On the other hand, if a case has already been decided by the division and the losing party files a Page 103 of 479

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motion for reconsideration, the failure of the division to resolve the motion because of a tie in the voting does not leave the case undecided. There is still the decision which must stand in view of the failure of the members of the division to muster the necessary vote for its reconsideration. Quite plainly, if the voting results in a tie, the motion for reconsideration is lost. The Supreme Court sitting en banc is not an appellate court vis-à-vis its Divisions, and it exercises no appellate jurisdiction over the latter. Each division of the Court is considered not a body inferior to the Court en banc, and sits veritably as the Court en banc itself. It bears to stress further that a resolution of the Division denying a party’s motion for referral to the Court en banc of any Division case, shall be final and not appealable to the Court en banc. (Apo Fruits v. CA, G.R. No. 164195, 2008) PROCEDURAL RULE-MAKING (PHIL. CONST., art. VIII, § 5(5).) The Supreme Court has the power to promulgate rules concerning the: ● Protection and enforcement of constitutional rights ● Pleading, practice and procedure in all courts ● Admission to the practice of law ● The Integrated Bar ● Legal assistance to the underprivileged Limitations on Judicial Rule-Making: 1. It should provide a simplified and inexpensive procedure for the speedy disposition of cases. 2. It should be uniform for all courts of the same grade. 3. It should not diminish, increase, or modify substantive rights. It is possible for a substantive matter to be nonetheless embodied in a rule of procedure. Yet the absorption of the substantive point into a procedural rule does not prevent the substantive right from being superseded or amended by statute, for the creation of property rights is a matter for the legislature to enact on, and not for the courts to decide upon. (Republic v. Gingoyon, G.R. No. 166429, Feb. 1, 2006). In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial

process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure. (Estipona v. Lobrigo, G.R. No. 226679, Aug. 15, 2017) The rules on plea bargaining neither create a right nor take away a vested right. Instead, it operates as a means to implement an existing right by regulating the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. Sec. 23 of the Comprehensive Dangerous Drugs Act, which states that “[a]ny person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining,” is unconstitutional as it encroaches on the constitutional rule-making power of the Court. (Id.) A legislative grant of exemption from the payment of legal fees under RA 8291 was held to be unconstitutional since the payment of legal fees is an integral part of the rules promulgated by the court pursuant to its rule-making power under the Constitution. The other branches cannot trespass upon this prerogative by enacting laws or issue orders that effectively repeal, alter or modify any of the procedural rules (Re: Petition for Recognition of the GSIS from Payment of Legal Fees, A.M. No. 082-01-0, Feb. 11, 2010). Rule-making power also includes the inherent power to suspend its own rules in particular cases in the interest of justice. (Philippine Blooming Mills Employment v. Philippine Blooming Mills Co., G.R. No. L-31195, June 5, 1973) The constitutional grant to promulgate rules carries with it the power, inter alia, to determine whether to give the said rules prospective or retroactive effect. (People v. Lacson, G.R. No. 149453, April 1, 2003)

3. ADMINISTRATIVE SUPERVISION OVER LOWER COURTS (PHIL. CONST., art. VIII, § 6.) The Supreme Court has administrative supervision over all inferior courts and personnel. Administrative supervision merely involves overseeing the operations of agencies to ensure that they are managed effectively, efficiently and

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economically, but without interference with day-today activities. Thus, to effectively exercise its power of administrative supervision over all courts as prescribed by the Constitution, P.D. No. 828, as amended, created the Office of the Court Administrator. Nowhere in the functions of the several offices in the Office of the Court Administrator is it provided that the Supreme Court can assume jurisdiction over a case already pending with another court. (Agcaoili v. Fariñas, G.R. No. 232395, July 3, 2018) Administrative jurisdiction over a court employee belongs to the Supreme Court, regardless of whether the offense was committed before or after employment in the judiciary. (Ampong v CSC, G.R. No. 167916, Aug. 26, 2008) It is only the Supreme Court that can oversee the judges’ and court personnel’s compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. (Maceda v. Vasquez, G.R. No. 102781, April 22, 1993) Thus: ●

●

The Ombudsman cannot justify its investigation of a judge on the powers granted to it by the Constitution. It cannot compel the Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter. (Id.) The Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether and administrative aspect is involved therein. (Caoibes, Jr. v. Ombudsman, G.R. No. 132177, July 19, 2001) The CSC must likewise bring its complaint against a judicial employee before the OCA. However, such employee may be estopped from questioning the jurisdiction of the CSC under specific circ*mstances. (Ampong v CSC, G.R. No. 167916, Aug. 26, 2008)

Administrative supervision also includes: ● Power to temporarily assign lower court judges to other stations in the public

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interest; such assignment shall not exceed six (6) months without the consent of the judge concerned (PHIL. CONST., art. VIII, § 5(3).) Order a change of venue or place of trial to avoid a miscarriage of justice (PHIL. CONST., art. VIII, § 5(4).)

The administrative function of the Court to transfer cases is a matter of venue, rather than jurisdiction. The Court may transfer the trial of cases from one court to another of equal rank in a neighboring site, whenever the imperative of securing a fair and impartial trial, or of preventing a miscarriage of justice, so demands. (Agcaoili v. Fariñas, G.R. No. 232395, July 3, 2018) POWER TO DISCIPLINE (PHIL. CONST., art. VIII, § 11.) The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. Decisions of the SC on disciplinary cases en banc is needed only when the penalty imposed is dismissal of a judge, disbarment of a lawyer, suspension of either for more than 1 year or a fine exceeding 10,000 pesos. Otherwise, the case may be decided by a division. (People v. Gacott, G.R. No. 116049, July 13, 1995) The rule prohibiting the institution of disbarment proceedings against an impeachable officer applies only during his or her tenure and does not create immunity from liability for possibly criminal acts or for alleged violations of the Code of Judicial Conduct or other supposed violations. Provided that the requirements of due process are met, the Court may penalize retired members of the Judiciary for misconduct committed during their incumbency. (In Re Undated Letter of Mr. Louis C. Biraogo, A.M. No. 09-2-19-SC, Feb. 24, 2009) POWER TO APPOINT The Supreme Court has the power to appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

4. ORIGINAL AND APPELLATE JURISDICTION (PHIL. CONST., art. VIII, §5(1) and (2)) The Supreme Court has original jurisdiction over: 1. Cases affecting: a. Foreign ambassadors b. Other foreign public ministers Page 105 of 479

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Consuls stationed Philippines Petitions for: a. Certiorari b. Prohibition c. Mandamus d. Quo Warranto e. Habeas Corpus

the

The Supreme Court has appellate jurisdiction (i.e. review, revise, reverse, modify, or affirm on appeal or certiorari) over final judgments and orders of lower courts in: 1. All cases involving constitutionality or validity of any Law, International agreement or Treaty (LIT) 2. All cases involving the constitutionality or validity of any Presidential decree, Order, Proclamation, Ordinance, Regulation or Instruction (POPORI) 3. All cases involving the legality of any: Tax, Impost, Toll, Assessment or any Penalty imposed in relation thereto (TITAP) 4. All cases in which the jurisdiction of any lower court is in issue 5. Criminal cases where the penalty imposed is reclusion perpetua or higher 6. All cases where only errors or questions of law are involved Judicial Privilege Judicial privilege insulates the Judiciary from an improper intrusion into the functions of the judicial branch and shields justices, judges, and court officials and employees from public scrutiny or the pressure of public opinion that would impair a judge’s ability to render impartial decisions. (In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses under the Subpoenas of February 10, 2012 and the Various Letters of Impeachment Prosecution Panel dated January 19 and 25, 2012, Notice of Resolution, February 14, 2012). Deliberative Process Privilege (Id.) This privilege guards against the disclosure of information/communication involving as it does the deliberative process of reaching a decision. This enables the Members of the Court to freely discuss the issues without fear of criticism for holding unpopular positions or fear of humiliation for one's comments.

●

i.e. if they were made in the attempt to reach a final conclusion. Deliberative – if it reflects the give-andtake of the consultative process. The key question in determining whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency.

Summary of privileged documents or communications not subject to disclosure: (Id.) ● Court actions such as the result of the raffle of cases and the actions taken by the Court on each case included in the agenda of the Court’s session on acts done material to pending cases, except where a party litigant requests information on the result of the raffle of the case, pursuant to Rule 7, Section 3 of the Rules of Court of the Supreme Court (IRSC); ● Court deliberations or the deliberations of the Members of the court sessions on cases and matters pending before the Court; ● Court records which are “pre-decisional” and “deliberative” in nature; ● Confidential Information secured by justices, judges, court officials and employees in the course of their official functions mentioned in the 2 preceding enumerations, are privileged even after their term of office; ● Records of cases that are still pending for decision are privileged materials that cannot be disclosed, except only for pleadings, orders and resolutions that have been made available by court to the general public. ● The principle of comity or interdepartmental courtesy demands that the highest officials of each department be exempt from the compulsory processes of the other departments; ● These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her individual capacity. Since the Court is higher than the individual justices or judges, no sitting or retired justice or judge, not even the Chief Justice, may claim exception without the consent of the Court.

To qualify for protection under the deliberative process privilege, the agency must show that the document is both predecisional and deliberative. ● Predecisional – if it precedes, in temporal sequence, the decision to which it relates

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The Internal Rules of the Supreme Court (IRSC) prohibits the disclosure of: 1. Result of the raffle of cases; 2. Actions taken by the Court on each case included in the agenda of the Court’s session; 3. Deliberations of the Members in court sessions on cases and matters pending before it; 4. The privilege against disclosure of these kinds of information/communication is known as deliberative process privilege

————- end of topic ————-

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VI. CONSTITUTIONAL COMMISSIONS TOPIC OUTLINE UNDER THE SYLLABUS: VI. CONSTITUTIONAL (COMELEC, COA, CSC)

COMMISSIONS

A. CONSTITUTIONAL SAFEGUARDS TO ENSURE INDEPENDENCE OF COMMISSIONS B. COMMON PROVISIONS C. POWERS AND FUNCTIONS D. COMPOSITION AND QUALIFICATION OF MEMBERS E. PROHIBITED OFFICES AND INTERESTS

A. CONSTITUTIONAL SAFEGUARDS TO ENSURE INDEPENDENCE OF COMMISSIONS Constitutional Safeguards ● The commissions are constitutionally created, and may not be abolished by law (PHIL. CONST. art. IX-A, §1) ● Each is expressly described as ‘independent’ ● Each is conferred certain powers and functions by the Constitution which cannot be reduced by statute (PHIL. CONST. art. IXB, C, and D) ● The Chairmen and members cannot be removed, except by impeachment (PHIL. CONST. art. XI, § 2) ● The Chairmen and the members are given a fairly long term of office of 7 years (PHIL. CONST. art. IX-B, C, and D, § 1, ¶ 2) ● The Chairmen and members may not be reappointed or appointed in an acting capacity ● The salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office (PHIL. CONST. art. IX, § 3; art. XVIII, § 117) ● The Commissions enjoy fiscal autonomy (PHIL. CONST. art. IX-A, § 5). ● Each Commission en banc may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (PHIL. CONST. art. IX, § 6) o In case of conflict between the Rules of Court and the Rules promulgated by the commission, the prevailing rule will depend on where the case is filed. If before the commission, the rule of the commission prevails, if before a regular court, the Rules of Court will prevail. o The power of the Supreme Court to review the rules of quasi-judicial agencies does not apply to Constitutional Commissions ● The Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity (PHIL. CONST. art. IX, § 2) ● The Commissions may appoint their own officials and employees in accordance with Civil Service Law (PHIL. CONST. art. IX, § 4).

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B. COMMON PROVISIONS Fiscal Autonomy Fiscal autonomy means that there is automatic and regular release as opposed to the fiscal autonomy of the judiciary, which includes the rule that appropriation may not be less than the previous year. Rotational Scheme of Appointments This scheme provides that the first appointees shall serve terms of 7, 5 and 3 years, respectively. “There appears to be near unanimity as to the purpose/s of the rotational system, as originally conceived, i.e., to place in the commission a new appointee at a fixed interval (every two years presently), thus preventing a four-year administration appointing more than one permanent and regular commissioner, or to borrow from Commissioner Monsod of the 1986 CONCOM, ‘to prevent one person (the President of the Philippines) from dominating the commissions’” (Funa v. Chairman of COA, G.R. No. 192791, April 24, 2012). The 2 conditions for the workability of the “Rotational Scheme” are: ● The terms of the first batch of commissioners should start on a common date; and ● Any vacancy due to the death, resignation or disability before the expiration of the term should be filled only for the unexpired balance of the term (Funa v. Chairman of COA, G.R. No. 192791, Apr. 24, 2012 citing Republic v. Imperial, G.R. No. L-8684, March 31, 1955).

Jurisprudence on Sec.1(2), Art.IX-D 1. Term of Appointment: The appointment of members of any of the three constitutional commissions, after the expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed term of seven (7) years; an appointment for a lesser period is void and unconstitutional. The appointing authority cannot validly shorten the full term of seven (7) years in case of the expiration of the term as this will result in the distortion of the rotational system prescribed by the Constitution. 2.

Rule on Appointment to Vacancies: Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment) shall only be for the unexpired portion of the term of the predecessor; such appointments cannot be less than the unexpired portion [as it will disrupt the staggering].

Members of Commission who served Full Term: Members of the Commission who were appointed for a full term of seven years and who served the entire period, are barred from reappointment to any position in the Commission. The first appointees in the Commission under the Constitution are also covered by the prohibition against reappointment.

Eligibility for Appointment as Chairman of Commissioner who resigns: A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment as Chairman for the unexpired portion of the term of the departing chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the length of service will not exceed seven (7) years and provided further that the vacancy in the position of Chairman resulted from death, resignation, disability or removal by impeachment. This is not a reappointment, but effectively a new appointment.

Rule on Temporary Appointments: Any member of the Commission cannot be appointed or designated in a temporary or acting capacity.

Where the Rotational Scheme Applies: ● Civil Service Commission (CSC) ● Commission on Elections (COMELEC) ● Commission on Audit (COA) ● Judicial and Bar Council (JBC) Promotional Appointment of Commissioner to Chairman Article IX-D, Sec. 1(2) does not prohibit a promotional appointment from commissioner to chairman as long as: (a) The commissioner has not served the full term of 7 years; and (b) The appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. (PHIL. CONST. art. IX-D, Sec. § 1(2)) (c) The promotional appointment must conform to the rotational plan or the staggering of terms in the commission membership.

. Term of Office of Each Commission Member The terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date,

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irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. This common appropriate starting point must be on February 02, 1987, the date of the adoption of the 1987 Constitution. (a) Term – the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. (b) Tenure – term during which the incumbent actually holds the office.

The term of office is not affected by the holdover. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. (Gaminde v. Commission on Audit, G.R. No. 140335, Dec. 13, 2000)

C. POWERS, FUNCTIONS, AND JURISDICTION CIVIL SERVICE COMMISSION The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs. (PHIL. CONST. art. IX-B, § 3) FUNCTIONS OF THE CSC 1. In the exercise of its powers to implement R.A. 6850 (granting civil service eligibility to employees under provisional or temporary status who have rendered seven years of efficient service), the CSC enjoys a wide latitude of discretion, and may not be compelled by mandamus (Torregoza v. Civil Service Commission, G.R. No. 101526, July 3, 1992). 2. Under the Administrative Code of 1987, the Civil Service Commission has the power to hear and decide administrative cases instituted before it directly or on appeal, including contested appointments. 3. The Commission has original jurisdiction to hear and decide a complaint for cheating in the Civil Service examinations committed

6. 7. 8. 9.

by government employees. (Cruz v. CSC, G.R. No. 144464, Nov. 27, 2001) It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure, that decisions of lower level officials (in cases involving personnel actions) be appealed to the agency head, then to the Civil Service Commission. (Olanda v.Bugayong G.R. No. 140917, Oct. 10, 2003). As the central personnel agency of the government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the Civil Service. a. It may revoke a certificate of eligibility motu proprio and consequently, the power to revoke one that has been given. b. Where the case simply involves the rechecking of examination papers and nothing more than a re-evaluation of documents already in the records of the CSC according to a standard answer key previously set by it, notice and hearing is not required. Instead, what will apply in such a case is the rule of res ipsa loquitur (Lazo v. Civil Service Commission, G.R. No. 108824, Sept. 14, 1994). Strengthen the merit and rewards system Integrate all human resources development programs for all levels and ranks Institutionalize a management climate conducive to public accountability Submit to the President and the Congress an annual report of personnel programs

Scope of the Civil Service Commission (BIGAS) 1. Branches 2. Instrumentalities 3. GOCCs with original charters 4. Agencies of the government 5. Subdivisions (PHIL. CONST. art. IX-B, § 2(1)) Classes of Service 1. Career Service: characterized by entrance (a) based on merit and fitness to be determined, as far as practicable, by competitive examinations; or (b) based on highly technical qualifications; with opportunity for advancement to higher career positions and security of tenure.

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Open Career Positions: where prior qualification in an appropriate examination is required Closed career positions: scientific or highly technical in nature; Career Executive Service: undersecretaries, bureau directors Career Officers: other than those belonging to the Career Executive Service who are appointed by the President (e.g. those in the foreign service) Positions in the AFP although governed by a different merit system Personnel of GOCCs with original charters Permanent laborers, whether skilled, semiskilled or unskilled

Non-Career Service: characterized by entrance on bases other than those of the usual tests utilized for the career service, tenure limited to a period specific by law, or which is co-terminus with that of the appointing authority or subject to his pleasure, or which is limited to the duration a. Elective officials, and their personal and confidential staff; b. Department heads and officials of Cabinet rank who hold office at the pleasure of the President, and their personal and confidential staff; c. Chairmen and members of commissions and bureaus with fixed terms; d. Contractual personnel; e. Emergency and seasonal personnel

The CSC cannot disallow an appointment to a position authorized by law but not included in the Index of Occupational Service. Although the CSC rules limit appointments to positions within the Index of Occupational Service, nevertheless, it is limited to the implementation of the laws it is tasked to enforce. RA 8494 exempted the Trade and Investment Corporation from conforming to the position classification; thus, the appointment is valid (Trade and Investment v. CSC, G.R. No. 182249, March 5, 2013). Appointments in the Civil Service General Rule: Made only according to merit and fitness to be determined, as far as practicable, by competitive examination

Exceptions: 1. Policy determining – Where the officer lays down principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subdivisions; e.g. department head. 2. Primarily confidential – Denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of state (De los Santos v. Mallare, G.R. No. L-3881, Aug. 31, 1950); OR one declared to be so by the President of the Philippines upon the recommendation of the CSC (Salazar v. Mathay, G.R. No. L-44061, Sept. 20, 1976) 3. Highly technical – Requires possession of technical skill or training in supreme degree. (De los Santos v. Mallare, supra) Types of Appointment 1. Permanent Status: A permanent appointment shall be issued to a person who meets all the requirements for the positions to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. 2. Temporary Status: In the absence of appropriate eligibles and when it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility; provided that such temporary appointment shall not exceed 12 months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. CSC may not terminate the employment of a civil servant The CSC may not terminate the employment of a civil servant. The CSC is not a co-manager or surrogate administrator of government offices and agencies. Its functions and authority are limited to approving or reviewing appointments to determine their compliance with requirements of the Civil Service Law. On its own, the Commission does not have the power to terminate employment or drop members from the rolls (UP and Torres v. CSC, G.R. No. 132860, April 3, 2001).

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Security of Tenure in Civil Service Law The concept of security of tenure in the Civil Service Law is embraced in Section 2(3), Article XI-B. “No officer or employee of the civil service shall be removed or suspended except for cause provided by law.” Classes of non-competitive positions ● Policy determining – where the officer lays down principal or fundamental guidelines or rules or formulates a method of action for government or any of its subdivisions. (Nachura, p. 418) ● Primarily confidential – when the nature of the office requires close intimacy between the appointee and appointing authority which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of state. ● Highly technical – it means something beyond the ordinary requirements of the profession. Hence, its determination is always a question of fact. (CSC v. Javier, G.R. No. 173264, Feb. 22, 2008) When Position Primarily Confidential A position is considered primarily confidential if the nature of the office requires close intimacy between the appointee and appointing authority which ensures freedom of intercourse without embarrassment or freedom from misgiving or betrayal of personal trust on confidential matters of state. The Guarantee of Security of Tenure for Primarily Confidential Positions They are covered by the guarantee of security of tenure but the termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but the expiration of the term of office. The CSC cannot take back-up files in the computer of an employee to determine if he was acting as counsel for employees with cases before the Commission when such employee has a reasonable expectation of privacy. In determining such, the following factors should be considered: (RAC) 1. The Employee’s Relationship to the item seized; 2. Whether the employee took Action to maintain his privacy in the item 3. Whether the item was in the immediate Control of the employee;

(Pollo v. Constantino-David, G.R. No. 181881, Oct. 18, 2011) Rule on Security of Tenure No officer or employee of the CSC shall be removed or suspended except for causes provided by law (PHIL. CONST. art. IX-B, § 2, ¶ 3). Security tenure is available even to positions which are considered highly technical, policy-determining and primarily confidential. Rule on Partisan Political Activity Joint Circular No.001 d. 2016 of the COMELEC and CSC reiterated art. IX, § 2(4) that no officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. However, the prohibition of engaging in partisan political activity does not apply to department secretaries. (Santos v. Yatco, G.R. No. L013932, Dec. 24, 1959) Right to Self-Organization The right to self-organization shall not be denied to government employees. But employees in the civil service may not resort to strikes, walkouts, and other temporary work stoppages, like workers in the private sector, to pressure the government to accede to their demands. Thus, their right to organize does not include the right to strike. (SSS v. CA, G.R. No. 85279, July 28, 1989) Prohibition against Additional and Double Compensation Rule: No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office or title of any kind from any foreign government. Note that pensions or gratuities shall not be considered as additional, double or indirect compensation. (PHIL. CONST. art. IX-B, § 8) a. Additional Compensation: when for one and the same office for which compensation has been fixed there is added to such fixed compensation an extra reward in the form of bonus and the like (BERNAS) b. Double Compensation: refers to two sets of compensation for two different offices held concurrently by one officer Can ex officio members receive per diems? No, ex officio members of a board are not entitled to per diems. (PEZA v COA, G.R. No. 189767, July 3, 2012)

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Jurisdiction Scope: All branches, subdivisions, instrumentalities, agencies of the government, including government owned and controlled corporations with original charters. ● ● ● ●

“With Original Charter” means that the GOCC was created by special law or by Congress If incorporated under the Corporation Code, it does not fall within the Civil Service and is not subject to the CSC jurisdiction If previously government-controlled, but is later privatized, it ceases to fall under CSC Jurisdiction is determined as of the time of filing the complaint.

COMMISSION ON ELECTIONS Enforce and administer ● All laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. e.g., COMELEC can enjoin construction of public works within 45 days of an election. ● The COMELEC can take cognizance of any question on the conduct of plebiscite such as to correct or check what the Board of Canvassers erroneously or fraudulently did during the canvassing, verify or ascertain the results of the plebiscite either through pre-proclamation case or through revision of ballots. The power of the COMELEC to ascertain the results of the plebiscite is implicit in the power to enforce all laws relative to the conduct of plebiscite. ● COMELEC can take jurisdiction over cases involving party identity and leadership or controversy as to leadership in the party. Such jurisdiction is sourced from the general power of the Commission to administer laws and rules involving the conduct of election. ● here is no need for a special legislation for the authorization of the conduct of recall elections because it is deemed included in the constitutional function of COMELEC, hence, contemplated in its budget in the GAA (Goh v. Bayron, G.R. No. 212584, Nov. 25, 2014). Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial and city officials

Election contests in the Sangguniang Kabataan (SK) are not under COMELEC jurisdiction but under the jurisdiction of the DILG. Exercise appellate jurisdiction over all contests involving: 1. Elective municipal officials decided by trial courts of general jurisdiction 2. Elective barangay officials decided by trial courts of limited jurisdiction a. A petition for certiorari questioning an interlocutory order of a trial court in an electoral protest was within the appellate jurisdiction of the COMELEC. The Court recognizes the COMELEC’s appellate jurisdiction over petitions for certiorari against all acts or omissions of courts in election cases (Bulilis v. Nuez, G.R. No. 195953, Aug. 9, 2011). b. Petition for certiorari questioning the decision of COMELEC division is premature as there is a plain and speedy remedy before COMELEC En Banc (Villarosa v. Festin, G.R. No. 212953, Aug. 5, 2014). 3. Decisions, final orders, or rulings of the COMELEC contests involving elective municipal and barangay offices shall be final, executory, and not appealable. a. Exception: May be appealed to the SC EN BANC on questions of law When the decision is brought on a special civil action for certiorari, prohibition, or mandamus under Rule 64 for grave abuse of discretion under Article IX-A Section 7. Issue writs of certiorari, prohibition and mandamus in the exercise of its appellate jurisdiction. Contempt powers COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions. It CANNOT exercise this in connection with its purely executive or ministerial functions. If it is a pre-proclamation controversy, COMELEC exercises quasi-judicial administrative powers.

the or

Its jurisdiction over ‘contests’ (after proclamation) is in exercise of its judicial functions.

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Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. These petitions are cognizable by the Regular Courts (MTC). Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. ● This power is NOT limited to the election period. ● Applies to both criminal and administrative cases. Register political parties, organizations, or coalitions, accredit citizens’ arms of the Commission on Elections. ● Political parties, etc. must present their platform or program of government. ● There should be sufficient publication. ● Groups that cannot be registered: 1. Religious denominations/ sects 2. Those that seek to achieve their goals through violence or unlawful means 3. Those that refuse to uphold and adhere to the Constitution 4. Those supported by any foreign government e.g. receipt of financial contributions related to elections File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting elections frauds, offenses and malpractices. COMELEC has exclusive jurisdiction to investigate and prosecute cases for violations of election laws. COMELEC can deputize prosecutors for this purpose. The actions of the prosecutors are the actions of the COMELEC. COMELEC can conduct preliminary investigations on election cases falling within its jurisdiction. Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall (PHIL. CONST. art. IX-C, § 2). The vote requirement for a valid COMELEC en Banc resolution is a majority of the votes of all members, or 4 votes. If the six members are evenly divided, the Commission on Elections should rehear the case (Sevilla v. COMELEC, G.R. 203833, March 19, 2013). Powers not given to COMELEC ● Decide questions involving the right to vote (placed under jurisdiction of courts); ● Transfer municipalities from one congressional district to another for the purpose of preserving proportionality. Cases decided by COMELEC subject to judicial review: Decisions or determinations by COMELEC in the exercise of its administrative (not quasi-judicial) power may be questioned in an ordinary civil action before the trial court. (Filipinas Engineering & Machine Shop v. Ferrer, G.R. No. L-31455, Feb. 28, 1985). ● The Court has no power to review on certiorari an interlocutory order or even a final resolution issued by a DIVISION of the COMELEC. The Court can only review a final decision or resolution of the COMELEC en banc (Cagas vs. COMELEC, G.R. No. 194139, Jan. 24, 2012). ● COMELEC has jurisdiction to determine the presence of “probable cause” in election cases. The finding of probable cause and the prosecution of election offenses rests in the COMELEC’s sound discretion (Baytan v. COMELEC, G.R. No. 153945, Feb. 4, 2003). ● The Chief State Prosecutor, who may have been designated by the COMELEC to prosecute a criminal action, merely derives his authority from the COMELEC. It is beyond his power to oppose the appeal made by COMELEC (Comelec v. Silva, G.R. No. 129417, Feb. 10, 1998). The COMELEC cannot itself, in the same cancellation (of certificate of candidacy) case, Page 115 of 479

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decide the qualification or lack thereof of the candidate if such issues are yet undecided or undetermined by the proper authority. ●

●

The provisions in Article IX-C, Section 2, enumerating the powers and functions of COMELEC does not have the same exactitude of the provisions of Art. VI, Sec. 17, which provides for the HRET and SET, or that of Art. VII, Sec. 4, which provides that the SC en banc shall be the sole judge of all contests regarding the Presidency and Vice-Presidency. These tribunals have jurisdiction over the question of qualifications of the President, VP, Senators, and the HoR. o Not one of the enumerated powers of the COMELEC as stated in Article IX-C, Sec. 2 of the Constitution grants the commission the power to determine the qualifications of a candidate. A COMELEC rule or resolution cannot supplant or vary the legislative enactments that distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds. (Fermin v. COMELEC, G.R. No. 179695, Dec. 18, 2008) Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 of the COMELEC rules do not allow authorization and do not constitute vestment of jurisdiction for the COMELEC to determine the qualification of a candidate. The facts of qualification must first be established in a prior proceeding before an authority vested with jurisdiction. Prior determination of qualification may be by statute, by an executive order or by a judgment of a competent court or tribunal. Lacking this prior determination, the certificate of candidacy cannot be cancelled or denied due course on ground of false representations regarding a candidate’s qualifications except if there exists self-evident facts of unquestioned or unquestionable veracity and judicial confessions. In this light the COMELEC cannot cancel Poe’s certificate of candidacy lacking prior determination of her qualifications by a competent body. (Poe-Llamanzares v. Comelec et al, G.R. Nos. 221697 & 221698-700, March 8, 2016)

The COMELEC’s power to motu proprio deny due course to a certificate of candidacy is subject to the candidate’s opportunity to be heard. Under Article II, Section 26 of the Constitution, “the state shall guarantee equal access to opportunities for public service.” (PHIL. CONST. art. II, § 26). This, however, does not guarantee a constitutional right to run for or hold public office. To run for public office is a mere privilege subject to limitations imposed by law, such as prohibition on nuisance candidates. To minimize logistical confusion caused by nuisance candidates, their COC’s may be denied due course by the COMELEC, through motu proprio or upon verified petition of an interested party, subject to an opportunity to be heard. (Timbol v Commission on Elections, G.R. No. 206004, Feb. 24, 2015) Regulation of Public Utilities, Media and Franchises The COMELEC may, during the election period, supervise or regulate the utilization of all franchises or permits for the operation of transportation and other public utilities, media, all grants, privileges and concessions, granted by the Government. (PHIL. CONST. art. IX-C, § 4) The aim is to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal rates for public information campaigns and forums among candidates. (PHIL. CONST. art. IX-C, § 4). Can print media be compelled to allocate free space? No. Print media may not be compelled to allocate free space to the Commission. Such would amount to a taking of property without just compensation. (Philippine Press Institute v. COMELEC, G.R. No 119694, May 22, 1995) Can the COMELEC regulate expressions made by private citizens? No. COMELEC had no legal basis to regulate expressions made by private citizens. As such, COMELEC’s order to remove the tarpaulin posted by the Diocese of Bacolod bearing the heading ‘Conscience Vote’ was unconstitutional. (Diocese of Bacolod v COMELEC, G.R. No 205728, Jan. 21, 2015) Are the functions under R.A. No. 8436 mandatory? Yes. The minimum functional capabilities enumerated under Section 6 of R.A. No. 8436, as amended, are mandatory. These functions constitute the most basic safeguards to ensure the transparency, credibility, fairness and accuracy of the upcoming elections. The law is clear. A “voter-

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verified paper audit trail” requires the following: (a) individual voters can verify whether the machines have been able to count their votes; and (b) that the verification at minimum should be paper based. There appears to be no room for further interpretation of a “voter-verified paper audit trail.” The paper audit trail cannot be considered the physical ballot, because there may be instances where the machine may translate the ballot differently, or the voter inadvertently spoils his or her ballot. (Bagumbayan-VNP Movement, Inc. vs COMELEC, G.R. No. 222731, March 8, 2016) Jurisdiction EXCLUSIVE ORIGINAL jurisdiction over all contests relating to the elections, returns, and qualifications of all elective REGIONAL, PROVINCIAL and CITY officials Election contests in the Sangguniang Kabataan (SK) are not under COMELEC jurisdiction but under the jurisdiction of the DILG. ● APPELLATE jurisdiction over all contests involving: o ELECTIVE MUNICIPAL officials decided by trial courts of general jurisdiction o ELECTIVE BARANGAY officials decided by trial courts of limited jurisdiction ● A petition for certiorari questioning an interlocutory order of a trial court in an electoral protest was within the appellate jurisdiction of the COMELEC. The Court recognizes the COMELEC’s appellate jurisdiction over petitions for certiorari against all acts or omissions of courts in election cases (Bulilis v. Nuez, G.R. No. 195953, Aug. 9, 2011). ● The COMELEC HAS jurisdiction over intraparty disputes. The ascertainment of the identity of a political party and its legitimate officers is a matter that is well within its authority. The COMELEC has the power to enforce and administer all laws and regulations relative to the conduct of an election. ● To resolve the issue, the COMELEC need only refer to the Party Constitution. It need not go as far as to resolve the root of the conflict between the parties. It need only resolve issues as may be necessary in the exercise of its enforcement powers.

COMMISSION ON AUDIT Examine, audit, and settle all accounts pertaining to: 1. Revenue and receipts of funds or property 2. Expenditures and uses of funds or property owned or held in trust by, or pertain to: a. The Government b. Any of its subdivisions, agencies or instrumentalities c. GOCCs with original charters. COA is endowed with enough latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds. In resolving cases brought before it on appeal, respondent COA is not required to limit its review only to the grounds relied upon by a government agency’s auditor with respect to disallowing certain disbursem*nts of public funds. In consonance with its general audit power, respondent COA is not merely legally permitted, but is also duty-bound to make its own assessment of the merits of the disallowed disbursem*nt and not simply restrict itself to reviewing the validity of the ground relied upon by the auditor of the government agency concerned. To hold otherwise would render COA’s vital constitutional power unduly limited and thereby useless and ineffective (Yap v. Commission on Audit, G.R. No.158562, April 23, 2010). Funds cannot be released without auditing in preaudit while in post-audit, the auditing is done only after the funds are released. (Maritime Industry Authority v. Commission on Audit, G.R. No. 185812, Jan. 13, 2015) COA is not required to limit its review only to the grounds relied upon by the auditor with respect to disallowing certain disbursem*nts of public funds. In consonance with its general audit power, COA is not merely legally permitted but is also duty-bound to make its own assessment of the merits of the disallowed disbursem*nt and not simply restrict to reviewing the validity of the ground relied upon by the auditor of the government agency concerned. To settle government accounts This means the power to settle liquidated accounts i.e. accounts which may be adjusted simply by an arithmetical process. It does not include the power to fix the amount of an unfixed or undetermined debt. To define the scope and techniques for its own auditing procedures

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To promulgate accounting and auditing rules including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures; Conduct post-audit with respect to the following: 1. Constitutional bodies, commissions, and offices granted fiscal autonomy 2. Autonomous state colleges and universities 3. GOCCs and their subsidiaries incorporated under the Corporation Code 4. Non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law, through the granting institution, to submit to such audit. 5. To decide administrative cases involving expenditure of public funds (PHIL. CONST. art. IX-D, § 2) If COA finds the internal control system of audited agencies inadequate, COA may adopt measures, including temporary or special pre-audit, as necessary to correct deficiencies. Keep the general accounts of the government Preserve vouchers and other supporting papers pertaining thereto for such period as may be provided by law The functions of COA can be classified as: 1. Examining and auditing all forms of government revenues and expenditures 2. Settling government accounts 3. Promulgating accounting and auditing rules 4. Deciding administrative cases involving expenditures of public funds. COA’s non-exclusive power to audit The COA does not have the exclusive power to examine and audit government entities. As such, public corporations under COA jurisdiction may employ private auditors. However, COA’s findings and conclusions necessarily prevail over those of private auditors, at least insofar as government agencies and officials are concerned (DBP v COA, G.R. No. 88435, Jan. 16, 2002) Thus, private auditors can be hired but if there is a conflict, COA audit prevails. Prosecutors Power to Review Accounts Settled by COA Prosecutors may still review accounts already settled and approved by COA for the purpose of

determining possible criminal liability. This is because COA’s interest in such accounts is merely administrative. Exclusive Authority to Define Scope of Audit and Examination Pursuant to its mandate as the guardians of public funds, the COA has the exclusive authority to define the scope of its audit and examination, establish the techniques and methods for such review and promulgate accounting and auditing rules and regulations (Veloso v. Commission on Audit, G.R. No. 193677, Sept. 6, 2011). What are Considered Private Corporations Note that not all corporations, which are not government owned or controlled, are ipso facto to be considered private corporations as there exists another distinct class of corporations or chartered institutions which are otherwise known as “public corporations.” These corporations are treated by law as agencies or instrumentalities of the government. As presently constituted, the BSP is a public corporation created by law for a public purpose, and being such the funds of the BSP fall under the jurisdiction of the Commission on Audit. (Boy Scouts of the Philippines v. COA, G.R. No. 177131, June 7, 2011) Complete Discretion afforded to COA COA is generally accorded complete discretion in the exercise of its constitutional duty and responsibility to examine and audit expenditures of public funds. Only in instances when COA acts without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction shall the Court interfere. Thus, COA can disallow TESDA from paying a healthcare allowance to their employees. (TESDA v. COA, G.R. No. 196418, Feb. 10, 2015) Jurisdiction COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds. In resolving cases brought before it on appeal, respondent COA is not required to limit its review only to the grounds relied upon by a government agency’s auditor with respect to disallowing certain disbursem*nts of public funds. In consonance with its general audit power, respondent COA is not merely legally permitted, but is also duty-bound to make its own assessment of the merits of the disallowed disbursem*nt and not simply restrict itself to reviewing the validity of the ground relied upon by the auditor of the government agency concerned. To hold otherwise would render COA’s vital

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constitutional power unduly limited and thereby useless and ineffective (Yap v. Commission on Audit, G.R. No.158562, April 23, 2010). COA has authority not just over accountable officers but also over other officers who perform functions related to accounting such as verification of evaluations and computation of fees collectible, and the adoption of internal rules of control. COA has the authority to define the scope of its audit and examination, establish the techniques and methods for such review and promulgate accounting and auditing rules and regulations (Veloso v. Commission on Audit, G.R. No. 193677, Sept. 6, 2011). The Boy Scout of the Philippines (“BSP”) is a government-owned and controlled corporation under the jurisdiction of COA. The BSP Charter (Commonwealth Act 111), entitled “An Act to Create a Public Corporation to be Known as the Boy Scouts of the Philippines, and to Define its Powers and Purposes” created the BSP as a “public corporation” (Boy Scouts of the Philippines v. COA, G.R. No. 177131, June 7, 2011) The Manila Economic and Cultural Office (“MECO”) is subject to audit by the COA. The MECO is sui generis. It was established when the Philippines severed diplomatic relations with Taiwan upon recognition of China. None of its members are government officials. It is not a GOCC nor an instrumentality. Its functions are of a kind that would otherwise be performed by the diplomatic and consular offices of the Philippines. Nevertheless, the consular fees collected by the MECO may be audited by the COA. (Funa v. Manila Economic and Cultural Office, G.R. 193462, Feb. 4, 2014) Water districts are within the coverage of the COA. A water district is a GOCC with a special charter since it is created pursuant to a special law. Thus, COA has the authority to investigate whether directors, officials or employees of GOCCs receiving allowances and bonuses are entitled to such benefits under applicable laws. (Feliciano v. Commission on Audit, G.R. 147402, Jan. 14, 2004) 1.

Of the Commission in General: No law shall be passed exempting any entity of the Government, or any investment of public funds, from the jurisdiction of the COA (PHIL. CONST. art. IX-D, § 3) Over GOCCs: The Constitution vests in the COA audit jurisdiction over ‘governmentowned and controlled corporations with original charters, as well as government owned or controlled corporations without

original charters’. GOCCs with original charters are subject to COA pre-audit, while GOCCs without original charters are subject to COA post-audit. The determining factor of COA’s audit jurisdiction is government ownership or control of the corporation. Over LGUs: LGUs, through granted local fiscal autonomy are still within the audit jurisdiction of the COA (Veloso v. Commission on Audit, G.R. No. 193677, Sept. 6, 2011).

COA authority in Public Bidding COA has the power to determine the meaning of ‘public bidding’ and what constitutes failure of the same when regulations require public bidding for the sale of government property.

D. COMPOSITION AND QUALIFICATION OF MEMBERS CIVIL SERVICE COMMISSION Composition A Chairman, and 2 Commissioners Qualifications (PHIL. CONST., art. IX-B, § 1(1)) 1. Natural-born citizens of the Philippines; 2. At the time of their appointment, at least 35 years of age 3. With proven capacity for public administration; and 4. Must not have been candidates for any elective position in the election immediately preceding their appointment Disqualifications 1. No candidate who has lost in any election shall, within 1 year after such election, be appointed to any office in the Government of any GOCC or in any of their subsidiaries. (PHIL. CONST. Art. IX-B, §6) 2. No elective official shall be eligible for appoint or designation in any capacity to any public office or position during his tenure. (PHIL. CONST. Art. IX-B, § 7, ¶ 1) Exceptions: a. the Vice President may be appointed as member of the Cabinet b. Member of the Congress is designated to sit in the JBC 3. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality Page 119 of 479

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thereof including GOCCs or their subsidiaries. (PHIL. CONST. art. IX-B, § 7, ¶ 2) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign, (PHIL. CONST. art.IX-B, § 2, ¶ 4)

Appointment and Term Appointed by the President with the consent of the Commission on Appointments. The term is 7 years, without reappointment. The prohibition of reappointment applies even if the Commissioner has served for less than 7 years. (BERNAS) Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity. (PHIL. CONST., art. IXB, § 1, ¶ 2)

COMMISSION ON ELECTIONS Composition One Chairman and 6 Commissioners Qualifications (NTCIM) 1. Natural-born citizen; 2. At least 35 years old at the time of appointment; 3. College degree holder; 4. Not a candidate in any election Immediately preceding the appointment; and 5. Majority, including the chairman, must be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years (PHIL. CONST., art. IX-C, § 1, ¶ 1). Appointment and Term Appointed by the President with the consent of the commission of Appointment, for a term of 7 years, without reappointment. (PHIL. CONST. art. IX-C, § 1, ¶ 2) If the appointment was ad interim, a subsequent renewal of the appointment does not violate the prohibition on reappointment because no previous appointment was confirmed by the Commission on Appointment. Further, the total term of both appointments must not exceed the 7-year limit. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)

COMMISSION ON AUDIT Composition 1 Chairman, 2 Commissioners

Qualifications 1. Natural born citizen; 2. At least 35 years old at the time of appointment 3. CPAs with at least 10 years auditing experience or members of the Bar with at least 10 years of experience in the practice of law; at no time shall all members belong to the same profession, and 4. Not a candidate in any election immediately preceding appointment (PHIL. CONST. art. IX-D, § 1, ¶ 1) Appointment and Term Appointed by the President with the consent of the Commission of Appointments for a term of 7 years, without reappointment. Appointment to any vacancy shall only be for the unexpired portion of the term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity. (PHIL. CONST. art. IX-D, § 1, ¶ 2)

E. PROHIBITED OFFICES AND INTERESTS Prohibited Offices and Interests (BEEH) No member of a Constitutional Commission shall, during his tenure: ● Be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities ● Engage in the Practice of any profession; ● Engage in the Active management and control of any business which in any way may be affected by the functions of his office; and ● Hold any other Office or Employment.

F. JUDICIAL REVIEW OF FINAL ORDERS, RESOLUTIONS, AND DECISIONS How Commission decides Matters or Cases Each commission shall decide matters or cases by a majority vote of all its members within 60 days from submission. The rule on majority vote shall apply both in a division or en banc. Who constitutes ‘majority’ This provision is clear when it says that the voting should be a majority vote of all its members and not

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only of those who participated in the deliberation and voted therein. Effect of Resignation of a Commissioner When a commissioner resigns, it does not automatically invalidate the decision. So long as the required majority of the commission is still achieved despite the withdrawal of the vote of the one who resigned, the decision shall stand. ● Exception: COMELEC may sit en banc or in 2 divisions. How Election cases are decided on Election cases, including pre-proclamation controversies are decided in division, with motions for reconsideration filed to the COMELEC en banc. Majority Decision of a Division A majority decision decided by a division of the COMELEC is valid. No One member can decide a case for the Commission As collegial bodies, each commission must act as one, and no one member can decide a case for the entire commission. (e.g. Chairman cannot ratify a decision that would otherwise have been void.)

amount exceeding 30 days’ salary, demotion, transfer, removal, or dismissal from office shall be appealable to the CSC. • Decision may be executed pending appeal • Decision of CSC may be brought on appeal to the CA under Rule 43 • Decision of CA may be brought on appeal to the SC under Rule 45. • Exoneration of officers or employees from administrative charges does not bar appeal. The CSC is the proper party to bring the appeal (PD 807, §37- 39); (CSC v. Dacoycoy, G.R. No. 135805, April 29, 1999). Enforcement - It has been held that the CSC can issue a writ of execution to enforce judgments, which is deemed final. ————- end of topic ————-

1. Rendered in the exercise of quasijudicial functions ● ● ● ●

●

Decisions, orders or rulings of the COMELEC or the COA may be brought on certiorari to the SC under Rule 64. Decisions, orders or ruling of the CSC should be appealed to the CA under Rule 43. Period for appeals is 30 days from receipt of a copy of the decision, order, or ruling. It is however a requirement, that a motion for reconsideration must first be filed before the commission en banc, before resort to court is taken. The certiorari jurisdiction of the court is limited only to cases and matters rendered by a commission in the exercise of its adjudicatory power, or those relating to an election dispute and not to cases and matters purely administrative or executive in nature.

2. Rendered in the Exercise of Administrative Functions Administrative disciplinary cases involving penalty of suspension for more than 30 days, or fine in an

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I. CITIZENSHIP TOPIC OUTLINE UNDER THE SYLLABUS A. WHO ARE FILIPINOS B. MODES OF ACQUIRING CITIZENSHIP C. LOSS AND RE-ACQUISITION OF PHILIPPINE CITIZENSHIP D. DUAL CITIZENSHIP AND DUAL ALLEGIANCE E. FOUNDLINGS 1. Foundling Recognition and Protection Act (RA 11767)

NOTE: This portion may still be subject to updates. A supplementary reviewer shall be issued, if necessary.

CITIZENSHIP What is Citizenship Citizenship is a legal device denoting political affiliation. (David v. Senate Electoral Tribunal, G.R. No. 221538, September 20, 2016.) It is one's "personal and … permanent membership in a political community. … The core of citizenship is the capacity to enjoy political rights, that is, the right to participate in government principally through the right to vote, the right to hold public office[,] and the right to petition the government for redress of grievance.” (Go v. Republic of the Philippines, G.R. 202809, July 2, 2014, citing Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009)

A. WHO ARE FILIPINOS The following are citizens of the Philippines: (a) Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution. (b) Those whose fathers or mothers are citizens of the Philippines. (c) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority. (d) Those who are naturalized in accordance with law. (PHIL CONST., art. IV, § 1) Citizens at the time of adoption of the 1987 Constitution Philippine citizens at the time of the adoption of the 1987 Constitution were those who were citizens under the 1973 Constitution. In turn, citizens of the Philippines at the time of adopting the 1973 Constitution were citizens under the 1935 Constitution. Thus, what determines citizenship is the Constitution in effect at the time of a person’s birth. Children of Filipino fathers or mothers (Jus Sanguinis) If a child is born under the 1973 or 1987 Constitution and either his father or mother is a Filipino citizen at the time the child is born, the child is a Filipino citizen no matter where he may be born. This is how the principle of jus sanguinis is applied in the 1987 Constitution. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Illegitimate Child of a Filipina Mother The citizenship of an illegitimate child of a Filipina mother is Filipino. This is true whether the child is

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born under the 1935 or the 1973 or 1987 Constitution. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

Cabiling v. Commissioner Fernandez Jr., G.R. No. 183133, July 26, 2010, Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

Illegitimate Child of a Foreign Mother • If the father is unknown → Follow the mother's citizenship. • If the father is known and is Filipino → The illegitimate child is considered Filipino after proving the paternity. (Tecson v. COMELEC, G.R. No. 161434, March 3, 2004)

Kinds of citizenship (a) Natural born citizens (b) Naturalized citizens

Election of Philippine Citizenship Those born under the 1935 Constitution whose mothers were Philippine citizens (at the time at least of their marriage to an alien father) may elect Philippine citizenship. The Court interprets Section 1, Par. 3 of Article IV of the Philippine Constitution as applying not only to those who elect Philippine citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected citizenship before that date. The provision in Paragraph 3 was intended to correct an unfair position which discriminates against Filipino women. (Co v. House of Representatives Electoral Tribunal, G.R. Nos. 92191-92 & 92202-03, July 30, 1991.) (a) Prior to the 1973 Constitution - If a Filipina married an alien, she loses her Filipino citizenship. Hence, her child would have to elect Filipino citizenship upon reaching the age of majority. (b) Under the 1973 Constitution - Children born of Filipino mothers were already considered Filipinos. (c) Therefore, the provision on election of citizenship under the 1987 Constitution only applies to those persons who were born under the 1935 Constitution. In order for the children to elect Filipino citizenship, the mother must have been Filipinos at the time of their marriage (Cu v. Republic, G.R. No. L-3018, July 18, 1951; Villahermosa v. Commissioner of Immigration, G.R. No. L-1663, Mar. 31, 1948) The election must be made within a reasonable period after reaching the age of majority. The phrase "reasonable time" has been interpreted to mean that the elections should be made within three (3) years from reaching the age of majority. (Cuenco v. Sec. of Justice, G.R. No. L-18069, May 26, 1962;

Who are Natural Born Citizens (a) Those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship (Phil Const., art. IV, § 2) “Having to perform an act” means that the act must be personally done by the citizen. The process is certainly not analogous to naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under the 1935 Constitution, which is an act to perfect it. (Poe-Llamanzares v. COMELEC, G.R. No. 221697, March 8, 2016) (a) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority (Phil Const., art. IV, § 2) (b) Those who were repatriated and were originally natural born citizens (Bengzon v. HRET, G.R. No. 142840, May 7, 2001) Who are Naturalized Citizens Foreigners adopted into the political body of a nation and clothed with the privileges of a citizen. (So v. Republic, G.R. No. 170603, Jan. 29, 2007) Natural Born Citizens v. Naturalized Citizens In general, the law cannot treat Natural Born Citizens and those who were naturalized differently except in the instances where the Constitution itself makes a distinction. Otherwise there would be a violation of the equal protection clause. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009) Natural Born Citizens & Public Office Under the Constitution, the following must be natural-born citizens: 1. President (PHIL CONST., art. VII, § 2) 2. Vice-President (PHIL CONST., art. VII, § 3) 3. Members of Congress (PHIL CONST., art. VI §

3 & 6)

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4. Justices of SC and lower collegiate courts

(PHIL CONST., art. VIII, § 7(1)) 5. Ombudsman and his deputies (PHIL CONST., art. XI, § 8) 6. Members of Constitutional Commissions: ● CSC (PHIL CONST., art. IX-B, §1(1)) ● COMELEC (PHIL CONST., art. IX-C, §1) ● COA (PHIL CONST., art. IX-D, § 1(1)) ● Members of the central monetary authority (PHIL CONST., art. XII, § 20) ● Members of the Commission on Human Rights (PHIL CONST., art. XIII, § 17(2)) Former Filipino Citizens Running for Public Office Natural-born Filipinos who have been naturalized elsewhere and wish to run for elective public office must comply with all of the following requirements: 1. Taking the oath of allegiance to the Republic. This effects the retention or reacquisition of one's status as a natural-born Filipino. This also enables the enjoyment of full civil and political rights, subject to all attendant liabilities and responsibilities under existing laws, provided the solemnities recited in Section 5 of Republic Act No. 9225 are satisfied. 2. Making a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. This, along with satisfying the other qualification requirements under relevant laws, makes one eligible for elective public office.

B. MODES OF ACQUIRING CITIZENSHIP (a) Jus sanguinis - acquisition of citizenship on the basis of blood relationship (b) Jus soli - acquisition of citizenship on the basis of place of birth (c) Naturalization - the legal act of adopting an alien and clothing him with the privilege of a native born-citizen (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009) Two ways of acquiring citizenship in the Philippines Basic Philippine law follows the rule of jus sanguinis and provides for naturalization. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

Naturalization is a mode for both acquisition (governed by CA 473) and reacquisition (governed by CA 63) of Philippine citizenship.

NATURALIZATION What is naturalization Naturalization signifies the act of formally adopting a foreigner into the political body of a nation by clothing him or her with the privileges of a citizen. (So v. Republic, G.R. No. 170603, Jan. 29, 2007) Three Modes of Naturalization (a) Administrative Naturalization (R.A. No. 9139) (b) Judicial Naturalization (C.A. No. 473)

(c) Legislative Naturalization in the form of a law enacted by Congress granting Philippine citizenship to an alien C.A. No. 473 v. R.A. No. 9139 C.A. No. 473 and R.A. No. 9139 are separate and distinct laws—the former covers all aliens regardless of class while the latter covers nativeborn aliens who lived here in the Philippines all their lives, who never saw any other country and all along thought that they were Filipinos; who have demonstrated love and loyalty to the Philippines and affinity to the customs and traditions. (So v. Republic, G.R. No. 170603, Jan. 29, 2007)

a. C.A. No. 473 Qualifications 1. Not less than twenty-one years of age on the day of the hearing of the petition; 2. Resided in the Philippines for a continuous period of 10 years or more; 3. Of good moral character; believes in the principles underlying the Philippine Constitution; conducted himself in a proper and irreproachable manner during the entire period of his residence towards the government and community 4. Must own real estate in the Philippines worth P5,000 or more OR must have lucrative trade, profession, or lawful occupation; 5. Able to speak or write English or Spanish or anyone of the principal languages; and 6. Enrolled his minor children of school age in any of the recognized schools where Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him. (C.A. 473, § 2) Page 125 of 479

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Special Qualifications (ANY will result to reduction of the 10-year period of continuous residency requirement to 5 years under no. 2 above) 1. Having honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions thereof; 2. Established a new industry or introduced a useful invention in the Philippines; 3. Married to a Filipino woman; 4. Engaged as a teacher in the Philippines in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race, in any of the branches of education or industry for a period of 2 years or more; or 5. Born in the Philippines (C.A. 473, § 3) Denaturalization: Cancellation of Certificate of Naturalization a. b.

c. d.

If it is shown that said naturalization certificate was obtained fraudulently or illegally. If the person naturalized shall, within the five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence there: Provided, That the fact of the person naturalized remaining for more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered as prima facie evidence of his intention of taking up his permanent residence in the same. If the petition was made on an invalid declaration of intention. If it is shown that the minor children of the person naturalized failed to graduate from a public or private high schools recognized by the Office of Private Education of the Philippines, where Philippine history, government and civics are taught as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree cancelling the naturalization certificate shall be forwarded by the clerk of the Court to the Department of the Interior and the Bureau of Justice. If it is shown that the naturalized citizen has allowed himself to be used as a dummy requiring Philippine citizenship as a requisite for

the exercise, use or enjoyment of a right, franchise or privilege (C.A. No. 473, § 18)

b. R.A. No. 9139 Qualifications 1. The applicant must be born in the Philippines and residing therein since birth; 2. The applicant must not be less than eighteen (18) years of age, at the time of filing of his/her petition; 3. The applicant must be of good moral character and believes in the underlying principles of the Constitution, and must have conducted himself/herself in a proper and irreproachable manner during his/her entire period of residence in the Philippines in his relation with the duly constituted government as well as with the community in which he/she is living; 4. The applicant must have received his/her primary and secondary education in any public school or private educational institution dully recognized by the Department of Education, Culture and Sports, where Philippine history, government and civics are taught and prescribed as part of the school curriculum and where enrollment is not limited to any race or nationality: Provided, That should he/she have minor children of school age, he/she must have enrolled them in similar schools; 5. The applicant must have a known trade, business, profession or lawful occupation, from which he/she derives income sufficient for his/her support and if he/she is married and/or has dependents, also that of his/her family: Provided, however, That this shall not apply to applicants who are college degree holders but are unable to practice their profession because they are disqualified to do so by reason of their citizenship; 6. The applicant must be able to read, write and speak Filipino or any of the dialects of the Philippines; and 7. The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipino people (R.A No. 9139, § 3) Disqualifications a. Those opposed to organized government or affiliated with any association of group of persons who uphold and teach doctrines opposing all organized governments;

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Those defending or teaching the necessity of or propriety of violence, personal assault or assassination for the success or predominance of their ideas; Polygamists or believers in the practice of polygamy; Those convicted of crimes involving moral turpitude; Those suffering from mental alienation or incurable contagious diseases; Those who, during the period of their residence in the Philippines, have not mingled socially with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos; Citizens or subjects with whom the Philippines is at war, during the period of such war; and Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized citizens or subjects thereof. (R.A. No. 9139, § 4)

c. Effects of Judicial Naturalization Effects a. The legitimate minor children of the naturalized father become Filipinos as well. b. The wife also becomes a Filipino citizen, provided that she does not have any disqualification which would bar her from being naturalized. (C.A. No. 473, § 15, Tuang v. Galang, G.R. No. L-18775, Nov. 30, 1963) Naturalization & Res Judicata A naturalization proceeding not being a judicial adversary proceeding, the decision rendered therein is not res judicata as to any of the reasons or matters which would support a judgment cancelling the certificate of naturalization for illegal or fraudulent procurement (Republic v. Go Bon Lee, G.R. No. L-11499, Apr. 29, 1966) Pursuant to P.D. No. 836 and 923, naturalization extends to the alien wife and minor children of the person naturalized upon the wife's showing that she does not suffer from any of the disqualifications under Letter of Instructions No. 270, and that she and her minor children reside permanently in the Philippines at the time of her husband's naturalization. In other words, the only persons to undergo the proceeding before the Special Committee on Naturalization will only be the person

naturalized and his wife. The minor children, in the words of Letter of Presidential Decree No. 836, follow the acquired Filipino citizenship of their mother. (Republic v. Lao, G.R. Nos. 205218 & 207075, Feb. 10, 2020) When Res Judicata Applies Res judicata may only be applied in cases of citizenship when the following concur: 1. A person's citizenship must be raised as a material issue in a controversy where said person is a party; 2. The Solicitor General or his authorized representative took active part in the resolution thereof; The finding on citizenship is affirmed by the Supreme Court. (Go v. Bureau of Immigration and Deportation, G.R. no. 191810, Jun. 22, 2015)

C. LOSS AND REACQUISITION OF CITIZENSHIP Philippine citizenship may be lost or reacquired in the manner provided by law (PHIL CONST., art. IV, § 3) Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it. (PHIL CONST., art. IV, § 4)

a. Losing Citizenship a. b. c. d.

f. g.

Naturalization in a foreign country (C.A. 63, § 1(1)) Express renunciation or expatriation (CA 63, §1(2) Taking an oath of allegiance to another country upon reaching the age of majority; Marriage by a Filipino woman to an alien, if by the laws of her husband’s country, she becomes a citizen thereof. Accepting a commission and serving in the armed forces of another country, unless there is an offensive/defensive pact with the country, or it maintains armed forces in RP with RP’s consent; Denaturalization; Being found by final judgment to be a deserter of the AFP

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b. Reacquiring Citizenship Citizenship may be Reacquired by: a. Repatriation b. Naturalization c. Legislative Act

REPATRIATION Repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. (Bengzon v. HRET, G.R. No. 142840, May 7, 2001) Natural-born Filipinos who are deemed to have lost their citizenship may re-acquire the same via repatriation proceedings. This involves taking an oath of allegiance and filing the same with the civil registry. (C.A. No. 63, sec. 4) Repatriation Not a Matter of Right Repatriation is not a matter of right, but it is a privilege granted by the State. The State has the power to prescribe by law the qualifications, procedure, and requirements for repatriation. It has the power to determine if an applicant for repatriation meets the requirements of the law for it is an inherent power of the State to choose who will be its citizens, and who can reacquire citizenship once it is lost. (Tabasa v. CA, G.R. No. 125793, Aug. 29, 2006) As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided. He would not even need to file a petition in court. (Bengson III v. HRET, G.R. No.142840, May 7, 2001) Who May be Repatriated: a. Filipino women who have lost their Philippine citizenship by marriage to aliens b. Natural-born Filipinos who have lost their Philippine citizenship, including their minor children, on account of political or economic necessity (R.A. No. 8171, § 1) How is Repatriation Effected 1. By taking the necessary oath of allegiance to the Republic of the Philippines.

Registration in the proper civil registry and in the Bureau of Immigration.

The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen (R.A. No. 8171, § 2) Who Cannot be Repatriated (OVM2) a. Person Opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; b. Person defending or teaching the necessity or propriety of Violence, personal assault, or association for the predominance of their ideas; c. Person convicted of crimes involving Moral turpitude; or d. Person suffering from Mental alienation or incurable contagious diseases. (R.A. No. 8171, § 1) Effective Date of Repatriation The effective date is the date of application for repatriation not the date when repatriation was approved (Lee v. Commission on Elections & Frivaldo, G.R. No. 120295, June 28, 1996) Repatriation under R.A. No. 9225 Citizens who lost their citizenship by reason of their naturalization as citizens of a foreign country are deemed to have reacquired their Philippine citizenship upon taking the oath of allegiance. This reacquisition works to restore natural-born status as though it was never lost at all. Reacquisition v. Retention Natural-born Filipinos who have lost their citizenship by naturalization in a foreign country shall re-acquire their Philippine citizenship upon taking the oath of allegiance to the Republic of the Philippines. Natural-born Filipinos who became foreign citizens after R.A. 9225 took effect, shall retain their Philippine citizenship upon taking the same oath. The taking of oath of allegiance is required for both categories of natural-born Filipino citizens who became citizens of a foreign country. (David v. Agbay, G.R. No, 199113, March 18, 2015) Repatriation and Domicile To reacquire domicile he must provide proof of intent to stay in the Philippines. After he does that, his occasional absence from the recovered domicile does not have the effect of removing him from the

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domicile for as long as he manifests animus manendi et revertendi. The domicile is not established strictly from the time that a person was repatriated under R.A. No. 9225. The Court said that other evidence may be admitted to determine the time that domicile is established. Also, issue of residence could be decided particularly on the facts-of-the-case basis, as what would a series of jurisprudence would also dictate. Hence, domicile cannot strictly be established only from a person’s repatriation. (Poe-Llamanzares v. Comelec et al., G.R. Nos. 221697 & 221698-700, March 8, 2016)

D. DUAL CITIZENSHIP AND DUAL ALLEGIANCE Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. (PHIL CONST., art. 4, § 5) Dual Citizenship Allows a person who acquires foreign citizenship to simultaneously enjoy the rights he previously held as a Filipino citizen. This is completely voluntary, and results in the application of different laws of two or more states to a dual citizen. Dual Allegiance a. Aliens who are naturalized as Filipinos but remain loyal to their country of origin; b. Public officers who, while serving the government, seek citizenship in another country. Dual Citizenship vs. Dual Allegiance Dual citizenship arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states, as is the case of respondent. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition. (Mercado v. Manzano, G.R. No. 135083, May 26, 1999) Prohibition against Dual Allegiance The constitution prohibits dual allegiance not dual citizenship. Dual allegiance arising from e.g., mixed marriages or birth in foreign soil was seen as more insidious than dual citizenship.

To the extent, however, that dual citizenship also imports dual allegiance, then it must also be "dealt with by law." In other words, the Constitution leaves the disposition of the problem of dual citizenship and dual allegiance to ordinary legislation. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. (Mercado v. Manzano, G.R. No. 135083, May 26, 1999) R.A. 9225 R.A. 9225 provides that a Filipino who has previously renounced his Filipino citizenship can reacquire it without renouncing his foreign citizenship. Likewise, a Filipino who acquires foreign citizenship after the effectivity of R.A. 9225 retains his Filipino citizenship. R.A. 9225 is a law about dual citizenship not dual allegiance. (AASJS v. Datumanong, G.R. No. 160869, May 11, 2007) R.A. 9225, however, requires that those who acquired dual citizenship must specifically renounce foreign citizenship upon filing of candidacy. (R.A. 9225 § 5[2]) The continued use of foreign passport render the renunciation of foreign citizenship nugatory. The renunciation of foreign citizenship must be complete and unequivocal. The requirement that the renunciation must be made through an oath emphasizes the solemn duty of the one making the oath of renunciation to remain true to what he has sworn to. Allowing the subsequent use of a foreign passport because it is convenient for the person to do so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a mere ceremonial formality. (Maquiling v. COMELEC, G.R. No. 195649, April 16, 2013) Derivative Citizenship The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines. (R.A. 9225 § 4)

E. FOUNDLINGS Natural Born Citizens As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution’s Page 129 of 479

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enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. No such intent or language in the Constitution permits discrimination against foundlings. On the contrary, all three Constitutions (1935, 1973, 1987) guarantee the basic right to equal protection of the laws. All exhort the State to render social justice. Domestic laws on adoption also support the principle that foundlings are Filipinos. Foundlings are likewise citizens under international law: ● A foundling is presumed to have the "nationality of the country of birth”. (Article 14, 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws) ● A foundling is presumed born of citizens of the country where he is found. (Article 2, 1961 UN Convention on the Reduction of Statelessness.) (Poe-Llamanzares v. COMELEC, G.R. Nos. 221697 & 221698700, March 8, 2016)

circ*mstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development." Consistent with this statute is our ratification of the United Nations Convention on the Rights of the Child. This specifically requires the states-parties' protection of: first, children's rights to immediate registration and nationality after birth; second, against statelessness; and third, against discrimination on account of their birth status. The Philippines likewise ratified the 1966 International Covenant on Civil and Political Rights. As with the Convention on the Rights of the Child, this treaty requires that children be allowed immediate registration after birth and to acquire a nationality. (David v. SET, G.R. No. 221538, Sept. 20, 2016)

————- end of topic ————-

The conclusion that Petitioner is a natural-born Filipina is based on fair and reasonable reading of constitutional provisions, statutes, and international norms having the effect of law, and on the evidence presented before the COMELEC. (PoeLlamanzares v. COMELEC, G.R. No. 221697, 221698-70, March 6, 2018; Leonen, J., Concurring Opinion) The words of our most fundamental law cannot be read so as to callously exclude all foundlings from public service. When the names of the parents of a foundling cannot be discovered despite a diligent search, but sufficient evidence is presented to sustain a reasonable inference that satisfies the quantum of proof required to conclude that at least one or both of his or her parents is filipino, then this should be sufficient to establish that he or she is a natural-born citizen. (David v. SET, G.R. No. 221538, Sept. 20, 2016) Treaties & Status of Foundlings Congress has enacted statutes founded on the premise that foundlings are Filipino citizens at birth. It has adopted mechanisms to effect the constitutional mandate to protect children. Likewise, the Senate has ratified treaties that put this mandate into effect. Section 4(b) of the Republic Act No. 9344 defines the "best interest of the child" as the "totality of the

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II. BILL OF RIGHTS TOPIC OUTLINE UNDER THE SYLLABUS A. PRIVATE ACTS AND THE BILL OF RIGHTS B. DUE PROCESS 1. Procedural and substantive 2. Void-for-vagueness 3. Judicial and administrative due process C. EQUAL PROTECTION 1. Requisites for valid classification 2. Standards of Judicial Review a. Rational Basis Test b. Strict Scrutiny Test c. Intermediate Scrutiny Test D. ARRESTS, SEARCHES AND SEIZURES 1. Requisites of a valid warrant a. Arrest Warrant b. Search Warrant 2. Warrantless arrests and detention 3. Warrantless searches 4. Administrative Arrests 5. Exclusionary rule E. PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE 1. Private and public communications 2. When Intrusion is Allowed 3. Exclusionary rule F. FREEDOM OF SPEECH AND EXPRESSION 1. Prior restraint and subsequent punishment 2. Content-based and content-neutral regulations 3. Facial challenges and overbreadth doctrine 4. Tests to determine the validity of governmental regulation 5. State regulation of different types of mass media 6. Commercial Speech 7. Unprotected speech G. FREEDOM OF RELIGION 1. Non-establishment and free exercise clauses 2. Benevolent neutrality and conscientious objectors 3. Tests to determine the validity of governmental regulation a. Clear and Present Danger b. Compelling State Interest H. LIBERTY OF ABODE AND RIGHT TO TRAVEL 1. Scope and limitations 2. Watch-list and hold departure orders

I. J.

K. L. M. N.

P. Q. R. S. T. U. V. W.

RIGHT TO INFORMATION 1. Scope and limitations EMINENT DOMAIN 1. Concept 2. Public Use 3. Just compensation 4. Expropriation by local government units RIGHT TO ASSOCIATION 1. Scope and limitations NON-IMPAIRMENT OF CONTRACTS 1. Concept and limitations FREE ACCESS TO COURTS AND ADEQUATE LEGAL ASSISTANCE CUSTODIAL INVESTIGATION 1. Meaning of custodial investigation 2. Rights of a person under custodial investigation 3. Requisites of a valid waiver 4. Exclusionary doctrine RIGHTS OF THE ACCUSED 1. Criminal due process 2. Bail 3. Presumption of innocence 4. Right to be heard 5. Right to counsel 6. Right to be informed of the nature and cause of accusation 7. Right to speedy, impartial and public trial 8. Right of confrontation 9. Right to compulsory processes 10. Trial in absentia RIGHT TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF CASES RIGHT AGAINST SELF-INCRIMINATION 1. Scope and Limitations 2. Immunity statutes RIGHT AGAINST DOUBLE JEOPARDY 1. Requisites and limitations RIGHT AGAINST INVOLUNTARY SERVITUDE RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS NON-IMPRISONMENT FOR DEBTS EX POST FACTO LAWS AND BILLS OF ATTAINDER WRITS OF HABEAS CORPUS, KALIKASAN, HABEAS DATA, AND AMPARO

NOTE: This portion may still be subject to updates. A supplementary reviewer shall be issued, if necessary.

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A. PRIVATE ACTS AND THE BILL OF RIGHTS The Bill of Rights does not govern relationships between individuals. It cannot be invoked against the acts of private individuals. (Remegio v. People of the Philippines, G.R. No. 227038, July 31, 2017)

B. DUE PROCESS OF LAW No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. (PHIL. CONST., art. III, § 1) Concept and Purpose Due process of law means simply, first, that there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class. (Rubi v. Provincial Board of Mindoro, G.R. No. L-14078, March 7, 1919) Due process evades a precise definition. The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned. (White Light Corporation v. City of Manila, G.R. No. 122846, Jan. 20, 2009) Scope The guarantees of the Bill of Rights are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, color, or nationality. All natural persons, and artificial persons, only in so far as their property is concerned, are protected by the Due Process clause. (Smith, Bell & Co. v. Natividad, G.R. No. 15574, Sept. 17, 1919) Relativity The concept of due process is not a static one. What is due process of law depends on circ*mstances. It varies with the subject-matter and necessities of the situation. (Rubi v. Provincial Board, citing Moyer vs. Peabody [1909], 212 U. S., 82)

1. Procedural And Substantive PROCEDURAL Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. (White Light Corporation v. City of Manila, G.R. No. 122846, Jan. 20, 2009) Essence The essence of procedural due process is embodied in the basic requirement of [1] notice and [2] a real opportunity to be heard. (Vivo v. PAGCOR, G.R. No. 187854, Nov. 12, 2013) While it is true that the right to due process safeguards the opportunity to be heard and to submit any evidence one may have in support of his claim or defense, where the opportunity to be heard is accorded, and the party can “present its side” or “defend its interest in due course”, there is no denial of due process because what the law proscribes is the lack of opportunity to be heard. (Oca v Custodio, GR 199825, July 26, 2017) Publication Every agency shall file with the Office of the National Administrative Register ONAR in the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons. (Section 3 of Chapter 2, Book VII of the Administrative Code of 1987) These requirements of publication and filing were put in place as safeguards against abuses on the part of lawmakers and as guarantees to the constitutional right to due process and to information on matters of public concern and, therefore, require strict compliance. (Republic v. Pilipinas Shell, G.R. No. 173918, April 8, 2008) However, not all rules and regulations adopted by every government agency are to be filed with the UP Law Center. Only those of general or of permanent character are to be filed. According to the UP Law Center’s guidelines for receiving and publication of rules and regulations, interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the Administrative agency and not the public, need not be filed with the UP Law

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Center. (The Board of Trustees of the GSIS v. Velasco, G.R. No. 170463, Feb. 2, 2011) Late Petitions Rules of procedure are intended to ensure the orderly administration of justice and the protection of substantive rights in judicial and extrajudicial proceedings. It is a mistake to suppose that substantive law and adjective law are contradictory to each other or, as has often been suggested, that enforcement of procedural rules should never be permitted if it will result in prejudice to the substantive rights of the litigants. This is not exactly true; the concept is much misunderstood. As a matter of fact, the policy of the courts is to give effect to both kinds of law, as complementing each other, in the just and speedy resolution of the dispute between the parties. Observance of both substantive and procedural rights is equally guaranteed by due process, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. (Tupas v. CA, G.R. No. 89571, Feb. 6, 1991) A party having forfeited the right to appeal cannot claim that he/she has been denied due process. (Tupas v. CA, G.R. No. 89571, Feb. 6, 1991) In a case of falsification of public documents, the accused claimed that his constitutional rights were violated when the Sandiganbayan denied his motion for new trial and motion to allow him to present additional witnesses. The Court ruled that his right to due process was not violated. The accused had 4 years to present evidence yet he only asked for the opportunity to present additional evidence via a motion for reconsideration after the Sandiganbayan had already admitted all the formal offers of evidence of the accused. Further, he failed to present the witness through the compulsory process of subpoena, during all the time that he testified for his defense for a period of six (6) months. Moreover, his motion to present additional witness was denied due to his failure to comply with Sections 4-5 of Rule 15. In addition, the evidence he seeks to present is not a newly discovered evidence since it was already presented by the other parties. All this points out to the conclusion that he was given ample opportunity to be heard. (Escobar v. People. G.R. No. 205576, Nov. 20, 2017) Motion for Reconsideration Due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or an opportunity to move for a reconsideration of the action or ruling complained of. (Elenita S. Binay v. Office of the Ombudsman, 213957-58, Aug. 7, 2019)

A city enacted an ordinance classifying certain areas as agricultural lands. A landowner filed an application for exemption and an Order was issued by the Secretary of Agrarian Reform, granting the exemption. Farmers of landowner’s landholdings filed an MR of the Order, which was subsequently granted by the judge, thereby revoking the first Order. However, this Order was sent to another city and not to the correct address of the landowner. The Court ruled that the landowner’s right to due process was not violated. She was still able to file her MR from the Order, albeit beyond the allowable period to file and was still given due course. While it may be true that she was prevented from filing a timely MR, it would be erroneous to conclude that she had been completely denied her opportunity to be heard. In administrative proceedings, procedural due process means that one is given the opportunity to explain one’s side and the opportunity to seek a reconsideration of the action or ruling complained of, not only through verbal arguments in court but also through pleadings. When she filed her MR, she was able to completely and exhaustively present her arguments. (Espiritu v. Del Rosario, G.R. No. 204964. Oct. 15, 2014) There is no denial of the right to due process if there was an opportunity for the parties to defend their interests in due course. Petitioner had been able to file a Motion for Reconsideration Ad Cautelam before the trial court, and later elevated its case before the Court of Appeals. There is no denial of due process if a party was given an opportunity to be heard in a Motion for Reconsideration. Petitioner did not take advantage of the opportunities it was given to lead a responsive pleading. It allowed the periods it was given for the filing of pleadings to lapse. (Philippine National Construction Corporation v. Asiavest Merchant Bankers (M) Berhad, GR. No. 172301, Aug. 19, 2015)

SUBSTANTIVE If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property. (White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009) Substantive due process requires that laws be [1] grounded on reason and [2] be free from arbitrariness. The government must have sufficient justification for depriving a person of life, liberty, or property. Essentially, substantive due process is satisfied if the deprivation is done in the exercise of

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the police power of the State. (Provincial Bus Operators Association of the Philippines v. DOLE, G.R. No. 202275, July 17, 2018) Requisites Laws which interfere with life, liberty, and property satisfy substantive due process when there is: a. Lawful Subject – The interests of the public generally, as distinguished from those of a particular class, require such interference; and b. Lawful Means – The means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the court. (US v. Toribio, G.R. No. L-5060, Jan. 26, 1910) License to Own and Operate Firearms With the bearing of arms being a mere privilege, there could not have been a deprivation of right to due process in requiring a license for the possession of firearms. Article III, Section 1 of the Constitution is clear that only life, liberty, or property is protected by the due process clause. It is settled that the license to possess a firearm is neither a property nor a property right. Assuming, for the sake of argument, that the right to possess a firearm were considered a property right, it is doctrine that property rights are always subject to the State's police power. Further, the PNP Guidelines, which suspended the issuance of permits to carry firearms outside of residence, was a valid police power measure. The interest of the general public was satisfied, since the Guidelines were issued in response to the rise in high-profile crimes. As to the means employed to retain peace and order in society, the revocation of all permits to carry firearms outside of residence would make it difficult for criminals to commit gun violence and victimize others. Therefore, the license requirement to own and operate a firearm is a valid exercise of police power and not a violation of the right to due process. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019) Requisites of a Valid Ordinance (Police Power of LGUs) (Must NOT CUPPU, Must be GC)

1. It must not contravene the constitution or any statute; 2. It must not be unfair or oppressive; 3. It must not be partial or discriminatory; 4. It must not prohibit but may regulate trade; 5. It must not be unreasonable; and 6. It must be general and consistent with public policy. Publication Due process, which is a rule of fairness, requires that those who must obey a command must first know the command. Thus, Art. 2 of the Civil Code prescribes a 15-day period of publication of laws before they take effect, unless otherwise provided. The omission of publication of laws would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. The term "laws" should refer to all laws and not only to those of general application, but including those of local application and private laws. Covered by this rule are presidential decrees and executive orders promulgated by the President. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. However, no publication is required for internal regulations issued by administrative agencies. Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. (Tañada v. Tuvera, G.R. No. L-63915, Dec. 29, 1986)

2. VOID-FOR-VAGUENESS Concept A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other Page 135 of 479

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statutes. (Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001) In determining whether the words used in a statute are vague, words must not only be taken in accordance with their plain meaning alone, but also in relation to other parts of the statute. It is a rule that every part of the statute must be interpreted with reference to the context, that is, every part of it must be construed together with the other parts and kept subservient to the general intent of the whole enactment. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Purpose A vague statute is repugnant to the Constitution in two (2) respects: a. It violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and b. It leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. (Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001)

VOID FOR VAGUENESS V. OVERBREADTH 1. Vagueness and overbreadth are distinct from each other; a vague law must lack clarity and precision, while an overbroad law need not. 2. It is submitted that while the defect of overbreadth as an analytical tool is applicable only to cases involving speech, this is not so about vagueness. Void for Vagueness v. Overbreadth VOID FOR OVERBREADTH VAGUENESS Unconstitutional Statute or act Gov't regulation of free speech Lacks comprehensible standards

Means sweep unnecessarily broadly

People guess at its Not necessarily meaning; differ in unclear application Violates due process; Invades protected creates unbridled freedoms discretion (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

3. Judicial and Administrative Due Process Administrative Proceeding; Dead Respondent In administrative cases, the essence of procedural due process is one’s right to given the opportunity to be heard. This opportunity to be heard must be present at every single stage of proceedings. Administrative proceedings require that the respondent be informed of the charges and be given an opportunity to refute them. Even after judgement is rendered, due process requires that the respondent not only be informed of the judgement but also given the opportunity to seek reconsideration of that judgement. The opportunity to be heard can only be exercised by those who have resigned or retired. The reason is obvious: They are still alive. Even if they cease to hold public office, they can still be made aware of the proceedings and actively submit pleadings. However, death forecloses any opportunity to be heard. Dead respondents will never know how the proceedings will continue. They cannot submit responsive pleadings or plead innocence of beg clemency. To continue with the proceedings is a violation of the right to due process. (FloresConcepcion v. Castañeda, A.M. No. RTJ-15-2438 (Resolution), Sept. 15, 2020) Standard for Different Types of Proceedings PROCEEDING STANDARD Judicial Proceedings (Ju3NO) 1. There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; 2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; 3. The defendant must be given an opportunity to be heard; and 4. Judgment must be rendered upon lawful hearing. (El Banco Español – Filipino v. Palanca, G.R. No. L-11390, March 26, 1918)

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(HESS-PIK) 1. The right to a Hearing, which includes the right to present one’s case and submit evidence in support thereof; 2. The tribunal must consider the Evidence presented; 3. The decision must have something to Support itself; 4. Evidence supporting the finding or conclusion must be Substantial; 5. The decision must be based on the evidence Presented at the hearing or at least contained in the record and disclosed to the parties affected; 6. The tribunal or body or any of its judges must act on its or his own Independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision; 7. The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can Know the various issues involved, and the reasons for the decision rendered.

(Ang Tibay v. CIR, G.R. No. L-46496)

Academic Disciplinary Proceedings

A lack of formal hearing in the administrative level does not violate procedural due process. The due process requirement before administrative bodies are not as strict compared to judicial tribunals in that it suffices that a party is given a reasonable opportunity to be heard. (Saunar v. Ermita, G.R. No. 186502) (WAEEC) 1. The students must be informed in Writing of the nature and cause of any accusation against them; 2. That they shall have the right to Answer the charges against them with the assistance of counsel, if desired; 3. They shall be informed of the Evidence against them; 4. They shall have the right to adduce Evidence in their own behalf; and 5. The evidence must be duly Considered by the investigating committee or official designated by the school authorities to hear and decide the case. Disciplinary cases involving students need not necessarily include the right to cross examination. An administrative proceeding conducted Page 137 of 479

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to investigate students' participation in a hazing activity need not be clothed with the attributes of a judicial proceeding. Thus, it is not subject to the rigorous requirements of criminal due process, particularly with respect to the specification of the charge involved. (ADMU v. Capulong, G.R. No. 99327) (GIHO) 1. There should be a prior determination by the Board of Commissioners of the existence of the Ground as charged against the alien; 2. The alien should be Informed of the specific grounds for deportation; 3. A Hearing should be conducted pursuant to the Rules of Procedure presented by the Commissioner of Immigration; and 4. Order of deportation based on the determination of the Commissioner of Immigration. Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to due process should not be denied.

Extradition Proceedings (Granting of bail)

(Lao Gi v. CA, G.R. No. 81798) If bail can be granted in deportation cases, there is no justification why it should not also be allowed in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. (Government of Hongkong v. Olalia, G.R. No. 153675) While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. (Government of Hongkong v. Olalia, G.R. No. 153675) Bail may be granted to a possible extraditee only upon a clear and convincing showing: 1. That he will not be a flight risk or a danger to the community; and 2. That there exist special, humanitarian and compelling circ*mstances. (Rodriguez v. Presiding Judge of RTC Manila, G.R. No. 157977) The grant of the bail presupposes that the extraditee has already presented evidence to prove his/her right to be

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on bail, that she is no flight risk, and the trial court had already exercised its sound discretion and had already determined that under the Constitution and laws in force, the extraditee is entitled to provisional release. (Rodriguez v. Presiding Judge of RTC Manila, G.R. No. 157977) Thus, the cancellation of an extraditee’s bail, without prior notice and hearing, could be considered a violation of his/her right to due process tantamount to grave abuse of discretion. (Rodriguez v. Presiding Judge of RTC Manila, G.R. No. 157977)

its own independent conclusions. (Gutierrez v COA, GR. No. 200628, Jan. 13, 2015) No Hearing in Provisional Price-fixing Such a relaxed procedure is especially true in administrative bodies, such as the ERB which in matters of rate or price fixing is considered as exercising a quasi-legislative, not quasi-judicial function. As such administrative agency, it is not bound by the strict or technical rules of evidence governing court proceedings Relaxed procedures adopted could not have resulted in the denial of due process. (Maceda v. ERB, G.R. No. 96266, Jul. 18, 1991) Pilotage is considered a property right Thus, the exercise of one's profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process. However, it is important to note that a regulation of professions does not per se entail a wrongful deprivation. It is only when a vested right is taken away without due process of l aw that it falls under the aegis of Article III, Sec. 1. (Corona v. UHPAP, G.R. No. 111953)

Instances when hearing is not necessary: (a) When administrative agencies are exercising their quasi-legislative functions. (b) When administrative agencies are exercising their quasi-judicial functions if temporary pending hearing. (c) Abatement of nuisance per se. (d) Granting by courts of provisional remedies. (e) Cases of preventive suspension. (f) Removal of temporary employees in the government. (g) Issuance of warrants of distraint and/or levy by the BIR Commissioner. (h) Cancellation of the passport of a person charged with a crime. (i) Suspension of a bank’s operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank.

Due Process Standards in Student Disciplinary Cases Due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings may be summary. Cross-examination is not an essential part of the investigation or hearing. The required proof in a student disciplinary action, which is an administrative case, is neither proof beyond reasonable doubt nor preponderance of evidence but only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. What is crucial is that official action must meet minimum standards of fairness to the individual, which generally encompass the right of adequate notice and a meaningful opportunity to be heard.

Due Process Standards in Administrative Proceedings Due process in administrative proceedings does not necessarily require a trial type of hearing. Neither does it require an exchange of pleadings between or among the parties. Due process is satisfied if the party who is properly notified of allegations against him or her is given an opportunity to defend himself or herself against those allegations, and such defense was considered by the tribunal in arriving at

A cadet facing dismissal from the military academy for misconduct has constitutionally protected private interests (life, liberty, or property); hence, disciplinary proceedings conducted within the bounds of procedural due process is a must. For that reason, the PMA is not immune from the strictures of due process. Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of the due process clause must be satisfied. Page 139 of 479

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The statement that "a cadet can be compelled to surrender some civil rights and liberties in order for the Code and System to be implemented" simply pertains to what cadets have to sacrifice in order to prove that they are men or women of integrity and honor, such as the right to entertain vices and the right to freely choose what they want to say or do. In the context of disciplinary investigation, it does not contemplate a surrender of the right to due process but, at most, refers to the cadets' rights to privacy and to remain silent. (Cudia v. Superintendent of the PMA, G.R. No. 211362, Feb. 24, 2015)

CONSTITUTIONAL AND STATUTORY DUE PROCESS What is often said about statutory due process is a procedure created by law, which upholds the constitutional right of a person to due process. Dismissal of Employees To be sure, the Due Process Clause in Article III, Sec. 1 of the Constitution embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our entire history. Due process is that which comports with the deepest notions of what is fair and right and just. It is a constitutional restraint on the legislative as well as on the executive and judicial powers of the government provided by the Bill of Rights. Due process under the Labor Code, like constitutional due process, has two aspects: substantive, (i.e., the valid and authorized causes of employment termination under the Labor Code) and procedural, (i.e., the manner of dismissal). Procedural due process requirements for dismissal are found in the Implementing Rules of P.D. 442, as amended, otherwise known as the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as amended by Department Order Nos. 9 and 10. Breaches of these due process requirements violate the Labor Code. Therefore, statutory due process should be differentiated from failure to comply with constitutional due process. Constitutional due process protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing.

Where the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights. (Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004) Although the closure was done in good faith and for valid reasons, we find that ITC did not comply with the notice requirement. While an employer is under no obligation to conduct hearings before effecting termination of employment due to authorized cause, however, the law requires that it must notify the DOLE and its employees at least one month before the intended date of closure. (Timber Co. v Ababon, G.R. No. 164518, Jan. 25, 2006) Preliminary Investigation The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials. The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. However, in order to satisfy the due process clause, it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More importantly, it is a part of the guarantees of freedom and fair play, which are birthrights of all who live in our country. (Salonga v. Panon, G.R. No. L-59524, Feb. 18, 1985)

C. EQUAL PROTECTION The equal protection of the law clause merely requires that all persons shall be treated alike, under like circ*mstances and conditions both as to privileges conferred and liabilities enforced. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which is to operate. It does not demand absolute equality among residents. (Ichong v. Hernandez, G.R. No. L-7995, May 31, 1957) Scope The guarantees of the Bill of Rights are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of

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race, color, or nationality. All natural persons, and artificial persons, only in so far as their property is concerned, are protected by the Equal Protection clause. (Smith, Bell & Co. v. Natividad, G.R. No. 15574, Sept. 17, 1919) The Constitution does not require absolute equality among persons. It is enough that all persons under like circ*mstances or conditions are given the same privileges and required to follow the same obligations. In short, a classification based on valid and reasonable standards does not violate the equal protection clause. (Tiu v. Court of Appeals, G.R. No. 127410, Jan. 20, 1999)

1. REQUISITES FOR VALID CLASSIFICATION The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. All that is required of a valid classification is that it be reasonable, which means that the classification should be: (GEES) 1. Be Germane to the purposes of the law; 2. Not limited to Existing conditions only; 3. Applied Equally to all members of the same class; and 4. Rest on Substantial distinctions which make for real differences. (Victoriano v. Elizalde Rope Workers’ Union, G.R. No. L-2524, Sept. 12, 1974)

APPLICATION General Banking Law of 2002 The General Banking Law provides a shorter period for redemption of three (3) months or earlier to juridical entities compared to the one (1) year redemption period given to natural persons. However, this does not violate the equal protection clause. Equal protection permits of reasonable classification. The difference in the treatment of juridical persons and natural persons was based on the nature of the properties foreclosed — whether these are used as residence, for which the more liberal one-year redemption period is retained, or used for industrial or commercial purposes, in which case a shorter term is deemed necessary to reduce the period of uncertainty in the ownership of property and enable mortgagee banks to dispose sooner of these acquired assets. (Zomer Development Co. v. Special 20th Division of the CA, G.R. No. 194461, Jan. 07, 2020)

Section 6 of the Cybercrime Prevention Act Section 6 of the Cybercrime Prevention Act imposing a penalty one degree higher than that provided in the RPC for acts committed by, through and with the use of information and communications technologies was assailed for violating equal protection. The Court upheld the section and explained that Section 6 merely makes commission of existing crimes through the internet a qualifying circ*mstance. There exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means. In using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Disbursem*nt Acceleration Program The DAP was challenged as “unfair as it [was] selective” because the funds released under the DAP was not made available to all the legislators, with some of them refusing to avail themselves of the DAP funds, and others being unaware of the availability of such funds. The Court held that the challenge based on the contravention of the Equal Protection Clause, which focuses on the release of funds under the DAP to legislators, lacks factual and legal basis. The denial of equal protection of any law should be an issue to be raised only by parties who supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have been discriminated against in the releases of funds under the DAP. The requirement was not met here. (Araullo v. Aquino III, G.R. No. 209287, July 1, 2014) Classification Freeze Provision The classification freeze provision does not violate the equal protection and uniformity of taxation. Even though it failed to promote fair competition among the players in the industry, the classification freeze provision was not precipitated by a veiled attempt or hostile attitude on the part of Congress to unduly favor older brands. Since the provision was done in good faith and is germane to the purpose of the law, the Court cannot declare it unconstitutional nor question its wisdom. (British American Tobacco v. Camacho, G.R. No. 163583, Aug. 20 2009) Cityhood Laws The Cityhood laws were constitutional. Based on the deliberations by Congress on R.A. 9009, Congress intended that those with pending cityhood bills during the 11th Congress would not be covered by the new and higher income requirement of P100 million imposed by RA 9009. The exemption clauses Page 141 of 479

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found in the individual Cityhood Laws are the express articulation of that intent to exempt respondent municipalities from the coverage of RA 9009. Such Cityhood Laws are, therefore, also amendments to the LGC itself. In the enactment of the Cityhood Laws, Congress merely took the 16 municipalities covered thereby from the disadvantaged position brought about by the abrupt increase in the income requirement (from 20 million to 100 million) of RA 9009, acknowledging the “privilege” that they have already given to those newly-converted component cities, which prior to the enactment of RA 9009, were undeniably in the same footing or “class” as the respondent municipalities. But in effect, the Cityhood Laws granted to 33 municipalities amended RA 9009 through the exemption clauses found therein. (League of Cities of the Phil. et al. v. COMELEC, et al. G.R. Nos. 176951, 177499, 178056, April 12, 2011) VAWC RA 9262 (An Act Defining Violence Against Women and Their Children - VAWC) is not violative of the equal protection clause. There is a valid classification. The unequal power relationship that women are more likely to be victims of violence and the widespread gender bias and prejudice against women make for real differences justifying the classification. The distinction is germane to the purpose of the law to address violence committed against women. The law applies to women and children who suffer violence and abuse. (Garcia v. Hon. Drilon, G.R. No. 179267, June 25, 2013) RH Law The RH Law, in providing that the poor are to be given priority in the government's reproductive health care program, does not violate the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct necessity to address the needs of the underprivileged by providing that they be given priority in addressing the health development of the people. It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from fertility issues and desire to have children. (Imbong v. Ochoa, G.R. 204819, April 8, 2014) Discounts to PWDs The Supreme Court upheld the constitutionality of R.A. No. 9442 or the Magna Carta for Persons with Disability granting the PWDs a 20% discount on the purchase of medicine, and a tax deduction scheme was adopted wherein covered establishments may deduct the discount granted from gross income based on the net cost of goods sold or services

rendered. The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary. With respect to R.A. No. 9442, its expressed public policy is the rehabilitation, selfdevelopment and self-reliance of PWDs. Persons with disability form a class separate and distinct from the other citizens of the country. Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the PWDs fully satisfy the demands of equal protection. Thus, Congress may pass a law providing for a different treatment to persons with disability apart from the other citizens of the country. (Drugstores Association of the Philippines, Inc. and Northern Luzon Drug Corporation v. National Council on Disability Affairs, et al., G.R. No. 194561, Sept. 4, 2016) Elective and Appointive Officials There is a substantial distinction between elective and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. (Eleazar P. Quinto and Gerino A. Tolentino, Jr., vs. COMELEC, G.R. No. 189698, Feb. 22, 2010) Tax Ordinance Specific to an Entity When the taxing ordinance was enacted, Ormoc Sugar Co., Inc. was the only sugar central in the City. A reasonable classification should be in terms applicable to future conditions as well. The taxing ordinance should not be singular and exclusive as to exclude any subsequently established sugar central from the coverage of the tax. A subsequently established sugar central cannot be subject to tax because the ordinance expressly points to Ormoc Sugar Company, Inc. as the entity to be levied upon. (Ormoc Sugar Company v. Ormoc City, G.R. No. L23794, Feb. 17, 1968) 5 Years of Experience as a Lower Court Judge as Requirement for RTC Judge Consideration of experience by JBC as one factor in choosing recommended appointees does not constitute a violation of the equal protection clause. The JBC does not discriminate when it employs number of years of service to screen and differentiate applicants from the competition. The number of years of service provides a relevant basis

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to determine proven competence which may be measured by experience, among other factors. The difference in treatment between lower court judges who have served at least five years and those who have served less than five years is upheld in order to meet the requirements of proven competence, experience, integrity, probity, and independence. The foregoing shows that substantial distinctions do exist between lower court judges with five year experience and those with less than five years of experience and the classification enshrined in the assailed policy is reasonable and relevant to its legitimate purpose. The Court, thus, rules that the questioned policy does not infringe on the equal protection clause as it is based on reasonable classification intended to gauge the proven competence of the applicants. Therefore, the said policy is valid and constitutional. (Villanueva v. JBC, G.R. No. 211833, April 07, 2015) Doctrine of Relative Unconstitutionality A statute valid at one time may become void at another time because of altered circ*mstances. Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions. This doctrine was invoked in a case to invalidate RA 7653, which started as a valid measure of legislative power applicable to Central Bank employees, but, with the enactment of subsequent laws exempting all rank and file employees of all GFIs from the Salary Standardization Law, was rendered void on account of a violation of the equal protection clause. (Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, Dec. 15, 2004) Suspect Classification A suspect classification is one where distinctions are made based on the most invidious bases for classification that violate the most basic human rights, i.e., on the basis of race, national origin, alien status, religious affiliation and, to a certain extent, sex and sexual orientation. (Serrano v. Gallant, G.R. No. 167614, Mar. 24, 2009) A "suspect class" is defined as "a class saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. (Zomer Development Co. v. Special 20th Division of the CA, G.R. No. 194461, Jan. 07, 2020)

Juridical entities cannot be considered a "suspect class." Juridical entities enjoy certain advantages that natural persons do not, such as limited liability. The properties of juridical entities are also often used for commercial purposes. In contrast, the properties of natural persons are more often used for residential purposes. They are also directly responsible for the liabilities they incur and, often, are not equipped with the same resources that juridical entities may have. Juridical entities, thus, cannot be considered a "suspect class." (Zomer Development Co. v. Special 20th Division of the CA, G.R. No. 194461, Jan. 07, 2020)

2. STANDARDS OF JUDICIAL REVIEW Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the reasonableness of classifications.

a. Strict Scrutiny Test The most demanding of all the three tests. Under the strict scrutiny test, the legislative classification is presumed to be unconstitutional and the government has the burden of proving that the classification is necessary to achieve a compelling State interest, and is the least restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the interest. (Serrano v. Gallant, G.R. NO. 167614, Mar. 24, 2009) The strict scrutiny test applies when a classification either (i) interferes with the exercise of fundamental rights, including the basic liberties guaranteed under the Constitution, or (ii) burdens suspect classes. (Spark v. Quezon City, G.R. No. 225442, Aug. 08, 2017)

Intermediate Scrutiny Test

The intermediate scrutiny test requires the government to show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving the interest. (Serrano v. Gallant, G.R. No. 167614, Mar. 24, 2009) The intermediate scrutiny test applies when a classification does not involve suspect classes or fundamental rights, but requires heightened scrutiny, such as in classifications based on gender and legitimacy. (Spark v. Quezon City, G.R. No. 225442, Aug. 08, 2017)

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c. Rational Basis Test Under the rational basis test, a legislative classification, to survive an equal protection challenge, must be shown to rationally further a legitimate state interest. (British American Tobacco v. Camacho, G.R. No. 163583, Aug. 20 2009) The rational basis test applies to all other subjects not covered by the first two tests. (Spark v. Quezon City, G.R. No. 225442, Aug. 08, 2017)

D. ARRESTS, SEARCHES AND SEIZURES Section 2 is not just a circ*mscription of the power of the State over a person’s home and possessions. More importantly, it protects the privacy and sanctity of the person himself. It is a guarantee of the right of the people to be secure in their “persons… against unreasonable searches and seizures.” It is therefore also a guarantee against unlawful arrests and other forms of restraint on the physical liberty of the person. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Under our Constitution, the same is declared a popular right of the people and, of course, indisputably it equally applies to both citizens and foreigners in this country. (Qua Chee Gan v Deportation Board, G.R. No. L-10280, September 30, 1963).

1. REQUISITES OF A VALID WARRANT a. Warrant of Arrest Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. (ROC, Sec. 1, Rule 113) An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention. (ROC, Sec. 2. Rule 113) If the judge is satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it,

he must issue a warrant or order for his arrest. (Sec. 6, Rule 112, Revised Rules of Criminal Procedure) Probable cause for issuance of warrant of arrest Such facts and circ*mstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. Judicial determination of probable cause for warrants of arrest Before issuing a warrant of arrest, the judge must be satisfied that based on the evidence submitted, there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof. At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates the evidence in determining probable cause to issue a warrant of arrest. (Pestillos v. Generoso, G.R. No. 182601, Nov. 10, 2014) What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. (Soliven v. Makasiar, G.R. No. 82585 Nov. 14, 1988 A judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. To be sure, the Judge must go beyond the Prosecutor’s certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court’s probing questions when the circ*mstances of the case so require. (Lim Sr. v. Felix G.R. Nos. 94054-57, Feb. 19, 1991)

b. Search Warrants A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court. (Sec. 1, Rule 126, Revised Rules of Criminal Procedure)

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The requisites for the issuance of a search warrant are: (POJEWS) 1. Probable cause is present (in connection with one specific offense); 2. Such probable cause must be determined personally by the judge; 3. The judge must examine, in writing and under oath or affirmation, the complainant and the witnesses he or she may produce; 4. The applicant and the witnesses testify on the facts personally known to them; and 5. The warrant specifically describes the place to be searched and the things to be seized. (People v. Mamaril, G.R. No. 171980, Oct. 6, 2010) A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (ROC, Rule 126, § 4) A search warrant must conform strictly to the constitutional requirements for its issuance; otherwise, it is void. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) Although the use of the word “and” implies conjunction or union, the CA was mistaken in giving the word undue importance. The primary consideration here is the finding of probable cause. It would not be necessary to examine both the applicant and other witnesses if either one is sufficient for the judge to establish probable cause. (People v. Gabiosa Sr., G.R. No. 248395, Jan. 29, 2020.)

Probable Cause Definition Probable cause for a search warrant is defined as such facts and circ*mstances which would lead a reasonably discrete and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) Concept A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion; it requires less than evidence which would justify conviction. The existence depends to a large degree upon the finding or opinion of the judge

conducting the examination. However, the findings of the judge should not disregard the facts before him nor run counter to the clear dictates of reason. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) Probability, Not Absolute or Moral Certainty Probable cause is concerned with probability, not absolute or even moral certainty. What is required is not proof beyond reasonable doubt but merely probable cause. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Conclusions of law unsupported by particulars are not sufficient to establish probable cause to be used as basis for the issuance of a warrant. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) A tip received from a classified informant may be the basis of a search. (People v. Lo Ho Wing, G.R. No. 88017, Jan. 21, 1991)

Personal Determination by the Judge Trial Court Discretion There is no exact test for the determination of probable cause in the issuance of search warrants. It is a matter wholly dependent on the finding of trial judges in the process of exercising their judicial function. They determine probable cause based on "evidence showing that, more likely than not, a crime has been committed and that it was committed" by the offender. (Worldwide Web Corporation v. People, G.R. No. 161106, Jan. 13, 2014) Probing and Exhaustive Examination In determining the existence of probable cause for the issuance of a search warrant, the examining magistrate must make probing and exhaustive, not merely routine or pro forma examination of the applicant and the witnesses. (Nala v. Barroso, G.R. No. 153087, Aug. 7, 2003) Facts and Circ*mstances Must Be Examined in their Totality Ultimately, in determining the existence of probable cause, the facts and circ*mstances must be personally examined by the judge in their totality, together with a judicious recognition of the variable complications and sensibilities attending a criminal case. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) Delay in Application Does Not Negate Probable Cause The supposed delay in the search warrant’s application does not dilute the probable cause finding made herein. The delay may be accounted Page 145 of 479

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for by a witness’s fear of reprisal and natural reluctance to get involved in a criminal case. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) Trial Judge Determination Accorded Great Deference by the Reviewing Court Generally, a judge’s determination of probable cause for the issuance of a search warrant is accorded great deference by a reviewing court, so long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circ*mstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (ROC, Rule 126, § 6)

Personal Examination of the Complainant and the Witnesses Purpose The intent was to ensure that a warrant is issued not merely on the basis of the affidavits of the complainant and his witnesses, but only after examination by the judge of the complainant and his witnesses. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) Personal Examination v. Personal Determination What the Constitution requires is for the judge to conduct an "examination under oath or affirmation of the complainant and the witnesses he may produce," after which he determines the existence of probable cause for the issuance of the warrant. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) Personal examination by the judge of the complainant and his witnesses is necessary to enable him to determine the existence or nonexistence of a probable cause. The determination of whether or not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary. (Bache and Co. v. Ruiz, G.R. No. L-32409. February 27, 1971) Affidavits are Insufficient

Affidavits of the complainant and his witnesses are insufficient to establish the factual basis for probable cause. Personal examination by the judge of the applicant and his witnesses is indispensable, and the examination should be probing and exhaustive, not merely routinary or a rehash of the affidavits. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (ROC, Rule 126, § 5) Depositions made by Clerk The participation of respondent Judge in the proceedings which led to the issuance of search warrant was limited to listening to the stenographer's readings of her notes, to a few words of warning against the commission of perjury, and to administering the oath to the complainant and his witness. This cannot be considered a personal examination. If there was an examination at all of the complainant and his witness, it was the one conducted by the Deputy Clerk of Court. The Constitution and the Rules require a personal examination by the judge. (Bache v. Co. v. Ruiz, G.R. No. L-32409. Feb. 27, 1971) Compliance is Shown by the Depositions and the Transcript Ideally, compliance with the examination requirement is shown by the depositions and the transcript. In their absence, however, a warrant may still be upheld if there is evidence in the records that the requisite examination was made and probable cause was based thereon. There must be, in the records, particular facts and circ*mstances that were considered by the judge as sufficient to make an independent evaluation of the existence of probable cause to justify the issuance of the search warrant. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015)

Facts Personally Known to the Applicant and the Witnesses Purpose The oath required must refer to the truth of the facts within the personal knowledge of the applicant or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. (Burgos v. Chief of Staff, G.R. No. L-6426, Dec. 26, 1984)

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Testimony Must Not be Based on Mere Hearsay The testimony must be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. (Nala v. Barroso, G.R. No. 153087, Aug. 7, 2003) Testimony Must Not be Based on Personal Belief The applicant and the witness must testify on their personal knowledge, not personal belief. (Nala v. Barroso, G.R. No. 153087, Aug. 7, 2003)

Particularity of Description The warrant must be issued in relation to one specific offense. (ROC, Sec. 4, Rule, 126) Purpose The evident purpose and intent of the requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant – to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed. (People v. Go, G.R. No. 144639, Sept. 12, 2003) Test of Sufficiency A description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) Particular Description Not Required if Goods by their Nature are Described Generally The search warrant must contain a particular description of the place to be searched and the person or thing to be seized. These provisions are mandatory and must be strictly complied with; but where, by the nature of the goods to be seized, their description must be rather generally, it is not required that a technical description be given, as this would mean that no warrant could issue. (Alvarez v. CFI, G.R. No. L-45358, Jan. 29, 1937) Technical Precision of Description Not Required Technical precision of description is not required. It is only necessary that there be reasonable particularity and certainty as to the identity of the property to be searched for and seized, so that the warrant shall not be a mere roving commission. Indeed, the law does not require that the things to be seized must be described in precise and minute

detail as to leave no room for doubt on the part of the searching authorities. If this were the rule, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things to look for. Any description of the place or thing to be searched that will enable the officer making the search with reasonable certainty to locate such place or thing is sufficient. (Worldwide Web Corporation v. People, G.R. No. 161106, Jan. 13, 2014) Required Wherever and Whenever it is Feasible The particularity of the description of the place to be searched and the things to be seized is required "wherever and whenever it is feasible." A search warrant need not describe the items to be seized in precise and minute detail. The warrant is valid when it enables the police officers to readily identify the properties to be seized and leaves them with no discretion regarding the articles to be seized. (Worldwide Web Corporation v. People, G.R. No. 161106, Jan. 13, 2014) Search Warrant for an Unnamed Party; John Doe Search Warrant A warrant for the apprehension of an unnamed party is void, except in those cases where it contains a descriptio personae such as will enable the officer to identify the accused. The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served. As the search warrant stated that John Doe had gambling apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo, City of Manila, and as this John Doe was Jose Ma. Veloso, the manager of the club, the police could identify John Doe as Jose Ma. Veloso without difficulty. (People v. Veloso, G.R. No. L-23051, Oct. 20, 1925) John Doe Search Warrants – Exception, Not the Rule John Doe search warrants should be the exception and not the rule. The police should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. The police should not be hindered in the performance of their duties, which are difficult enough of performance under the best of conditions, by superficial adherence to technicality or farfetched judicial interference. (People v. Veloso, G.R. No. L23051, Oct. 20, 1925) As said warrant is issued against 50 “John Does" not one of whom the witnesses to the complaint could or would Identify, it is of the nature of a general warrant, one of a class of writs long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the subject." Page 147 of 479

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(Pangandaman v. Casar, G.R. No. 71782 April 14, 1988) Mistake in the Name of the Person Does Not Invalidate the Warrant A mistake in the name of the person to be searched does not invalidate the warrant, especially when the authorities had personal knowledge of the drugrelated activities of the accused. In fact, a "John Doe" warrant satisfies the requirements so long as it contains a descriptio personae such as will enable the officer to identify the accused. A mistake in the identification of the owner of the place does not invalidate the warrant provided the place to be searched is properly described. (People v. Tiu Won Chua, G.R. No. 149878, July 1, 2003) General Warrants are Void A general warrant is defined as a search or arrest warrant that is not particular as to the person to be arrested or the property to be seized. It is one that allows the seizure of one thing under a warrant describing another and gives the officer executing the warrant the discretion over which items to take. (Worldwide Web Corporation v. People, G.R. No. 161106, Jan. 13, 2014) General warrants do not meet the requirement in Art. III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should particularly describe the things to be seized. (Uy v. BIR, G.R. No. 129651, Oct. 20, 2000) General Rule: A general warrant is null and void. (Nolasco v. Paño, G.R. No. L- 69803, Oct. 8, 1985). Exception: The search warrant is severable, and those items not particularly described may be cut off without destroying the whole warrant. (Uy v. BIR, G.R. No. 129651, Oct. 20, 2000) Scatter-shot Warrants A warrant must be issued upon probable cause in connection with one specific offense. Thus, where the questioned warrant was issued for multiple offenses, specifically Articles 171 and 213 of the Revised Penal Code, as well as the Anti-Graft and Corrupt Practices Act, it is void for being a scattershot warrant. (Vallejo v. CA, G.R. No. 156413, Apr. 14, 2004) No provision of law exists which requires that a warrant, partially defective in specifying some items sought to be seized yet particular with respect to the other items, should be nullified as a whole. A partially defective warrant remains valid as to the items specifically described in the warrant. A search

warrant is severable, the items not sufficiently described may be cut off without destroying the whole warrant. (Microsoft Corporation v. Maxicorp, G.R. No. 140946, Sept. 13, 2004)

WHAT MAY BE SEARCHED Personal Property to be Seized A search warrant may be issued for the search and seizure of personal property:

1. Subject of the offense; 2. Stolen or embezzled and other proceeds, or fruits of the offense; or 3. Used or intended to be used as the means of committing an offense. (ROC, Rule 126, § 3) Ownership Not Required, But Control or Possession The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [2] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized. (Burgos v. Chief of Staff, G.R. No. L6426, Dec. 26, 1984) Only Those Things Particularly Described in the Search Warrant The officers of the law are to seize only those things particularly described in the search warrant. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime. The search is limited in scope so as not to be general or explanatory. Nothing is left to the discretion of the officer executing the warrant. (United Laboratories v. Isip, G.R. No. 163858, June 28, 2005) The description "an undetermined amount of marijuana" must be held to satisfy the requirement for particularity in a search warrant. What is to be seized in the instant case is property of a specified character, i.e., marijuana, an illicit drug. By reason of its character and the circ*mstances under which it would be found, said article is illegal. A further description would be unnecessary and ordinarily impossible, except as to such character, the place, and the circ*mstances. It is not required that technical precision of description be required,

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particularly where, by the nature of the goods to be seized, their description must be rather general, since the requirement of technical description would mean that no warrant could issue. (People v. Tee, G.R. Nos. 140546-47, January 20, 2003)

CONDUCT OF A SEARCH Place to be Searched What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. (People v. CA, G.R. No. 126379, June 26, 1998) Time of Making Search The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (ROC, Rule 126, § 9) Period of the Validity of a Search Warrant A search warrant shall be valid for 10 days from its date. Thereafter it shall be void. (ROC, Rule 126, Sec. 10) Search of House, Room, or Premises to Be Made in Presence of Two Witnesses No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (ROC, Rule 126, § 3) This requirement is mandatory to ensure regularity in the execution of the search warrant. The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of the premises must be conducted. Thus, Section 8, Rule 126 provides that the search should be witnessed by “two witnesses of sufficient age and discretion residing in the same locality” only in the absence of either the lawful occupant of the premises or any member of his family (People v. Go, G.R. No. 144639, Sept. 12, 2003) “Knock and Announce” Principle in the Service of a Search Warrant Police officers are obliged to give notice, show their authority, and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant if, after such notice and demand, such officers are refused entry to the place of directed search. This is

known as the “knock and announce” principle which is embodied in Anglo-American Law. The method of entry of an officer into a dwelling and the presence or absence of such notice are as important considerations in assessing whether subsequent entry to search and/or arrest is constitutionally reasonable. (People v. Huang Zhen Hua, G.R. No. 139301, Sept. 29, 2004) Unannounced Intrusion When Permissible Unannounced intrusion into the premises is permissible when: 1. A party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; 2. When such person in the premises already knew of the identity of the officers and of their authority and persons; 3. When the officers are justified in the honest belief that there is an imminent peril to life or limb; and 4. When those in the premises, aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. Suspects have no constitutional right to destroy evidence or dispose of evidence. However, the exceptions above are not exclusive or conclusive. At times, without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide whether or not to make an unannounced intrusion into the premises. Although a search and seizure of a dwelling might be constitutionally defective, if the police officers’ entry was without prior announcement, law enforcement interest may also establish the reasonableness of an unannounced entry. Indeed, there is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circ*mstances. In determining the lawfulness of an unallowed entry and the existence of probable cause, the courts are concerned only with what the officers had reason to believe and the time of the entry. (People v. Huang Zhen Hua, G.R. No. 139301, Sept. 29, 2004) When Forcible Entry Justified The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (ROC, Rule 126, § 7) Page 149 of 479

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The police authorities’ claim that they had to use some force in order to gain entry cannot be doubted. The occupants of the house, especially accusedappellant, refused to open the door despite the fact that the searching party knocked on the door several times. Furthermore, the agents saw the suspicious movements of the people inside the house. These circ*mstances justified the searching party's forcible entry into the house, founded as it is on the apprehension that the execution of their mission would be frustrated unless they do so. (People v. Salanguit, G.R. No. 133254-55, April 19, 2001)

2. WARRANTLESS ARRESTS AND DETENTION Purpose To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances. (Umil v. Ramos, G.R. No. 81567 July 9, 1990) In warrantless arrests, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. (People v. Burgos, G.R. No. L-68955) Entrapment It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate the law. Not every deception is forbidden. The type of entrapment the law forbids is the inducing of another to violate the law, the "seduction" of an otherwise innocent person into a criminal career. Where the criminal intent originates criminal in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no conviction may be had. Where, however, the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that a person acting as a decoy for the state, or public officials furnished the accused an opportunity for commission of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused must be convicted.27 The law tolerates the use of decoys and other artifices to catch a criminal.

(People v. Doria, G.R. No. 125299 January 22, 1999) Instances When Warrantless Arrest May Be Made A peace officer or a private person may, without a warrant, arrest a person:

1. In Flagrante Delicto: When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; 2. Hot Pursuit Arrest: When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circ*mstances that the person to be arrested has committed it; and 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (ROC, Rule 113, § 5)

a. In Flagrante Delicto Requisites (OP) 1. The person to be arrested must execute an Overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and 2. Such overt act is done in the Presence or within the view of the arresting officer. Reliable information alone is insufficient to support the arrest absent any overt act from the person to be arrested indicating a crime has just been committed, was being committed, or is about to be committed. (Sapi v. People, G.R. No. 200370, June 7, 2017) Officer Sees the Offense, Although at a Distance When the illegal act was committed in the presence of the arresting officers, a warrantless arrest may be effected. An offense is committed in the presence of an officer when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene of the crime. Police officers have personal knowledge of the actual commission of the crime when they had earlier conducted surveillance activities of the accused. (People v. Sucro, G.R. No. 93239, March 18, 1991) For an arrest of a suspect in flagrante delicto, two elements must concur, namely: (a) the person to be arrested must execute an overt act indicating that he

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has just committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done in the presence or within the view of the arresting officer. The officer's personal knowledge of the fact of the commission of an offense is absolutely required. The officer himself must witness the crime. Furthermore, the facts do not give rise to a reasonable suspicion that X was in possession of shabu. From a meter away, even with perfect vision a police officer would not have been able to identify with reasonable accuracy the contents of the plastic sachet. X's acts of standing on the street and holding a plastic sachet in his hands, are not by themselves sufficient to incite suspicion of criminal activity or to create probable cause enough to justify a warrantless arrest. (Dominguez y Argana v. People, G.R. 235898, Mar. 13, 2019)

estimation is criminally seditious can justify warrantless arrest in flagrante delicto even if upon prosecution the officer is proved wrong. The criminal character of speech is something that is not easily determined and must await court estimation. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

Continuing Offense The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. Thus, a rebel may be arrested without a warrant at any time for he is deemed to be in the act of committing a crime. (Umil v. Ramos, G.R. No. 81567 July 9, 1990)

Element of Immediacy The clincher in the element of ''personal knowledge of facts or circ*mstances" is the required element of immediacy within which these facts or circ*mstances should be gathered. This required time element acts as a safeguard to ensure that the police officers have gathered the facts or perceived the circ*mstances within a very limited time frame. This guarantees that the police officers would have no time to base their probable cause finding on facts or circ*mstances obtained after an exhaustive investigation.

Buy-Bust In buy-bust operations, the arresting officers catch the malefactor in flagrante delicto. But the arresting officers must neither instigate nor induce the arrestee to commit a crime. Entrapment is the employment of such ways and means for the purpose of capturing a lawbreaker from whose mind the criminal intent originated. In such cases, a search warrant is not necessary because a search pursuant to a buy-bust operation is one made incidental to a lawful arrest – the arrestee is caught in flagrante delicto. (People v. De La Cruz, G.R. No. 101315, May 12, 1993) Stop and Frisk When a policeman observes suspicious activity, which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect, which is unlicensed, he can arrest such person for having committed an offense in his presence. For the arrest of one in flagrante delicto to be valid under Rule 112, Section 5(a), the law tilts in favor of authority. Thus, speech which in an officer's

b. Hot Pursuit Arrest Requisites (BC-PC-PK) 1. An offense has just Been Committed; and 2. The arresting officer has Probable Cause to believe based on Personal Knowledge of facts or circ*mstances that the person to be arrested has committed it. (People v. Comprado, G.R. No. 213225, April 4, 2018)

The reason for the element of the immediacy is this - as the time gap from the commission of the crime to the arrest widens, the pieces of information gathered are prone to become contaminated and subjected to external factors, interpretations and hearsay. On the other hand, with the element of immediacy imposed under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, the police officer's determination of probable cause would necessarily be limited to raw or uncontaminated facts or circ*mstances, gathered as they were within a very limited period of time. The same provision adds another safeguard with the requirement of probable cause as the standard for evaluating these facts of circ*mstances before the police officer could effect a valid warrantless arrest. (Pestilos v. Generoso, G.R. No. 182601, Nov. 10, 2014) Manlulu was arrested without a warrant for allegedly having killed another person at around 1:00AM in the morning. The warrantless arrest was made around 7:00PM or about 19 hours later. The SC held that for there to be a lawful warrantless arrest, the arresting officer must have personal knowledge of the offense, which has in fact just been committed. In other words, the arrest has to immediately follow

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the commission of the offense. If a sufficient amount of time lapses as to allow him to procure a warrant, then the police officer must do so. In this case, not only was the arrest 19 hours after the alleged crime, but the arresting officer also did not have any personal knowledge of the facts. The SC also held that personal gathering of information is different from personal knowledge. (People v. Manlulu, G.R. No. 102140, Apr. 22, 1994) Probable Cause In determining probable cause, the arresting officer may rely on all the information in his possession, his fair inferences therefrom, including his observations. Mere suspicion does not meet the requirements of showing probable cause to arrest without warrant especially if it is a mere general suspicion. Probable cause may rest on reasonably trustworthy information as well as personal knowledge. Thus, the arresting officer may rely on information supplied by a witness or a victim of a crime; and under the circ*mstances, the arresting officer need not verify such information. The arresting officer should base his determination of probable cause on his personal knowledge of facts and circ*mstances that the person sought to be arrested has committed the crime. In other words, the arresting officer operates on the basis of more limited facts, evidence or available information that he must personally gather within a limited time frame. One should not expect too much of an ordinary policeman. He is not presumed to exercise the subtle reasoning of a judicial officer. Oftentimes, he has no opportunity to make proper investigation but must act in haste on his own belief to prevent the escape of the criminal. (Pestilos v. Generoso, G.R. No. 182601, Nov. 10, 2014) Personal Knowledge: Hearsay Tip Insufficient The rule requires that an offense had just been committed. It connotes immediacy in point of time. Law enforcers need not personally witness the commission of a crime. However, they must have personal knowledge of facts and circ*mstances indicating that the person sought to be arrested committed it. A hearsay tip by itself is not personal knowledge required by the rule. (Sapi v. People, G.R. No. 200370, June 7, 2017) The requirement of personal knowledge is absent in this case. The Policeman was about 6-10 meters away when he saw the accused emerge from an alley holding a plastic sachet. His testimony fails to state that he had personal knowledge that the sachet contained shabu, or that he saw the sachet

containing white crystalline substance, to create a reasonable suspicion that the sachet did indeed contain shabu. From all indications — the time of the arrest being 11:30 p.m., the Policeman's location, and the tinted front windshield of the van through which he was looking — it was highly doubtful that the Policeman saw, let alone deciphered, the contents of the sachet. For sure, it was only when he held the hand of the accused and confiscated the plastic sachet that he was able to verify its contents. (Villasana y Cabahug v. People, G.R. No. 209078, Sept. 4, 2019)

c. Escapee An arrest without warrant is lawful when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (ROC, Sec. 5(c), Rule 113)

Waiver of Right Objection to Illegal Arrest Must be Made Before Plea Appellant is estopped from questioning the legality of his arrest considering that he never raised this before entering his plea. Any objection involving a warrant of arrest or the procedure in the acquisition of jurisdiction over the person of an accused must be made before he enters his plea, otherwise, the objection is deemed waived. Consequently, any irregularity attendant to his arrest, if any, had been cured by his voluntary submission to the jurisdiction of the trial court when he entered his plea and participated during the trial. (People v. Salvatierra, G.R. No. 104663, July 24, 1997) Accused was seen having a pot session and that the police who arrested him were conducting a “stakeout” operation. When accused tested positive for drugs, he was charged with violation of RA 9165. Accused did not deny that he was positive for drugs but rather, he questions the alleged illegality of his arrest. The Court ruled that accused had already waived the right to question the arrest. He was assisted by counsel when he entered his plea and was able to present his evidence. The right to question the validity of an arrest may be waived if the accused, assisted by counsel, fails to object to its validity before arraignment. (Lapi v. People, G.R. No. 210731, Feb. 13, 2019) Waiver of an Illegal Arrest, Not a Waiver of an Illegal Search A waiver of an illegal arrest, however, is not a waiver of an illegal search. While the accused has already

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waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right to contest the legality of the search. (Villanueva v. People, G.R. No. 199042, Nov. 17, 2014) A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. (Valdez v. People, G.R. No. 170180, Nov. 23, 2007) The right to question the validity of an arrest may be waived if the accused, assisted by counsel, fails to object to its validity before arraignment. This waiver, however, does not carry with it a waiver of the inadmissibility of the evidence seized during the illegal arrest. (Lapi v. People, G.R. No. 210731, Feb. 13, 2019) Application for Bail, Not a Waiver An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, provided that he raises them before entering his plea. (ROC, Rule 114, § 26)

3. WARRANTLESS SEARCHES There are exceptional circ*mstances when searches are reasonable even when warrantless. There are recognized instances of permissible warrantless searches laid down in jurisprudence. (Sapi v. People, G.R. No. 200370, June 7, 2017) Warrantless searches are allowable in the following circ*mstances: (WIPE MS CACP) a. Waiver of right b. Search Incidental to a lawful arrest c. Seizure of evidence in Plain view d. During exigent and Emergency circ*mstances e. Search of a Moving vehicle f. Stop and frisk rule (Terry Search) g. Customs search h. Airport searches i. Checkpoint Search j. Warrantless search by a Private individual [Note: This is found in Sec. 5, Rule 113 of the Rules of Court where a private person may arrest a person without a warrant, and in turn such private individual may validly conduct a search incidental to a lawful arrest] (People v. Aruta, G.R. No. 120915, April 3, 1998)

a. Waiver of Right

Requisites There is an effective waiver of rights against unreasonable searches and seizures if the following requisites are present: (EKI) 1. It must appear that the rights Exist; 2. The person involved had Knowledge, actual or constructive, of the existence of such right; 3. Said person had an actual Intention to relinquish the right. (People v. Tudtud, G.R. No. 144037, Sept. 26, 2003) Who May Waive The constitutional immunity from unreasonable searches and seizures, being personal one, cannot be waived by anyone except: 1. The person whose rights are invaded; or 2. One who is expressly authorized to do so in his or her behalf. (People v. Damaso, G.R. No. 93516, Aug. 12, 1992) Prosecution Must Prove the Waiver with Clear and Convincing Evidence Silence or lack of resistance can hardly be considered as consent to the warrantless search. Although the right against unreasonable searches and seizures may be surrendered through a valid waiver, the prosecution must prove that the waiver was executed with clear and convincing evidence. Consent to a warrantless search and seizure must be unequivocal, specific, intelligently given and unattended by duress or coercion. (Sapi v. People, G.R. No. 200370, June 7, 2017) It is the State that has the burden of proving, by clear and positive testimony, that the necessary consent was obtained, and was freely and voluntarily given. (Valdez v. People, G.R. No. 170180, Nov. 23, 2007) Determined by the Totality of the Circ*mstances The validity of a consented warrantless search is determined by the totality of the circ*mstances. This may involve an inquiry into the environment in which the consent was given such as the presence of coercive police procedures. (Sapi v. People, G.R. No. 200370, June 7, 2017) Waiver Not Presumed Mere passive conformity or silence to the warrantless search is only an implied acquiescence, which amounts to no consent at all. Silence or lack of aggressive objection is a natural reaction to a coercive environment brought about by the police officer's excessive intrusion into his private space. The prosecution and the police carry the burden of showing that the waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all cases, such waivers are not to be

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presumed. (Sapi v. People, G.R. No. 200370, June 7, 2017) Invalid Waiver Under RA 10951 RA No. 10591 authorizes warrantless inspections of houses, which are unreasonable and, therefore, require a search warrant. Signing the Consent of Voluntary Presentation for Inspection in the pro forma Individual Application for New Firearm Registration cannot be considered a valid waiver of the right against unreasonable searches under Article III, Section 2 of the Constitution. There is a legitimate, almost absolute, expectation of privacy in one's residence. The inspection contemplated may only be done with a search warrant. Therefore, the signing of the Consent of Voluntary Presentation for Inspection is violative of the protection against unreasonable searches and seizures. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019) Any objection to the legality of the search warrant and the admissibility of the evidence obtained thereby was deemed waived when no objection was raised by appellant during trial. (People v. Nunez, G.R. No. 177148, G.R. No. 177148 June 30, 2009)

a. Search Incidental to a Lawful Arrest A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (ROC, Rule 126, § 13) Purpose The purpose of allowing a warrantless search and seizure incident to a lawful arrest is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. It is therefore a reasonable exercise of the State’s police power to protect (1) law enforcers from the injury that may be inflicted on them by a person they have lawfully arrested; and (2) evidence from being destroyed by the arrestee. It seeks to ensure the safety of the arresting officers and the integrity of the evidence under the control and within the reach of the arrestee. (People v. Calantiao, G.R. No. 203984, June 18, 2014) Requisites Test for a valid warrantless search incidental to a lawful arrest: (LCC) 1. The arrest must be Lawful;

2. The item to be searched was within the arrestee’s Custody or area of immediate control; and 3. The search was Contemporaneous with the arrest. Lawful Arrest Must Precede the Search General Rule: A search incidental to a lawful arrest requires that there must first be a lawful arrest before a search is made. Otherwise stated, a lawful arrest must precede the search; the process cannot be reversed. (Sapi v. People, G.R. No. 200370, June 7, 2017) Exception: A search substantially contemporaneous with an arrest can precede the arrest if the police has probable cause to make the arrest at the outset of the search. (People v. Mariacos, G.R. No. 188611, June 16, 2010) Scope of Warrantless Search The scope of allowable warrantless search is limited to the area within which the person arrested could reach for a weapon or reach for evidence to destroy it. (Chimel v. California, 395 U.S. 752, June 23, 1969) Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latter’s reach. Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. (People v. Calantiao, G.R. No. 203984, June 18, 2014) In Valeroso, however, the Court held that the evidence searched and seized from him could not be used against him because they were discovered in a room, different from where he was being detained, and was in a locked cabinet. Thus, the area searched could not be considered as one within his immediate control that he could take any weapon or destroy any evidence against him. (People v. Calantiao, G.R. No. 203984, June 18, 2014) The better and established rule is a strict application of the exception provided in Rule 126, sec. 12 [now Sec. 13] and that is to absolutely limit a warrantless search of a person who is lawfully arrested to his or

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her person at the time of and incident to his or her arrest and to "dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place other than the place of arrest.” (Nolasco v. Pano, G.R. No. L- 69803, Jan. 30, 1987) What May Be Searched Assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was: (a) Used in the commission of the crime, or (b) The fruit of the crime, or (c) That which may be used as evidence, or (d) Which might furnish the arrestee with the means of escaping or committing violence. (People v. Comprado, G.R. No. 213225, April 4, 2018)

b. Seizure of Evidence in Plain View Concept Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure without a warrant. Requisites The following elements must be present before the doctrine may be applied: (VIAJ) 1. A prior Valid intention based on the valid

warrantless arrest in which the police are legally present in the pursuit of their official duties; 2. The evidence was Inadvertently discovered by the police who have the right to be where they are; 3. The evidence must be immediately Apparent; and 4. "Plain view" Justified were seizure of evidence without further search. (People v. Compacion, G.R. No. 124442, July 20, 2001) Immediately Apparent Requirement; Probable Cause The immediate requirement means that the executing officer can, at any time of discovery of the object or the facts therein available to him, determine probable cause of the object’s incriminating evidence. Probable cause must be the direct result of the officer’s instantaneous sensory perception of the object. The immediately apparent

test does not require an unduly high degree of certainty as to the incriminating character of the evidence. (United Laboratories v. Isip, G.R. No. 163858, June 28, 2005) It is undeniable that the seizure of the prohibited items in this case was valid under the "plain view" doctrine, for which the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. In this case all the elements of plain view were established. First, the police officers were conducting a routine checkpoint when they flagged down X, because he was committing several traffic infractions. Thus, the police officers had a prior justification for their act of flagging down X and their subsequent intrusion. Second, upon asking X for his registration papers, he voluntarily opened his utility box, and the two (2) sachets of shabu were plainly visible to the police officer Z. The discovery of the sachets was inadvertent and the illicit items were immediately apparent. Lastly, sachets containing white crystalline substance were confiscated since it appeared that the same could be evidence of a crime, contraband, or otherwise subject to seizure. This seizure of evidence justified the subsequent searches and the arrest of Danilo. If not for the said plastic sachets, there would have been no valid reason to search or frisk Danilo as his traffic violations were punishable only by fine. His traffic violations per se did not justify a search incidental to a lawful arrest as there was as yet no lawful arrest to speak of. (De Villa y Guinto v. People, G.R. No. 224039, Sept. 11, 2019.) Exception to the Inadmissibility of Evidence Obtained in a Warrantless Search Incident to a Lawful Arrest Outside the Suspect’s Person and Premises under his Immediate Control The Plain View Doctrine is actually the exception to the inadmissibility of evidence obtained in a warrantless search incident to a lawful arrest outside the suspect’s person and premises under his immediate control. It serves to supplement the prior justification – whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused – and permits the warrantless seizure. (People v. Calantiao, G.R. No. 203984, June 18, 2014) Page 155 of 479

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Applied Where a Police Officer is Not Searching for Evidence The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. (Valeroso v. CA, G.R. No. 164815, Sept. 3, 2009) Object Seized Inside a Closed Package General Rule: An object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. Exception: However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. (Caballes v. CA, G.R. No. 136292, Jan. 15, 2002) Plain View Doctrine Not Applicable When Evidence Discovered in the Course of a Search The seizure of the passports, bankbooks, checks, typewriter, check writer, dry seals and stamp pads and other assorted documents does not fall within the “plain view” exception. The assertions of the police officers that said objects were “inadvertently” seized within their “plain view” are mere legal conclusions which are not supported by any clear narration of the factual circ*mstances leading to their discovery. The supposed illegal character of the items claimed to have been seized within the “plain view” of the policemen was not readily and immediately apparent. Rather, the suspicions of the policemen appear to have been aroused by the presence of the numerous passports and immigration documents which they discovered in the course of their search. (People v. Go, G.R. No. 144639, Sept. 12, 2003)

Exigent and Circ*mstances

Emergency

In the event of a coup d’etat conducted by the “Reform the Armed Forces Movement Soldiers of the Filipino People”, the EUROCAR Building was put under surveillance pursuant to an intelligence

report that it housed large quantities of ammunition. During the operations, the car of the surveillance team was fired upon by 5 persons from a crowd within the vicinity of the EUROCAR Building. The team proceeded to the building without a warrant and was able to seize de Gracia and plenty of explosives and ammunition. The SC held that the arrests were impelled by the exigencies of the situation, which concerned the very survival of society and the government. In this case, the military operatives had reasonable ground to believe that a crime was being committed. The team had no opportunity to apply for a search warrant from the courts, as the court with jurisdiction, at that time, was closed due to disorder. (People v. De Gracia, G.R. Nos. 102009-10, July 6, 1994).

Search of a Moving Vehicle

Concept The rules governing searches and seizures have been liberalized when the object of a search is a vehicle for practical purposes. Police officers cannot be expected to appear before a judge and apply for a search warrant when time is of the essence considering the efficiency of vehicles in facilitating transactions involving contraband or dangerous articles. However, the inherent mobility of vehicles cannot justify all kinds of searches. Law enforcers must act on the basis of probable cause. (Sapi v. People, G.R. No. 200370, June 7, 2017) Rationale Securing a search warrant is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (Papa v. Mago, G.R. No. L27360, Feb. 28, 1968) Visual Search – No Probable Cause Required Thus, routinary and indiscriminate searches of moving vehicles are allowed if they are limited to a visual search. This holds especially true when the object of the search is a public vehicle where individuals have a reasonably reduced expectation of privacy. (Sapi v. People, G.R. No. 200370, June 7, 2017) A search of a moving vehicle may either be a mere routine inspection or an extensive search. The search in a routine inspection is limited to the following instances: a. Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; b. Simply looks into a vehicle; c. Flashes a light therein without opening the car's doors;

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Where the occupants are not subjected to a physical or body search; Where the inspection of the vehicles is limited to a visual search or visual inspection; and Where the routine check is conducted in a fixed area. (Macad v. People, G.R. No. 227366, Aug. 1, 2018)

Extensive Search – Probable Cause Required On the other hand, extensive searches are permissible only when they are founded upon probable cause. Any evidence obtained will be subject to the exclusionary principle under the Constitution. (Sapi v. People, G.R. No. 200370, June 7, 2017) That the object of a warrantless search is allegedly inside a moving vehicle does not justify an extensive search absent probable cause. Moreover, law enforcers cannot act solely on the basis of confidential or tipped information. A tip is still hearsay no matter how reliable it may be. It is not sufficient to constitute probable cause in the absence of any other circ*mstance that will arouse suspicion. (Sapi v. People, G.R. No. 200370, June 7, 2017) When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. (Macad v. People, G.R. No. 227366, Aug. 1, 2018) A confidential informer tipped the police that a Gemini car was going to deliver shabu. When they stopped the car, they saw a gun tucked in Tuazon’s waist. He did not have any documents, which strengthened the police’s suspicion. After he was told to step out of the car, they found plastic sachets containing shabu on the driver’s seat. These circ*mstances are sufficient to establish probable cause for the warrantless search of the car. Hence, the sachets of shabu may be admitted as evidence. (People v. Tuazon, G.R. No. 175783, Sept. 3, 2007)

Requisites (URIRA) 1. Police Officer observes Unusual conduct. 2. Reasonable suspicion that person is engaged in some type of criminal activity in light of experience. 3. Identifies himself as a policeman upon approach. 4. Makes Reasonable inquiries. 5. There is reasonable fear for one’s own, or others’ safety. Thus, he is entitled to conduct a limited search of the outer clothing of such persons in an Attempt to discover weapons that might be used for assault. (Terry v. Ohio, 392 U.S. 1, June 10, 1968) Scope The allowable scope of a "stop and frisk" search is limited to a protective search of outer clothing for weapons. (Sapi v. People, G.R. No. 200370, June 7, 2017) Totality of Suspicious Circ*mstances; At Least 2 or More Suspicious Circ*mstances For a “stop and frisk” search to be valid, it must be supported by evidence such that the totality of the suspicious circ*mstances observed by the arresting officer led him/her to believe that an accused was committing an illicit act. (Telen v. People, G.R. 228107, Oct. 9, 2019) To sustain the validity of a stop and frisk search, the arresting officer should have personally observed two (2) or more suspicious circ*mstances, the totality of which would then create a reasonable inference of criminal activity to compel the arresting officer to investigate further. (Manibog vs People, G.R. No. 211214, March 20, 2019)

Stop and Frisk Rule (Terry Search)

The police officer must observe at least 2 or more suspicious circ*mstances. In this case, the prosecution failed to prove the legality of the warrantless arrest and the bare assertion that they caught X in flagrante delicto of illegal possession of a hand grenade is insufficient to cloth the police officers with the authority to restrain X’s liberty. PO3 Y suspicion based on the sight of a metal object is not sufficient to defeat X’s constitutional right to privacy. More importantly, the prosecution in this case failed to prove the existence of a hand grenade as no evidence was proffered on its chain custody. (Telen v. People, G.R. 228107, Oct. 9, 2019)

Concept A "stop and frisk" search is the act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband. (Sapi v. People, G.R. No. 200370, June 7, 2017)

Probable Cause Not Required; But Genuine Reason Based on Experience Law enforcers do not have unbridled discretion in conducting "stop and frisk" searches. While probable cause is not required, a "stop and frisk"

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search cannot be validated on the basis of a suspicion or hunch. Law enforcers must have a genuine reason to believe, based on their experience and the particular circ*mstances of each case, that criminal activity may be afoot. Reliance on one (1) suspicious activity alone, or none at all, cannot produce a reasonable search. (Sapi v. People, G.R. No. 200370, June 7, 2017)

Customs Search

The Tariff and Customs Code of 1957 authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. But in the search of a dwelling house, the Code provides that said dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace. Thus, except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. (Papa v. Mago, G.R. No. L-27360, Feb. 28, 1968) Requisites: Customs searches are allowed when persons exercising police authority under the customs law effect search and seizure in the enforcement of customs laws. To be valid, the requirements are: (ACH) 1. The person conducting the search is

exercising police Authority under customs law; 2. The search was for the enforcement of Customs law; and 3. The place searched is not a dwelling place or House. (Dela Cruz v People of the Philippines, G.R. No. 209387, Jan. 11, 2016) CUSTOMS MODERNIZATION AND TARIFF ACT Persons Exercising Police Authority The following persons are authorized to effect search, seizure, and arrest: a. Officials of the Bureau, District Collectors, Deputy District Collectors, police officers,

agents, inspectors and guards of the Bureau; Upon authorization of the Commissioner, officers and members of the Armed Forces of the Philippines (AFP) and national law enforcement agencies; and Officials of the BIR on all cases falling within the regular performance of their duties, when payment of internal revenue taxes is involved. (Customs Modernization And Tariff Act, § 214)

Authority to Enter Properties Any person exercising police authority may, at any time, enter, pass through, and search any land, enclosure, warehouse, store, building or structure not principally used as a dwelling house. When a security personnel or any other employee lives in the warehouse, store, or any building, structure or enclosure that is used for storage of goods, it shall not be considered as a dwelling house for purposes of this Act. (Customs Modernization And Tariff Act, § 219) Authority to Search Dwelling House A dwelling house may be entered and searched only upon warrant issued by a Judge of a competent court, the sworn application thereon showing probable cause and particularly describing the place to be searched and the goods to be seized. (Customs Modernization And Tariff Act, § 220) Authority to Search Vessels or Aircrafts and Persons or Goods Conveyed Therein Any person exercising police authority under this Act may board, inspect, search and examine a vessel or aircraft and any container, trunk, package, box or envelope found on board, and physically search and examine any person thereon. In case of any probable violation of this Act, the person exercising police authority may seize the goods, vessel, aircraft, or any part thereof. Such power to search includes removal of any false bottom, partition, bulkhead, or any other obstruction for the purpose of uncovering any concealed dutiable or forfeitable goods. The proceeding herein authorized shall not give rise to any claim for damage caused to the goods, vessel or aircraft, unless there is gross negligence or abuse of authority in the exercise thereof. (Customs Modernization And Tariff Act, § 221)

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Authority to Search Vehicles, Other Carriers, Persons and Animals Upon reasonable cause, any person exercising police authority may open and examine any box, trunk, envelope, or other container for purposes of determining the presence of dutiable or prohibited goods. This authority includes the search of receptacles used for the transport of human remains and dead animals. Such authority likewise includes the power to stop, search, and examine any vehicle or carrier, person or animal suspected of holding or conveying dutiable or prohibited goods. (Customs Modernization And Tariff Act, § 222) Authority to Search Persons Arriving From Foreign Countries Upon reasonable cause, travelers arriving from foreign countries may be subjected to search and detention by the customs officers. The dignity of the person under search and detention shall be respected at all times. Female inspectors may be employed for the examination and search of persons of their own sex. (Customs Modernization And Tariff Act, § 223)

Airport Searches

The search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as follows: SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for, and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft," which shall constitute a part of the contract between the passenger and the air carrier. This constitutes another exception to the proscription against warrantless searches and seizures. As admitted by SUSAN and shown in Annex "D" of her Brief, the afore-quoted provision is stated in the "Notice to All Passengers" located at the final security checkpoint at the departure lounge. From the said provision, it is clear that the search, unlike in the Terry search, is not limited to weapons. Passengers are also subject to search for prohibited materials or substances. In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the discovery of packages on her body. It was too late in the day for her to refuse to be further searched because the discovery of the packages whose contents felt like rice granules, coupled by

her apprehensiveness and her obviously false statement that the packages contained only money, aroused the suspicion of the frisker that SUSAN was hiding something illegal. It must be repeated that R.A. No. 6235 authorizes search for prohibited materials or substances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft and sending her home (as suggested by appellant), and thereby depriving them of "the ability and facility to act accordingly, including to further search without warrant, in light of such circ*mstances, would be to sanction impotence and ineffectivity in law enforcement, to the detriment of society." Thus, the strip search in the ladies’ room was justified under the circ*mstances. (People v. Canton, G.R. No. 148825, Dec. 27, 2002)

Checkpoint Search

Concept A checkpoint search is a variant of a search of a moving vehicle. Checkpoints per se are not invalid. They are allowed in exceptional circ*mstances to protect the lives of individuals and ensure their safety. They are also sanctioned in cases where the government's survival is in danger. Considering that routine checkpoints intrude on a motorist's right to 'free passage’ to a certain extent, they must be conducted in a way least intrusive to motorists. (Sapi v. People, G.R. No. 200370, June 7, 2017) Requisites (No body LAV) 1. Passengers Not subjected to Body search; 2. Limited to visual search 3. Abnormal times; and 4. Vehicle not searched. (Valmonte v. Gen. De Villa, G.R. No. 83988, September 29, 1989) Limited to a Visual Search; Vehicle and Body Search Not Allowed The extent of routine inspections must be limited to a visual search. Routine inspections do not give law enforcers carte blanche to perform warrantless searches. (Sapi v. People, G.R. No. 200370, June 7, 2017) For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable searches. Thus, a search where an officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle, or flashes a light therein is not unreasonable. (Sapi v. People, G.R. No. 200370, June 7, 2017) Page 159 of 479

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Unannounced Checkpoints We see no need for checkpoints to be announced, as the accused have invoked. Not only would announcements be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated. (People v. Escano, G.R. Nos. 129756-58, Jan. 28, 2000) Extensive Search Allowed When Probable Cause Present However, an extensive search may be conducted on a vehicle at a checkpoint when law enforcers have probable cause to believe that the vehicle's passengers committed a crime or when the vehicle contains instruments of an offense. (Sapi v. People, G.R. No. 200370, June 7, 2017) Exclusive reliance on information tipped by informants goes against the very nature of probable cause. A single hint hardly amounts to the existence of such facts and circ*mstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched. The finding of should be premised on more than just the initial information relayed by assets. It was the confluence of initial tips and a myriad of other occurrences that ultimately sustained probable cause. In this case, a radio message cannot be the sole basis of the finding of probable cause to warrant the extensive search of the vehicle of the accuse on the police checkpoint. (People v. Yanson, G.R. No. 238453, July 31, 2019)

Warrantless Search Private Individual

If the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of a private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. (People v. Marti, G.R. No. 81561, Jan. 18, 1991) REASONABLE SEARCH V. WARRANTLESS SEARCH A reasonable search, on the one hand, and a warrantless search, on the other, are mutually

exclusive. While both State intrusions are valid even without a warrant, the underlying reasons for the absence of a warrant are different. (Saluday v. People, G.R. No. 215305, April 3, 2018) Reasonable Search A reasonable search arises from a reduced expectation of privacy, for which reason Section 2, Article III of the Constitution finds no application. Examples include searches done at airports, seaports, bus terminals, malls, and similar public places. (Saluday v. People, G.R. No. 215305, April 3, 2018) Warrantless Search In contrast, a warrantless search is presumably an "unreasonable search," but for reasons of practicality, a search warrant can be dispensed with. Examples include search incidental to a lawful arrest, search of evidence in plain view, consented search, and extensive search of a private moving vehicle. (Saluday v. People, G.R. No. 215305, April 3, 2018) REASONABLE SEARCH: BUS SEARCHES (Saluday v. People, G.R. No. 215305, April 3, 2018) Prior to Entry Prior to entry, passengers and their bags and luggages can be subjected to a routine inspection akin to airport and seaport security protocol. In this regard, metal detectors and x-ray scanning machines can be installed at bus terminals. Passengers can also be frisked. In lieu of electronic scanners, passengers can be required instead to open their bags and luggages for inspection, which inspection must be made in the passenger's presence. Should the passenger object, he or she can validly be refused entry into the terminal. While in Transit While in transit, a bus can still be searched by government agents or the security personnel of the bus owner in the following three instances: (IPC) a. Upon receipt of information that a passenger carries contraband or Illegal articles, the bus where the passenger is aboard can be stopped en route to allow for an inspection of the person and his or her effects. This is no different from an airplane that is forced to land upon receipt of information about the contraband or illegal articles carried by a passenger onboard. b. Whenever a bus picks passengers en route, the Prospective passenger can be

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frisked and his or her bag or luggage be subjected to the same routine inspection by government agents or private security personnel as though the person boarded the bus at the terminal. This is because unlike an airplane, a bus is able to stop and pick passengers along the way, making it possible for these passengers to evade the routine search at the bus terminal. A bus can be flagged down at designated military or police Checkpoints where State agents can board the vehicle for a routine inspection of the passengers and their bags or luggages.

Requisites In both situations (prior to entry and while in transit), the inspection of passengers and their effects prior to entry at the bus terminal and the search of the bus while in transit must also satisfy the following conditions to qualify as a valid reasonable search: (LIDSE) 1. First, as to the manner of the search, it must

be the Least Intrusive and must uphold the dignity of the person or persons being searched, minimizing, if not altogether eradicating, any cause for public embarrassment, humiliation or ridicule. 2. Second, neither can the search result from any Discriminatory motive such as insidious profiling, stereotyping and other similar motives. In all instances, the fundamental rights of vulnerable identities, persons with disabilities, children and other similar groups should be protected. 3. Third, as to the purpose of the search, it must be confined to ensuring public Safety. 4. Fourth, as to the Evidence seized from the reasonable search, courts must be convinced that precautionary measures were in place to ensure that no evidence was planted against the accused. Applies to Other Vehicles Aside from public transport buses, any moving vehicle that similarly accepts passengers at the terminal and along its route is likewise covered by these guidelines. Hence, whenever compliant with these guidelines, a routine inspection at the terminal or of the vehicle itself while in transit constitutes a reasonable search. Otherwise, the intrusion becomes unreasonable, thereby triggering the constitutional guarantee under Section 2, Article III of the Constitution.

Does Not Apply to Privately-Owned Cars The guidelines do not apply to privately-owned cars. Neither are they applicable to moving vehicles dedicated for private or personal use, as in the case of taxis, which are hired by only one or a group of passengers such that the vehicle can no longer be flagged down by any other person until the passengers on board alight from the vehicle.

REASONABLE SEARCH: PORT SEARCHES Searches pursuant to port security measures are not unreasonable per se. The security measures of x-ray scanning and inspection in domestic ports are akin to routine security procedures in airports. The reason behind the exception to the prohibition against warrantless searches is that there is a reasonable reduced expectation of privacy when coming into airports or ports of travel. Actual inspection upon showing of probable cause that a crime is being or has been committed is part of reasonable security regulations to safeguard the passengers passing through ports or terminals. Any perceived curtailment of liberty due to the presentation of person and effects for port security measures is a permissible intrusion to privacy when measured against the possible harm to society caused by lawless persons. Thus, when the results of the x-ray scan revealed the existence of firearms in the bag, the port authorities have probable cause to conduct a search of the person’s bag. (Dela Cruz v People of the Philippines, GR 209387, Jan. 11, 2016)

4. ADMINISTRATIVE ARRESTS Deportation Proceedings Section 37 of the Immigration Law, empowering the Commissioner of Immigration to issue warrants for the arrest of overstaying aliens is constitutional. The arrest is a step preliminary to the deportation of the aliens who had violated the condition of their stay in this country. The requirement of probable cause, to be determined by a Judge, does not extend to deportation proceedings. There need be no "truncated" recourse to both judicial and administrative warrants in a single deportation proceeding. (Harvey v. Miriam Defensor Santiago, G.R. No. 82544, June 28, 1988) Drug, Alcohol, and Blood Test The Court acknowledged that compelled urinalysis was a form of search but its “reasonableness” must be judged by balancing the intrusion on the individual’s interests against the promotion of

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legitimate government interests. What was essential was the school’s custodial responsibility and authority, the nature of the intrusion, the confidentiality of the test results and the legitimate government interest. (Vernonia School District v. Acton, 515 U.S. 64, June 26, 1995; Board of Education v. Earls, 536 U.S. 22, June 27, 2002) The Philippine courts followed the ruling in Vernonia when it decided a case involving the mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor’s office with certain offenses. The SC held that the right to privacy has been accorded as a facet of the right to unreasonable searches and seizures. On the case of mandatory drug testing provided for in the Dangerous Drug Act, the Supreme Court held the following: 1.

Candidates for Constitutional Offices – Unconstitutional A law cannot provide additional qualifications other than those outlined in the Constitution.

2. Employees – Constitutional The random drug testing would be undertaken in such a manner as to protect the privacy of the employees involved. Also, the privacy interest in an office is circ*mscribed by the company’s work policies, CBAs, and the right of the employer to maintain discipline and efficiency in the workplace. The right to privacy must yield to the necessary and reasonable requirements of police power. 3. Students – Constitutional It is within the prerogative of schools to require compliance with reasonable school regulations, as a condition for admission or enrollment. The court found: a. Schools and their administrators stand in loco parentis with respect to their students; b. Minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; c. Schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and d. Schools have the right to impose conditions on applicants for admission that are fair, just, and non- discriminatory.

Persons charged before the public prosecutor's office – Unconstitutional Defendants in a criminal complaint are not randomly picked; neither are they beyond suspicion. Certain persons are singled out and are impleaded against their will, making a medical test a tool for criminal prosecution. (Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870, 158633, 161658, Nov. 3, 2008)

5. EXCLUSIONARY RULE Concept Any evidence obtained in violation of the right against unreasonable searches and seizure shall be inadmissible for any purpose in any proceeding. (PHIL. CONST., art. III, § 3[2]) Any evidence obtained in violation of the right against unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding. This exclusionary rule instructs that evidence obtained and confiscated on the occasion of such unreasonable searches and seizures are deemed tainted and should be excluded for being the proverbial fruit of a poisonous tree. In other words, evidence obtained from unreasonable searches and seizures shall be inadmissible in evidence for any purpose in any proceeding. (People v. Comprado, G.R. No. 213225, April 4, 2018) To Whom Directed: The State The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. (People v. Marti, G.R. No. 81561, Jan. 18, 1991) If the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. (People v. Marti, G.R. No. 81561, Jan. 18, 1991)

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E. PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE 1. PRIVATE AND PUBLIC COMMUNICATIONS Concept Forms of communication and correspondence considered private and protected by this provision include: a. Letters b. Messages c. Telephone calls d. Telegrams and the like (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Reasonable Expectation of Privacy Test In ascertaining whether there is a violation of the right to privacy, courts use the "reasonable expectation of privacy" test. This test determines whether a person has a reasonable expectation of privacy and whether the expectation has been violated. The reasonableness of a person’s expectation of privacy depends on a two-part test: a. Subjective: Whether, by his conduct, the individual has exhibited an expectation of privacy; and b. Objective: This expectation is one that society recognizes as reasonable. (Pollo v. Constantino-David, G.R. No. 181881, Oct. 18, 2011) Customs, community norms, and practices may, therefore, limit or extend an individual’s reasonable expectation of privacy. Hence, the reasonableness of a person’s expectation of privacy must be determined on a case-to-case basis since it depends on the factual circ*mstances surrounding the case. (Sps. Hing v. Choachuy, G.R. No. 179736, June 26, 2013) In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) A government employee has a burden of proving that he has legitimate expectation of privacy either in his office or computer files. He can prove this by alleging and demonstrating the following: he used a

password on his computer, did not share his office with co-workers and kept the same locked. However, the existence of a workplace privacy policy may limit or erode the reasonable expectation of privacy. (Pollo v. Constantino-David, G.R. No. 181881, Oct. 18, 2011) Private Communications Can Be Made Public Private communications can be made public where a secret involves public questions which the State should and ought to know, the State may infringe that privacy of communication by some process or by appealing to the Court for the purpose of determining whether or not the privacy should be maintained. The court may allow intrusions on privacy of communication and correspondence only on the ground of probable cause. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Public Figure The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. (Ayer v. Capulong, G.R. No. 82380, April 29, 1988) Personal Matters Section 7, Article III of the 1987 Constitution grants the right of the people to information on matters of public concern. Personal matters are exempt or outside the coverage of the people’s right to information on matters of public concern. The data treated as "strictly confidential" under EO 420 being private matters and not matters of public concern, these data cannot be released to the public or the press. (KMU v. Dir. Gen. of NEDA, G.R. No. 167798, April 19, 2006)

2. INTRUSION, WHEN ALLOWED The privacy of communication and correspondence shall be inviolable except: a. Upon lawful order of the court, or b. When public safety or order requires otherwise as prescribed by law. (PHIL. CONST., art. III, § 3[1])

a. Upon Lawful Order of the Court Probable Cause Required The constitutional text does not give any ground. It is submitted that the requirement of probable cause in the preceding section (Art. III, Sec. 2) should be followed. After all, the privacy right is but an aspect of the right to be secure in one’s person. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

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b. When Public Safety or Order Requires Otherwise as Prescribed by Law Prescribed by Law It should be based upon a government official’s assessment that public safety and order demand such intrusion, as provided by law. It is not only that the discretion of the executive officer is limitable by law but also that a public officer who exercises this power must be able to point to a law under which he acts. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Public Order and Safety The security of human lives, liberty, and property against the activities of invaders, insurrectionists, and rebels. (1971 Constitutional Convention, Nov. 25, 1972)

3. EXCLUSIONARY RULE Concept Any evidence obtained in violation of the right to privacy of communication and correspondence shall be inadmissible for any purpose in any proceeding. (Phil. Const., art. III, § 3[2]) To Whom Directed: The State To come under the exclusionary rule, however, the evidence must be obtained by government agents and not by private individuals acting on their own. This does not mean however that private individuals cannot be held liable. Almost all these liberties are also guaranteed by Article 32 of the Civil Code, making private violations actionable even if the violation does not have a constitutional consequence such as the applicability of the exclusionary rule. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Exclusionary rule will not apply if the recipient of the message granted access to the message(s) sent. (Office of the Court Administrator v. Judge Eliza B. Yu, A.M. No. MTJ-12-1813, Mar. 14, 2017) General rule: The constitutional proscription against unreasonable search and seizure applies as a restraint against the government and its agencies. It can only be invoked against the State. If the search is made at the initiative of a private person for private purposes, without the intervention of police authorities, the right cannot be invoked because only the act of a private individual is involved and not of law enforcers. The protection of unreasonable search and seizure cannot be

extended to acts committed by private individuals. (People v. Marti, G.R. No. 81561) However, applied to wife who took documents and papers from husband’s clinic without the latter's knowledge and consent The constitutional injunction declaring the privacy of communication and correspondence to be inviolable is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a lawful order from a court or when public safety or order requires otherwise, as prescribed by law. Any violation of this provision renders the evidence obtained inadmissible for any purpose in any proceeding. The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. (Zulueta v. CA, G.R. No. 107383, Feb. 20, 1996) R.A. 10175 (CYBERCRIME PREVENTION ACT) Certain Cybercrime Offenses under RA 10175 were assailed for violating both the right against unreasonable searches and seizures and the right to privacy. The court held that relevant to any discussion of the right to privacy is the concept known as the Zones of Privacy, as discussed earlier. In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. The usual

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identifying information regarding a person includes his name, his citizenship, his residence address, his contact number, his place and date of birth, the name of his spouse, if any, his occupation, and similar data. The law punishes those who acquire or use such identifying information without right, implicitly to cause damage. Petitioners failed to show how government effort to curb computerrelated identity theft violates the right to privacy and correspondence as well as the right to due process of law. However, Section 12 on real-time collection of traffic data was declared unconstitutional for the authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these agencies. Section 12, of course, limits the collection of traffic data to those “associated with specified communications.” But this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in “fishing expedition,” choosing whatever specified communication they want. This evidently threatens the right of individuals to privacy. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) R.A. 4200 (ANTI-WIRETAPPING ACT) a. b.

Only protects letters, messages, telephone calls, telegrams and the like. The substance of the conversation need not be specifically alleged in the information. Under Section 3 of R.A. 4200, a peace officer, who is authorized by a written order of the Court, may execute any of the acts declared to be unlawful in the said law in cases involving the crimes of: 1. Treason 2. Espionage 3. Provoking war and disloyalty in case of war 4. Piracy and mutiny in the high seas 5. Rebellion (conspiracy and proposal to commit; inciting to commit) 6. Sedition (conspiracy to commit and inciting to commit)

7. 8.

Kidnapping Violations of C.A. No. 616 (punishing espionage and other offenses against national security) i. R.A. 4200 does not distinguish between a party to the private communication or a third person. Hence, both could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200. (Ramirez v. CA, G.R. No. 93833, Sept. 28, 1995) ii. The use of a telephone extension to overhear a private conversation is not a violation of R.A. 4200 because it is not similar to any of the prohibited devices under the law. Also, a telephone extension is not purposely installed for the purpose of secretly intercepting or recording private communication. (Gaanan v. IAC, G.R. No. L- 69809, Oct. 16, 1986)

Online Social Network Privacy Before one can have an expectation of privacy in his or her Online Social Network activity, it is first necessary that said user manifest the intention to keep certain posts private. In the cyber world, utilization of privacy tools is the manifestation of the user’s invocation of his or her right to informational privacy. That the photos are viewable by “friends only” does not necessarily bolster the contention to the right to privacy. In this regard, the cyber community is agreed that the digital images under this setting still remain to be outside the confines of the zones of privacy in view of the following: a.

c. d.

Facebook “allows the world to be more open and connected by giving its users the tools to interact and share in any conceivable way” A good number of Facebook users “befriend” other users who are total strangers; The sheer number of “Friends” one user has, usually by the hundreds; and A user’s Facebook friend can “share” the former’s post, or “tag” others who are not Facebook friends with the former, despite its being visible only to his or her own Facebook friends.

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Setting a post’s or profile detail’s privacy to “Friends” is no assurance that it can no longer be viewed by another user who is not Facebook friends with the source of the content. Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post or profile detail should not be denied the informational privacy right which necessarily accompanies said choice. Otherwise, using these privacy tools would be a f*ckless exercise, such that if, for instance, a user uploads a photo or any personal information to his or her Facebook page and sets its privacy level at "Only Me" or a custom list so that only the user or a chosen few can view it, said photo would still be deemed public by the courts as if the user never chose to limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip these privacy tools of their function but it would also disregard the very intention of the user to keep said photo or information within the confines of his or her private space. (Vivares v. St. Theresa’s College, G.R. No. 202666, Sept. 29, 2014)

F. FREEDOM OF SPEECH AND EXPRESSION The doctrine on freedom of speech was formulated primarily for the protection of “core” speech such as speech which communicates political, social, or religious ideas. Those enjoy the same degree of protection. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). Includes every form of expression, whether oral, written, tape, or disc recorded. It also includes movies, symbolic speech (wearing of arm-bands), peaceful picketing, and conduct which amounts to speech. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011).

1. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT PRIOR RESTRAINT (CENSORSHIP) Concept Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government.

(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Essence of Censorship The Session Law of Minnesota mandated the abatement, as public nuisances, of malicious, scandalous, and defamatory publications. After publishing articles that criticized certain local public officials and personalities, The Saturday Press, owned by the petitioner Near, was enjoined from further publication. The court held that the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter...and unless the owner or publisher is able to disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship. (Near v. Minnesota, 283 U.S. 697, June 1, 1931; Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Presumed Invalid and Unconstitutional General Rule: Any system of prior restraints of expression comes to court bearing a heavy Presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for in enforcement of such restraint. There, thus a reversal of the normal presumption of validity that inheres in every legislation. (SWS v. COMELEC, G.R. No. 147571, May 5, 2001) Exception: The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, timehonored one — that a statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion. (National Press Club v. COMELEC, G.R. No. 102653 March 5, 1992) Any prior restraint upon the freedom of the press bears a heavy presumption against its constitutionality. In other words, the government

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must clearly make out a case to overcome this presumption, which it failed to do in this case. The word “security” is so broad that it should not be used to abrogate the fundamental law. The publication would not cause an inevitable, immediate, and direct event that would imperil the safety of the American forces, such that there was no grave and irreparable danger. The US Supreme Court also held that the 1st Amendment does not tolerate prior restraints predicated upon beliefs that untoward consequences may result therefrom. The press must be left free to publish news, whatever the source, without censorship or restraint because only a free and unrestrained press can effectively expose government deception to the people. (New York Times v. United States, 403 U.S. 713, June 30, 1971)

obstructed the “recruiting or enlistment service” during World War I.

Government Acts Precluded Freedom from prior restraint precludes governmental acts that: 1. Requires approval of a proposal to publish; 2. Licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and 3. Injunctions against publication.

The question in every case is whether the words used are used in such circ*mstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. (Schenck v. United States, 249 U.S. 47, March 3, 1919)

Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) When Prohibition on Prior Restraint Does Not Apply (WOS) a. When the nation is at War. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) (e.g., The government can prevent publication about the number or location of its troops) b. Obscene publications c. Security of community life may be protected against incitements to acts of violence or overthrow by force of orderly government. (Near v. Minnesota, 283 U.S. 697, June 1, 1931) Speech During War Time In the landmark case of Schenck v. United States, the Supreme Court affirmed the conviction of Charles Schenck and Elizabeth Baer for violating the Espionage Act of 1917 through actions that

The ruling established that Congress has more latitude in limiting speech in times of war than in peacetime. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. In many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circ*mstances in which it is done.

SUBSEQUENT PUNISHMENT Concept The aspect of freedom from liability subsequent to publication precludes liability for completed publications of views traditionally held innocent. Otherwise, the prohibition on prior restraint would be meaningless, as the unrestrained threat of subsequent punishment, by itself, would be an effective prior restraint. Thus, opinions on public issues cannot be punished when published, merely because the opinions are novel or controversial, or because they clash with current doctrines. This fact does not imply that publishers and editors are never liable for what they print. Such freedom gives no immunity from laws punishing scandalous or obscene matter, seditious or disloyal writings, and libelous or insulting words. As classically expressed, the freedom of the press embraces at the very least the freedom to discuss truthfully and publicly matters of public concern, without previous restraint or fear of subsequent punishment. For discussion to be innocent, it must be truthful, must concern something in which people in general take a healthy interest, and must not endanger some important social end that the government by law protects. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

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2. CONTENT-BASED AND CONTENT NEUTRAL REGULATIONS CONTENT-BASED REGULATION Concept A content-based restraint or censorship is where the restriction is based on the subject matter of the utterance or speech. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Subject to the Clear and Present Danger Rule A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Clear and Present Danger Test Whether the words used are used in such circ*mstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Requisites of a Valid Content-Based Regulation With respect to content-based restrictions, the government must: (HIIR) 1. The government must show the type of Harm

the speech sought to be restrained would bring about — especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be invalid; 2. The regulation which restricts the speech content must serve an important or substantial government Interest, which is unrelated to the suppression of free expression; and 3. The Incidental Restriction on speech must be no greater than what is essential to the furtherance of that interest. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

CONTENT-NEUTRAL REGULATION Concept A content-neutral regulation is merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under welldefined standards. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Subject to Intermediate Approach When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach—somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to contentbased restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Intermediate Approach: O’Brien Test for a Valid Content-Neutral Regulation A governmental regulation is sufficiently justified if: (CISUNOG) 1. It is within the Constitutional power of the

Government; furthers an Important or Substantial governmental interest; 3. The governmental interest is Unrelated to the suppression of free expression; and 4. The incident restriction on alleged freedom of speech & expression is NO Greater than is essential to the furtherance of that interest. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) 2. It

3. FACIAL CHALLENGES AND OVERBREADTH DOCTRINE Specificity of Regulation and Vagueness Doctrine The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. A facial challenge is allowed to be made to a vague statute and also to one which is overbroad because of possible "'chilling effect' on protected speech that comes from statutes violating free speech. A person who

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does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence. (Lagman v. Medialdea, G.R. No. 231658)

Overbreadth Doctrine Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.

It is best to stress that the vagueness doctrine has a special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes. (Lagman v. Medialdea, G.R. No. 231658)

Prohibiting placing of campaign decals on private cars is overbroad, and thus invalid prohibition. (Adiong v. COMELEC, G.R. No. 103956 March 31, 1992)

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible 'chilling effect' upon protected speech. The theory is that when statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity. This rationale does not apply to penal statutes. In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing 'on their faces' statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. As has been pointed out, vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant. "On its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the ‘case and controversy’ requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. (Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, 2001)

Banning the publishing of survey results is also overbroad because it does not meet the O’Brien test, since it suppresses one type of expression while allowing others like editorials. (SWS v. COMELEC, G.R. No. 147571, May 5, 2001) Summary of Rules General Rule: The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapplicable for testing the validity of penal statutes. Rationale: All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect or the fear of possible prosecution. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful conduct. Exceptions: a. When a penal statute is challenged as applied b. When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the overbreadth and vagueness doctrine is acceptable. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) The facial challenge has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights because of the expanded scope of judicial power. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) As Applied v. Facial Challenge Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very

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existence may cause others not before the court to refrain from constitutionally protected speech or activities. General Rule: In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing. Exception: A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute. Rationale: To counter the "chilling effect" on protected speech that comes from statutes violating free speech. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)

4. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests. As articulated in our jurisprudence, the Court has applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, the Court has concluded that it has generally adhered to the clear and present danger test. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

a. Clear and Present Danger Test Concept This test is used for statements against lower courts. Whether the words used are used in such circ*mstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. “Clear” connotes a causal connection with the danger of the substantive evil arising from the

utterance questioned. “Present” refers to the time element that is identified with imminent and immediate danger. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969) Applies to Content-Based Regulation; Presumed Unconstitutional A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) As Applied to Broadcast Media Radio station DYRE was summarily closed for national security reasons because it allegedly aired subversive programs. The Court ruled that all forms of media are entitled to the protection of the freedom of speech and expression clause. The clear and present danger test may be applied to test the limits of free speech. That the words are used in such circ*mstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. The SC recognized that the government also has a right to be protected against broadcasts that incite the listeners to violently overthrow it. However, the clear and present danger test is not an all-embracing interpretation that is applicable to all utterances in all forums. Freedom of television and radio broadcasting is lesser in scope than the freedom accorded to newspaper and print media. Radio broadcasting receives the most limited protection from the free expression clause. Broadcast media have a uniquely pervasive presence in the lives of all citizens – it reaches even the privacy of the home. Broadcast media is uniquely accessible to all, even children – selectivity is more difficult in radio and TV. In other words, the audiences of radio and TV have lesser opportunity to cogitate, analyze, and reject the utterances. (Eastern Broadcasting v. Dans Jr., G.R. No. L59329, July 19, 1985) Applied to Cases involving the Court’s Power of Contempt The power of contempt should be balanced with the right to freedom of expression, especially when it may have the effect of stifling comment on public matters. The power to punish for contempt is not exercised without careful consideration of the

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circ*mstances of the allegedly contumacious act, and the purpose of punishing the act. Especially where freedom of speech and press is involved, this Court has given a restrictive interpretation as to what constitutes contempt. An article which does not impede, obstruct, or degrade the administration of justice is not contumacious. The question in every case is whether the words used are used in such circ*mstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree. (Roque v. Chief of Staff, G.R. No. 214986, February 15, 2017)

b. Dangerous Tendency Rule Concept If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil the utterance be to bring about the substantive evil which the legislative body seeks to prevent. (Cabansag v. Fernandez, G.R. No. L-8974, Oct. 18, 1957) This is used for statements against the Supreme Court and permits the application of restrictions when: a. There is a rational connection between the speech restrained and the danger apprehended; and b. The tendency of one to create the other is shown. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969) Applied to the Cases Involving Independence of the Court The "dangerous tendency" rule has been adopted in cases where extreme difficulty is confronted determining where the freedom of expression ends and the right of courts to protect their independence begins. There must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against

contempt. (Cabansag v. Fernandez, G.R. No. L8974, Oct. 18, 1957) Applied to Seditious Speech Citizen Perez made this remark at a political discussion at a town municipio: “and the Filipinos, like myself, must use bolos for cutting off Wood’s head for having recommended a bad thing for the Philippines.” The court held that criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. In this case, the Court found a seditious tendency which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

c. Balancing of Interests Test Concept The balancing of interests test is used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Republic Act 4880 among other things prohibits the too early nomination of political candidates and limits the period for partisan political activity. Its purpose is to prevent the debasem*nt of the political process. In determining the validity of the law, free speech as a social value must be weighed against the political process as a social value. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969) The dangerous tendency rule and the clear and present danger rule were evolved in the context of prosecution for seditious speech. They are thus couched in terms of degree of evil and proximity of the evil. But not all evils easily lend themselves, like sedition to measurement of proximity and degree. For legislation therefore whose object is not the prevention of evil measurable in terms of proximity and degree, another test had to be evolved. The balancing of interests serves this purpose. It is used, for instance, for commercial speech. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

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Factors to Consider Although the urgency of the public interest sought to be secured by Congressional power restricting the individual's freedom, and the social importance and value of the freedom so restricted, are to be judged in the concrete, not on the basis of abstractions, a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are: a. The social values and importance of the specific aspect of the particular freedom restricted by the legislation; b. The specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; c. The value and importance of the public interest sought to be secured by the legislation — the reference here is to the nature and gravity of the evil which Congress seeks to prevent; d. Whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and e. Whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom. (J. Castro, Separate Opinion in Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969) Summary TEST Clear and Present Danger

Dangerous Tendency

CRITERION Whether the words used are used in such circ*mstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. There should be a rational connection between the speech restrained and the

Balancing of Interests

danger apprehended and the tendency of one to create the other is shown. Courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation.

5. STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA Four Aspects of Freedom of the Press a. Freedom from prior restraint b. Freedom from punishment subsequent to publication c. Freedom of access to information d. Freedom of circulation. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Print v. Broadcast Media While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media. According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: a. The scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; b. Its "pervasiveness" as a medium; and c. Its unique accessibility to children. According to Philippine jurisprudence, first, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, p*rnography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process.

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Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Clear and Present Danger Rule: Applicable to Broadcast Media IF Content-Based Regulation All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule. (Eastern Broadcasting v. Dans, G.R. No. L-59329 July 19, 1985) However, the clear and present danger rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Motion Pictures Censorship When the MTRCB classified the movie Kapit sa Patalim as "For-Adults-Only," the Supreme Court dismissed this petition for certiorari solely on the ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification. The test to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. a. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. b. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. The basic postulate, wherefore, is that where the movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned — included as they are in freedom of expression — censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public morals, public health or any other legitimate public interest.

(Gonzales v. Katigbak, G.R. No. L-69500 July 22, 1985) A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of a public character. The right of privacy cannot be invoked resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. (Ayer v. Capulong, G.R. No. 82380 April 29, 1988, On the proposed motion picture entitled "The Four Day Revolution" involving Sen. Juan Ponce Enrile) Television Censorship PD No. 1986 gives the MTRCB the power to screen, review and examine all "television programs." By the clear terms of the law, the Board has the power to approve, delete and/or prohibit the exhibition and/or television broadcast of television programs. The law also directs the MTRCB to apply contemporary Filipino cultural values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime. It is significant to note that in Iglesia ni Cristo v. CA, the Court declared that freedom of religion has been accorded a preferred status by the framers of our fundamental laws. Yet despite the fact that freedom of religion has been accorded a preferred status, still the Court, did not exempt the Iglesia ni Cristo’s religious program from petitioner’s review power. If the Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom "The Inside Story" which, is protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status. Thus, MTRCB has power to review both religious shows like the INC program, as well as public affairs and documentary programs like The Inside Story. (MTRCB v. ABS-CBN, G.R. No. 155282, Jan. 17, 2005) Live TV coverage of a criminal case may be allowed...“mere fear of possible undue influence is Page 173 of 479

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not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial.” (In Re: Petition For Radio And TV Coverage Of The Multiple Murder Case Against Zaldy Ampatuan et al., A.M. No. 1011-5-SC, June 14, 2011) Radio Censorship In Santiago v. Far Eastern Broadcasting, the case hinges on whether the petitioner has a clear legal right to broadcast any speech over one of the radio stations owned and operated by the respondent without first submitting the manuscript, and whether there is a corresponding duty devolved by law upon the respondent to permit the petitioner to do so. The Court ruled that it is not the duty of the respondent as a public service corporation to broadcast speeches without requiring the submission of the manuscript thereof in advance, but that, on the contrary, the laws and regulations expressly authorize the respondent to make such requirement. a. Section 2 of Act No. 3180, which is the franchise of the respondent corporation, provides that the broadcasting service shall be open to the general public subject to the general regulations of the grantee for the allotment of time and the class of communications acceptable for broadcasting. b. Commonwealth Act No. 98, where the

Secretary of the Interior "shall examine all programs, sustaining or sponsored, of all broadcasting stations," with the power "to eliminate or cancel from the program such number or parts thereof as in his opinion are neither moral, educational nor entertaining, and prejudicial to public interest." Department Order No. 13, which requires all broadcasting stations to submit daily to the Secretary of the Interior at least twenty-four hours in advance of the actual broadcasting hour, two copies of all programs to be broadcasted by the stations. Further, it is provided that if a program contains any speeches, ... copies of these or a gist thereof, may be required by the Secretary of the Interior to be submitted together with the program. (Santiago v. Far Eastern Broadcasting, G.R. No. L-48683, Nov. 8, 1941)

6. COMMERCIAL SPEECH Commercial speech is speech that does no more than propose a commercial transaction. (Central Hudson Gas v. Public Service Commission, 447 U.S. 557, June 20, 1980) Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. And if it is indispensable to the proper allocation of resources in a free enterprise system, it is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered. (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, May 24, 1976) Accorded Lesser Protection Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. (Central Hudson Gas v. Public Service Commission, 447 U.S. 557, June 20, 1980) Central Hudson Test for a Valid Commercial Speech Regulation For commercial speech to come within the First Amendment: (FISDO) 1. Speech must not be False or misleading or proposing an illegal activity; 2. Governmental Interest sought to be served by the regulation must be Substantial; 3. The regulation must Directly advance the governmental interest asserted; and 4. The regulation must not be Overbroad – not more extensive than is necessary to serve that interest. (Central Hudson Gas v. Public Service Commission, 447 U.S. 557, June 20, 1980)

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7. UNPROTECTED SPEECH a. Hate Speech Words

and

Fighting

HATE SPEECH Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful. (Matal v. Tam, 582 U.S., June 19, 2017) Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, esp. in circ*mstances in which the communication is likely to provoke violence. (Black’s Law Dictionary, 10th ed.) No Hate Speech Exception to Free Speech The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” (Matal v. Tam, 582 U.S., June 19, 2017) FIGHTING WORDS Words which by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. (Chaplinsky v. New Hampshire, 315 U.S. 568, March 9, 1942) Test The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. (Chaplinsky v. New Hampshire, 315 U.S. 568, March 9, 1942) Fighting Words – No Constitutional Protection IF Defamatory or Tortious "Fighting words" are not entitled to constitutional protection and may be penalized. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Fighting words are not subject to subsequent punishment unless they are defamatory or tortious. Fighting words refer to profane or vulgar words that are likely to provoke a violent response from an audience. Profane or vulgar words like "f*ck the draft," when not directed at any particular person, ethnic or religious group, are not subject to subsequent punishment. As aptly stated, "one man’s vulgarity may be another man’s lyric." If profane or vulgar language like "f*ck the draft" is not subject to subsequent punishment, then with more reason it cannot be subject to prior restraint.

Without a law punishing the actual utterance or publication of an expression, an expression cannot be subject to prior restraint because such expression is not unlawful or illegal. (J. Carpio, Separate Opinion in Soriano v. Laguardia, G.R. No. 164785, April 29, 2009; citing Cohen v. California, 403 U.S. 15, June 7, 1971) Summary HATE SPEECH Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful. Protected Speech

FIGHTING WORDS Words which by their very utterance, inflict injury or tend to incite an immediate breach of the peace. Unprotected Speech (if defamatory or tortious)

b. Defamation and Libel Definition A libel is a public and malicious imputation of a crime, or of a vice or a defect, real or imaginary, or any act, omission, condition, status, or circ*mstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. (REVISED PENAL CODE, art. 353) Libel Not a Constitutionally Protected Speech Libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Elements The elements of libel are: (APIM) 1. The Allegation of a discreditable act or condition concerning another; 2. Publication of the charge; 3. Identity of the person defamed; and 4. Existence of Malice. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Proof that Statement is False In the absence of proof that the defendant knew that the statement was false or published with reckless disregard of whether or not it was true, the defendant cannot be held liable for libel. (Guingguing v. Court of Appeals, G.R. No. 128959, Sept. 30, 2005)

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When is Malice Present There is malice when the author of the imputation is prompted by ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. (Alonzo v. CA, G.R. No. 110088, Feb. 1, 1995) Every Defamatory Imputation Presumed Malicious General Rule: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. Exceptions: a. A private communication made by any person to another in the performance of any legal, moral or social duty; and b. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (REVISED PENAL CODE, art. 354) Doctrine of Fair Commentaries The enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The doctrine of fair commentaries means "that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. (Yuchengco v. The Manila Chronicle, G.R. No. 184315, Nov. 25, 2009) Cyberlibel – Only the Original Author is Liable Only the original author of the statement should be prosecuted for libel. Because of the unique culture of cyberspace, the inclusion of those who just shared the statement in the case would have a chilling effect upon them. This makes the law overbroad and therefore in violation of freedom of

expression. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Contempt is Akin to a Case of Libel Contempt is akin to a case of libel for both constitute limitations upon freedom of the press or freedom of expression guaranteed by our Constitution. What is considered a privilege in one may likewise be considered in the other. The principle of privileged communications can also be invoked in contempt charges. When a lawyer has become a public figure for being involved in a public issue, the controversy involving such individual becomes a matter of public interest. Therefore, the media has the right to report the disciplinary case as legitimate news. Such will not be considered as a violation of the confidentiality rule in disciplinary proceedings against lawyers. (Atty. Raymund P. Palad v. Lolit Solis, et al., G.R. No. 206691, Oct. 3, 2016)

Privileged Communications a. Absolutely Communications

Privileged

Those which are not actionable even if the author has acted in bad faith. This classification includes statements made by members of Congress in the discharge of their functions as such, official communications made by public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judicial proceedings, as well as the answers given by witnesses in reply to questions propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive or pertinent to the questions propounded to said witnesses.

b. Qualifiedly Communications

Privileged

Those which contain defamatory imputations but are not actionable unless found to have been made without good intention justifiable motive. To this genre belong "private communications" and "fair and true report without any comments or remarks” under article 354 of the Revised Penal Code. (Manila Bulletin v. Domingo, G.R. No. 170341, July 5, 2017)

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While generally every defamatory imputation is presumed malicious, if the communication is privileged, the presumption does not arise. The plaintiff assumes the burden of proving malice. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Requisites of a Qualifiedly Privileged Communication under Article 354, No. 1 of the Revised Penal Code – “Private Communications In order to prove that a statement falls within the purview of a qualified privileged communication under Article 354, No. 1, the following requisites must concur: (DAG) 1. The person who made the communication had a legal, moral, or social Duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; 2. The communication is Addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought; and 3. The statements in the communication are made in Good faith and without malice. (Syhunliong v. Rivera, G.R. No. 200148, June 4, 2014) Group/Class Libel Where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. (Newsweek v. IAC, G.R. No. L-63559, May 30, 1986) If the group is a very large one, then the alleged libelous statement is considered to have no application to anyone in particular, since one might as well defame all mankind. Not only does the group as such have no action; the plaintiff does not establish any personal reference to himself. As the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two (2) important public policies: a. First, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and b. Second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting

fundamental interests involved in libel cases. (MVRS Publication v. Islamic Da’wah Council of the Philippines, G.R. No. 135306. Jan. 28, 2003) LIBEL AGAINST PUBLIC FIGURES

PUBLIC

OFFICIALS

AND

Public Figure Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention. (Gertz v. Welch, 418 U.S. 323, June 25, 1974) Public Official Those who hold governmental office. (Gertz v. Welch, 418 U.S. 323, June 25, 1974) New York Times Standard – Actual Malice Public officials/figures must prove that the statement was made with ‘actual malice’ in order to recover damages for a defamatory falsehood relating to his official conduct. Actual malice means there was knowledge that it was false or with reckless disregard of whether it was false or not. (NY Times v. Sullivan, 376 U.S. 254, 1964). General Rule: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. Exception: If the defamed is a public figure/official, there is no presumption of malice. Instead, the public official/figure defamed must prove ‘actual malice.’ Fair Commentaries These are privileged and constitute a valid defense in an action for libel or slander. When the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order for it to be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred. The insertion of an old picketing footage in a news report was not libelous because it did not convey anything derogatory in nature, and it was actually simultaneously voiced over by the narration of the news report. The report was also merely quoted from the contents and allegations in the petition and is merely a summary Page 177 of 479

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of the petition. (GMA Network v. Bustos, G.R. No. 146848, Oct. 17, 2006) LIBEL AGAINST PRIVATE INDIVIDUALS New York Times Standard Not Applicable to Defamed Private Individuals So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability (less demanding than the New York Times standard – actual malice) for a publisher or broadcaster of defamatory falsehood injurious to a private individual. The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury. (Gertz v. Welch, 418 U.S. 323, June 25, 1974) Rationale Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery. The state interest in compensating injury to the reputation of private individuals is therefore greater than for public officials and public figures. To extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation and would occasion the additional difficulty of forcing courts to decide on an ad hoc basis which publications and broadcasts address issues of general or public interest and which do not. (Gertz v. Welch, 418 U.S. 323, June 25, 1974)

a. Sedition and Speech Relation to Rebellion

Seditious Speech is an Unprotected Speech Criticism is permitted to penetrate even to the foundations of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. But when the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press and of assembly and petition must yield

to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the constitution and the laws, and the existence of the State. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923) The freedom of speech secured by the Constitution does not confer an absolute right to speak or publish without responsibility whatever one may choose. It is not unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. So statutes against sedition have guaranty, although they should not be interpreted so as to agitate for institutional changes. Thus, another limit of free speech and writing is seditious speech which is prohibited under Art. 142 of the Revised Penal Code. (Mendoza v. People, G.R. No. L-2990, Dec. 17, 1951) When a fictitious suicide photo and letter were published in newspapers of general circulation expressing disappointment in the Roxas administration and instructing a fictitious wife to teach their children to burn photos of the President, the Court held that such act constitutes inciting to sedition. It suggests or incites rebellious conspiracies or riots and tends to turn the people against the constituted authorities, or to provoke violence from opposition groups who may seek to silence the writer, which is the sum and substance of the offense under consideration. (Mendoza v. People, G.R. No. L-2990, Dec. 17, 1951) Reason Why Seditious Utterances are Prohibited Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the Government without waiting until there is a present and immediate danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the Government, when there would be neither prosecuting officers nor courts for the enforcement of the law. (Gitlow vs. New York, 268 U.S. 652, June 7, 1925) Tests Applied to Seditious Words 1. Clear and Present Danger Test A political party applied for a permit to hold a public meeting in Manila. The Mayor refused to grant permit. The refusal of the Mayor to grant permit for the holding of a public meeting was predicated upon fear that in view of the bitterness of the speeches expected from the minority men who were fresh from a political defeat and were smarting with

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charges of fraud against those in power, there might be breach of the peace and of public order. The Court ruled that the danger apprehended was not imminent and the evil to be prevented was not a serious one. Thus, the Mayor was ordered by the Supreme Court in mandamus proceedings to issue a permit. (Primicias v. Fugoso, G.R. No. L-1800, Jan. 27, 1948) 2. Dangerous Tendency Test Citizen Perez made this remark at a political discussion at a town municipio: “and the Filipinos, like myself, must use bolos for cutting off Wood’s head for having recommended a bad thing for the Philippines.” The court held that criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. In this case, the Court found a seditious tendency which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923) Utterances Must Incite the Public to Commit Sedition It is not inciting to sedition when it is not proved that the defendant incited the people to rise publicly and tumultuously in order to attain any of the ends mentioned in Art. 139 (sedition), which are: a. To prevent the promulgation or execution of any law or the holding of any popular election; b. To prevent the National Government, or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order; c. To inflict any act of hate or revenge upon the person or property of any public officer or employee; d. To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and e. To despoil, for any political or social end, any person, municipality or province, or the National Government of all its property or any part thereof. (People vs. Arrogante, 39 O.G. 1974)

Obscenity/p*rnography

Concept; Miller Test for Obscenity There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (PILV) 1. Whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the Prurient Interest; 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state Law; and 3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific Value. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006; Miller v. California, 413 U.S. 15, June 21, 1973) But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently offensive. No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct. Examples included (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judge’s sound discretion. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, (e.g., in art, literature and scientific works), is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. (Gonzales v. Kalaw-Katigbak, G.R. No. L-69500, Jul. 22, 1985) Relative Obscenity The Court noted that there was “no perfect definition of obscenity” and that ultimately therefore “obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on Page 179 of 479

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the judge’s sound discretion.” (Soriano v. Laguardia, G.R. No. 164785, April 29, 2009) Obscenity is an Unprotected Speech As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation. One such regulation is Article 201 of the Revised Penal Code. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006) Necessarily, that the confiscated materials are obscene must be proved. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006) Procedure for Conviction Under Art. 201 a. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; b. The authorities must convince the court that the materials sought to be seized are "obscene", and pose a clear and present danger of an evil substantive enough to warrant State interference and action; c. The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved on a case-tocase basis and on His Honor's sound discretion. d. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; e. The proper suit is then brought in the court under Article 201 of the Revised Penal Code; f. Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed "obscene." (Pita v. CA, G.R. No. 80806, Oct. 5, 1989) Mere Possession Not Punishable; Publicity is Necessary Mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201 of the RPC, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity. The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited

to the public. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)

G. FREEDOM OF RELIGION No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. (PHIL. CONST., art. III, § 5) The constitutional assurance of religious freedom provides two guarantees: 1. The Establishment Clause 2. The Free Exercise Clause (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz involving the Establishment Clause, defined religion as a profession of faith to an active power that binds and elevates man to his Creator. Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila, a case involving the Free Exercise clause. The latter also cited the American case of Davis v. Beason in defining religion, viz: it has reference to one’s views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will. The Davis definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) Every violation of the free exercise clause involves compulsion, whereas a violation of the nonestablishment clause need not involve compulsion. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Accorded Preferred Status Freedom of religion is accorded preferred status by the framers of our fundamental law. And the Supreme Court has consistently affirmed this preferred status, well aware that it is designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)

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Religious freedom, although not unlimited, is a fundamental personal right and liberty and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006)

1. NON-ESTABLISHMENT CLAUSE AND FREE EXERCISE CLAUSES Non-establishment clause Concept The establishment clause principally prohibits the State from sponsoring any religion or favoring any religion as against other religions. It mandates a strict neutrality in affairs among religious groups. Essentially, it prohibits the establishment of a state religion and the use of public resources for the support or prohibition of a religion. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Basis In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith dissension:

Voluntarism

Voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolability of the human conscience which is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms. As a social value, it means that the growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage.

b. Insulation of the Political Process From Interfaith Dissension Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics. Non-

establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) Prohibited Acts of the State Under the Establishment Clause The non-establishment clause reinforces the wall of separation between Church and State. It simply means that: a. The State cannot set up a Church. b. The State cannot pass laws which aid one religion, aid all religion, or prefer one religion over another. c. The State cannot force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. d. The State cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. e. No tax in any amount, large or small, can be levied to support any religious activity or institution whatever they may be called or whatever form they may adopt or teach or practice religion. f. The State cannot openly or secretly participate in the affairs of any religious organization or group and vice versa. Its minimal sense is that the State cannot establish or sponsor an official religion. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) In effect, what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be summarized in four general propositions: a. Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension. b. Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension. c. Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension. d. Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension. (Re: Letter of Tony Valenciano; citing Bernas, The Page 181 of 479

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1987 Constitution of the Republic of the Philippines, 2009) Limiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period. It cannot be assumed that a substantial structure has no value after that period and hence the unrestricted use of a valuable property is in effect a contribution of some value to a religious body. Congress did not base the 20-year provision on any contrary conclusion. If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the effect of advancing religion. To this extent the Act therefore trespasses on the Religion Clauses. The restrictive obligations of a recipient institution under §751 (a) (2) cannot, compatibly with the Religion Clauses, expire while the building has substantial value. The limitation of federal interest in the facilities to a period of 20 years violates the Religion Clauses of the First Amendment, as the unrestricted use of valuable property after 20 years is in effect a contribution to a religious body. (Tilton v. Richardson, 403 U.S. 672, June 28, 1971) When viewed in its overall context, the creche display violates the Establishment Clause. The creche angel's words endorse a patently Christian message: Glory to God for the birth of Jesus Christ. Moreover, nothing in the creche's setting detracts from that message. Although the government may acknowledge Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. (County of Allegheny v. ACLU, 492 U.S. 573, July 2, 1989) It is not necessary that there be a direct governmental compulsion for the non-establishment clause to be violated. Enactment of laws which coerce or influence, directly or indirectly, any individual to follow a religion or irreligion is sufficient for the said clause to be violated. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) The expulsion or excommunication of members of a religious institution or organization is a matter best left to the discretion of church officials, and the laws and canons of said institution or organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official functions. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

Permitted Acts of the State Under the Establishment Clause

a. Constitutionally Created Tax Exemptions Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (PHIL. CONST., art. VI, § 28[3]) Limited Public Aid to Chaplaincies No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (PHIL. CONST., art. VI, § 29[2]) Religious Instruction in Public Elementary and High Schools At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. (PHIL. CONST., art. XIV, § 3[3]) Ownership of Sectarian Educational Institutions Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. (PHIL. CONST., art. XIV, §4[2])

b. Jurisprudence The holding of Catholic masses at the basem*nt of the QC Hall of Justice is not a case of establishment, but merely accommodation. a. There is no law, ordinance or circular issued by any duly constitutive authorities expressly mandating that judiciary

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employees attend the Catholic masses at the basem*nt. When judiciary employees attend the masses to profess their faith, it is at their own initiative, without any coercion from the judges or administrative officers. No government funds are being spent because the lightings and air conditioning continue to be operational even if there are no religious rituals there. The basem*nt has neither been converted into a Roman Catholic chapel nor has it been permanently appropriated for the exclusive use of its faithful. The allowance of the masses has not prejudiced other religions In no case shall a particular part of a public building be a permanent place for worship for the benefit of any and all religious groups. There shall also be no permanent display of religious icons in all halls of justice in the country. In case of religious rituals, religious icons and images may be displayed but their presentation is limited only during the celebration of such activities. After any religious affair, the icons and images shall be hidden or concealed from public view. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)

Aglipay of the Philippine Independent Church sought to prohibit the issuance and sale of such stamps commemorating a Catholic Eucharistic Congress for violating the command that no public money should be appropriated to support any system of religion. The SC held that the statute contemplates no religious purpose. The stamps were not sold for the benefit of the Catholic Church, but merely to advertise the Philippines as the seat of the Eucharistic Congress. Thus, the resulting propaganda possibly in favor of the Catholic Church is merely incidental and should not frustrate the main purpose of the law, which is to generate profit and boost tourism. (Aglipay v. Ruiz, G.R. No. L45459, March 13, 1937) Government programs that neutrally provide benefits to a broad class of citizens and without reference to religion do not violate the nonestablishment clause, as when government furnishes a disabled child enrolled in a sectarian school with a sign language interpreter to facilitate his education because the service is part of a general government program that neutrally

distributes benefits to any child qualifying as disabled under the IDEA, without regard to the sectarian or non-sectarian or public or non-public nature of the school the child attends. Neither does the IDEA create a financial incentive for parents to choose a sectarian school. Most cases, where governmental aids were struck down, challenged programs which gave direct grants of government aid, relieving sectarian schools of costs they otherwise would have borne. In this case, the child is the primary beneficiary and whatever benefits that may accrue to the school is merely incidental. (Zobrest, et al. v. Catalina Foothills School District, 509 U.S. 1, June 18, 1993) If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then any activity intended to facilitate the worship of the patron saint (such as the acquisition and display of his image) cannot be branded as illegal. The barrio fiesta is a socio-religious affair. Its celebration is an ingrained tradition in rural communities. The fiesta relieves the monotony and drudgery of the lives of the masses. Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. (Garces v. Estenzo, G.R. No. L53487, May 25, 1981) The express purpose of the statute was the furtherance of educational opportunities for the young, and the law merely makes available to all children the benefits of a general program to lend school books free of charge, and the financial benefit is to parents and children, not to schools. Parochial schools, in addition to their sectarian function, perform the task of secular education, and, on the basis of this meager record, the Court cannot agree with appellants that all teaching in a sectarian school is religious or that the intertwining of secular and religious training is such that secular textbooks furnished to students are in fact instrumental in teaching religion. (Board of Education v. Allen, 392 U.S. 236, June 10, 1968) The menorah display does not have the prohibited effect of endorsing religion, given its "particular physical setting." Its combined display with a Christmas tree and a sign saluting liberty does not impermissibly endorse both the Christian and Jewish faiths, but simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society. The widely accepted view of the Christmas tree as the preeminent secular Page 183 of 479

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symbol of the Christmas season emphasizes this point. The tree, moreover, by virtue of its size and central position in the display, is clearly the predominant element, and the placement of the menorah beside it is readily understood as simply a recognition that Christmas is not the only traditional way of celebrating the season. The absence of a more secular alternative to the menorah negates the inference of endorsem*nt. Similarly, the presence of the mayor's sign confirms that in the particular context the government's association with a religious symbol does not represent sponsorship of religious beliefs but simply a recognition of cultural diversity. Given all these considerations, it is not sufficiently likely that a reasonable observer would view the combined display as an endorsem*nt or disapproval of his individual religious choices. (County of Allegheny v. ACLU, 492 U.S. 573, July 2, 1989) The RH Law does not violate the Establishment Clause. The petitioners are misguided in their supposition that the State cannot enhance its population control program through the RH Law simply because the promotion of contraceptive use is contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular objectives without being dictated upon by the policies of any one religion. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

Free Exercise Clause Concept The right to religious profession and worship has a two-fold aspect: freedom to believe and freedom to act on one’s belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) The court determines whether an act is a religious ceremony and not any religious group or sect, or a follower of the said group or sect. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Freedom to believe Absolute as long as the belief is confined within the realm of thought. The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. "Men may believe what they cannot prove." Everyone has a right to his beliefs and he may not be called to account because he cannot prove what he believes. (Re: Letter of

Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) Freedom to act on one's beliefs But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) Purpose The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs and proscribes government from questioning a person’s beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) However, a law advancing a legitimate governmental interest is not necessarily invalid as one interfering with the free exercise of religion merely because it also has an incidental and detrimental effect on the same. (Centeno v. Villalonp*rnillos, G.R. No. 113092, Sept. 1, 1994) Benevolent neutrality and claims of religious freedom cannot shield respondent judge from liability for misconduct under our laws. She knowingly entered into a civil marriage with her first husband. She knew its effects under our laws. She had sexual relations with her second husband while her first marriage was subsisting. She cannot claim that engaging in sexual relations with another person during the subsistence of a marriage is an exercise of her religious expression. Legal implications and obligations attach to any person who chooses to enter civil marriages. This is regardless of how civil marriages are treated in that person’s religion. Also, as a lawyer and a judge, is expected to abide by the law. Her conduct affects the credibility of the courts in dispensing justice. Thus, in finding respondent administratively liable for violation of her marriage obligations under our laws, this court protects the credibility of the judiciary in administering justice. (Perfecto v. Esidera, A.M. NO. RTJ-15-2417, July 22, 2015)

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Basis The basis of the free exercise clause is the respect for the inviolability of the human conscience. Under this part of religious freedom guarantee, the State is prohibited from unduly interfering with the outside manifestations of one's belief and faith. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Permitted Acts of the State Under the Free Exercise Clause The free exercise clause does not relieve one of the obligations to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids): 1. If the law is not specifically directed to religious practice. 2. If the law is constitutional as applied to those who engage in the specified act for non-religious purposes. If the law is not specifically directed to religious practice and is applied equally to all, regardless of whether they do the act for religious or non-religious purposes, it does not offend the free exercise clause. The balancing of interests test, whereby government actions that substantially burden a religious practice must be justified by a compelling governmental interest, is inapplicable to an acrossthe-board criminal prohibition of a particular form of conduct. Otherwise, this would create an extraordinary right to ignore general laws in the name of religion for as long as no compelling State interest intervenes. (Employment Division v. Smith, 494 U.S. 872, April 17, 1990) A law that burdens religious practice need not be justified by a compelling governmental interest, if it is a) neutral and b) of general applicability. However, when the law is not neutral or not of general application, the same must undergo the most rigorous of scrutiny: 1. It must be justified by a compelling governmental interest. 2. It must be narrowly tailored to advance the said interest. (Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, June 11 1993) The Supreme Court upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any group. (Victoriano v. Elizalde Rope Workers’ Union, G.R. No. L-2524, Sept. 12, 1974)

An exemption may be accorded to the Jehovah’s Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however ‘bizarre’ those beliefs may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. (Ebralinag v. Division Superintendent, G.R. No. 95770, March 1, 1993) City Ordinance No. 3000, as amended, which requires obtaining of a Mayor's permit before any person can engage in any of the businesses, trades or occupations enumerated therein, does not impose any charge upon the enjoyment of a right granted by the Constitution, nor tax the exercise of religious practices. Hence, it cannot be considered unconstitutional, even if applied to plaintiff Society. (American Bible Society v. City of Manila, G.R. No. L-9637, April 30, 1957) The First Amendment does not prohibit the challenged regulation from being applied to petitioner even though its effect is to restrict the wearing of the headgear (yarmulke) required by his religious beliefs. That Amendment does not require the military to accommodate such practices as wearing a yarmulke in the face of its view that they would detract from the uniformity sought by dress regulations. Here, the Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and the challenged regulation reasonably and even-handedly regulates dress in the interest of the military's perceived need for uniformity. (Goldman v. Weinberger, 475 U.S. 503, March 25, 1986) Not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make such act immune from any secular regulation. The religious also have a secular existence. They exist within a society that is regulated by law. The tarpaulin, on its face, does not convey any religious doctrine of the Catholic church. That the position of the Catholic church appears to coincide with the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within the ambit of religious speech. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) Prohibited Acts of the State Under the Free Exercise Clause A state statute which forbids any person to solicit money or valuables for any alleged religious cause, unless a certificate therefor shall first have been procured from a designated official, who is required to determine whether such cause is a religious one and who may withhold his approval if he determines that it is not, is a previous restraint upon the free Page 185 of 479

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exercise of religion and a deprivation of liberty without due process of law in violation of the Fourteenth Amendment. (Cantwell v. Connecticut, 310 U.S. 296, May 19, 1940) The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. Thus, the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents. This course was required by the First Amendment's guarantee of religious freedom. (United States v. Ballard, 322 U.S. 78, April 24, 1944) The provisions of City Ordinance No. 2529, as amended, which requires the payment of license fee for conducting the business of general merchandise, cannot be applied to plaintiff society, for in doing so, it would impair its free exercise and enjoyment of its religious profession and worship, as well as its rights of dissemination of religious beliefs. (American Bible Society v. City of Manila, G.R. No. L-9637, April 30, 1957) The State's claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. (Wisconsin v. Yoder, 406 U.S. 205, May 15, 1972) The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. That this religious exercise has been targeted is evidenced by Resolution 87-66's statements of "concern" and "commitment," and by the use of the words "sacrifice" and "ritual" in Ordinances 87-40, 87-52, and 87-71. Moreover, the latter ordinances' various prohibitions, definitions, and exemptions demonstrate that they were "gerrymandered" with care to proscribe religious killings of animals by Santeria church members but to exclude almost all other animal killings. Although

Ordinance 87-72 appears to apply to substantial nonreligious conduct and not to be overbroad, it must also be invalidated because it functions in tandem with the other ordinances to suppress Santeria religious worship. (Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, June 11 1993)

2. BENEVOLENT NEUTRALITY AND CONSCIENTIOUS OBJECTORS Benevolent neutrality protects religious realities, tradition and established practice with a flexible reading of the principle. Accommodations are government policies that take religion specifically into account not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. The government may take religion into account to exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish. Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in which the minority finds itself. Benevolent neutrality gives room for accommodation of religious exercises as required by the Free Exercise Clause. It allows breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. Although the Philippines’ constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception when the religion clauses justify it.

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The Court thus lays down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed above, but more importantly, because our constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty not only for a minority, however small – not only for a majority, however large – but for each of us to the greatest extent possible within flexible constitutional limits. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) Sherbert Test This is the applicable test for benevolent neutrality. The test involves the following: 1. Does the law burden the person of his free exercise of religion; 2. Is the person sincere in his belief; and 3. Does the State have a compelling interest in implementing the law/regulation/policy? (Estrada v. Escritor, A.M. No. P-02-1651, Aug. 4, 2003) Conscientious objectors A person who for moral or religious reasons is opposed to participating in any war, and who may be excused from military conscription but remains subject to service in civil work for the nation’s health, safety or interest. (Black’s Law Dictionary, 9th ed.) RH Law Sections 7, 23 and 24 commonly mandate that a hospital or a medical practitioner to immediately refer a person seeking health care and services under the law to another accessible healthcare provider despite their conscientious objections based on religious or ethical beliefs. In this case, the conscientious objector's claim to religious freedom would warrant an exemption from obligations under the RH Law, unless the government succeeds in demonstrating a more compelling state interest in the accomplishment of an important secular objective. Necessarily so, the plea of conscientious objectors for exemption from the RH Law deserves no less than strict scrutiny. The obligation to refer imposed by the RH Law violates the religious belief and conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient seeking information on modem reproductive health products, services, procedures and methods, his

conscience is immediately burdened as he has been compelled to perform an act against his beliefs. In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the State, on the other, to provide access and information on reproductive health products, services, procedures and methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is of the strong view that the religious freedom of health providers, whether public or private, should be accorded primacy. Accordingly, a conscientious objector should be exempt from compliance with the mandates of the RH Law. If he would be compelled to act contrary to his religious belief and conviction, it would be violative of "the principle of non-coercion" enshrined in the constitutional right to free exercise of religion. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Conscientious Objection to Military Service Escritor was the court interpreter at the RTC of Las Pinas. A complaint for disgraceful and immoral conduct under the Revised Administrative Code was filed against Escritor because of living with a man not her husband. As a defense, she asserted that this conjugal arrangement was in conformity with her religious congregation which was the Jehovah’s witnesses. In discussing the Free Exercise Clause, the court tackled United States v. Seeger, which involved four men who claimed "conscientious objector" status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that "you could call (it) a belief in a Supreme Being or God. These just do not happen to be the words that I use." Forest Peter, another one of the four claimed that after considerable meditation and reflection "on values derived from the Western religious and philosophical tradition," he determined that it would be "a violation of his moral code to take human life and that he considered this belief superior to any obligation to the state." The Court avoided a constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt from combat anyone "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." (Estrada v. Escritor A.M. No. P-021651, June 22, 2006. See also Gerona v. Secretary of Education, G.R. No. L-13954, Aug. 12, 1959)

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As seen in U.S. v. Seeger, supra, it may also be used as a ground for exemption from compulsory military service. It also includes those with a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption. (380 U.S. 163, March 8, 1965)

3. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION TESTS FOR CONSTITUTIONALITY OF STATUTES Abington Test To withstand the strictures of the Establishment Clause: (SAIR) 1. There must be a Secular legislative purpose; and 2. A primary effect that neither Advances nor Inhibits Religion. If the purpose and the primary effect of the enactment is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circ*mscribed by the Constitution. (School Dist. of Abington Tp. v. Schempp, 374 U.S. 203, June 17, 1963) Lemon Test The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. The test for determining whether a law meets the requirements of the Establishment Clause is that: (SAIREE) 1. The statute must have a Secular legislative

purpose; 2. Its primary or principal effect must be one that

neither Advances nor Inhibits Religion; and 3. The statute must not foster an Excessive Entanglement with religion. (Lemon v. Kurtzman, 403 U.S. 602, June 28, 1971) Agostini Test for Excessive Entanglement To determine/assess excessive entanglement, the following must be taken into consideration: 1. The character and purposes of the benefitted institutions; 2. The nature of the aid that the State provides; and 3. The resulting relationship between the government and religion, e. g., whether it was neutral and nonideological. (Agostini v. Felton, 521 U.S. 203, June 23, 1997)

Mitchell Test for Determining a Statute’s Effect Three primary criteria for determining whether a statute/government aid has the effect of advancing religion: 1. If it results in governmental indoctrination; 2. If it defines its recipients by reference to religion; or 3. If it creates an excessive entanglement. The US Supreme Court further held that under the neutrality principle, aid that is offered to a broad range of groups or persons without regard to religion are valid. One way to assure the said neutrality is through the principle of private choice, wherein the government is not considered to have provided any support of religion when aid to schools, even if direct, is a) neutrally available and b) before reaching or benefitting any religious school, first passes through the hands of numerous private citizens who are free to direct the aid elsewhere. (Mitchell v. Helms, 530 US 793, June 28 2000) The right of the people to information on matters of public concern shall be recognized. (Phil Const., art. III, § 7) Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Phil Const., art. II, § 28)

H. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law. (PHIL. CONST., art. III, § 6)

1. SCOPE AND LIMITATIONS Rights Guaranteed a. Freedom to choose and change one’s place of abode b. Freedom to travel within the country and outside Liberty of Abode But one can search in vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands — and these women despite their being in a sense lepers of society are nevertheless not chattels but

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Philippine citizens protected by the same constitutional guaranties as are other citizens — to change their domicile from Manila to another locality. (Villavicencio v. Lukban, G.R. No. L-14639, March 25, 1919) The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision. The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so. (Yap Jr. v. Court of Appeals, G.R. No. 141529, June 6, 2001) Right to Travel AO1 does not infringe upon petitioners’ right to travel but merely bars motorcycles, bicycles, tricycles, pedicabs, and any non- motorized vehicles as the mode of traveling along limited access highways. The right to travel does not mean the right to choose any vehicle in traversing a toll way. The right to travel refers to the right to move from one place to another. Petitioners can traverse the toll way any time they choose using private or public four-wheeled vehicles. Petitioners are not denied the right to move from Point A to Point B along the toll way. Petitioners are free to access the toll way, much as the rest of the public can. The mode by which petitioners wish to travel pertains to the manner of using the toll way, a subject that can be validly limited by regulation. (Mirasol v. DPWH, G.R. No. 158793, June 8, 2006) City councils are authorized to enact curfew ordinances (as what respondents have done in this case) and enforce the same through their local officials. In other words, PD 603 provides sufficient statutory basis - as required by the Constitution - to restrict the minors' exercise of the right to travel. Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our Constitution, the strict scrutiny test is the applicable test. (SPARK v. Quezon City, G.R. No. 225442, Aug. 8, 2017) No Right of Return to One’s Country Essentially, the right involved is the right to return to one's country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom

of movement and abode within the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each state" separately from the "right to leave any country, including his own, and to return to his country." (Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989) Limitations a. LIBERTY OF ABODE: Lawful order of the court and within the limits prescribed by law. b. RIGHT TO TRAVEL: May be curtailed even by administrative officers in the interest of national security, public safety, or public health, as may be provided by law. (PHIL. CONST., art. III, § 6)

2. WATCH-LIST AND HOLD DEPARTURE ORDERS Watch-list Orders vs. Hold Departure Orders 1. Watch-list Orders issued against: a. Accused in criminal cases (irrespective of nationality in RTC or below); OR b. Any person with pending case in DOJ 2. Hold Departure Orders issued against: a. Accused on criminal cases (irrespective of nationality in courts below RTC); b. aliens (defendant, respondent, and witness in pending civil or labor case, or any case pending before administrative agency of the government); and c. Any person motu proprio by the Secretary of Justice or request of heads of departments, Constitutional Commissions, Congress, or Supreme Court Both issued by the Secretary of Justice (Department Circular No. 41) Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such Court or officer. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be

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dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes. (Silverio v. CA, G.R. No. 94284, April 8, 1991) [The DOJ] does not have inherent power to issue a hold-departure order, unlike the courts, or to restrict the right to travel in [any way]. It is limited to the powers expressly granted to it by law and may not extend the same on its own accord or by any skewed interpretation of its authority. Without a valid legislation, the DOJ's actions will perpetually be met with legal hurdles to the detriment of the due administration of justice. (Genuino v. De Lima, G.R. No. 197930, April 17, 2018)

RIGHT TO INFORMATION

The right of the people to information on matters of public concern shall be recognized. (PHIL. CONST., art. III, § 7) Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (PHIL. CONST., art. II, § 28) Rights Guaranteed a. Right to information on matters of public concern b. Right of access to official records and documents These are political rights available to citizens only. They are "subject to such limitations as may be provided by law." (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer) Not absolute The constitutional guarantee to information does not open every door to any and all information. It is limited to matters of public concern, and is subject to such limitations as may be provided by law. Likewise, the State’s policy of full public disclosure is restricted to transactions involving public interest, and is further subject to reasonable conditions prescribed by law. (Sereno v. Committee on Trade and Related Matters of NEDA, G.R. No. 175210, Feb. 1, 2016)

1. Scope and limitations Matters of Public Concern The people have the right to information on matters of public concern, and access to official records shall be allowed to citizens as may be provided by law. It is a self-executing provision. The threshold question is, therefore, whether or not the information sought is of public interest or public concern. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. (Legazpi v. CSC, G.R. No. L-72119, May 29, 1987) In case of conflict, there is a need to strike a balance between the right of the people and the interest of the Government to be protected. (Sereno v. Committee on Trade and Related Matters of NEDA, G.R. No. 175210, Feb. 1, 2016) Examples of Matters of Public Concern according to Jurisprudence: a. Loanable funds of GSIS b. Civil service eligibility of sanitarian employees c. Appointments made to public offices and the utilization of public property d. National board examinations such as the CPA Board Exams e. Names of nominees of partylists f. Negotiations leading to the consummation of the transaction (Valmonte v. Belmonte, G.R. No. 74930; Legazpi v. CSC, G.R. No. L-72119; Gonzales v. Narvasa, G.R. No. 140835; Antolin v. Domondon, G.R. No.165036; Bantay Republic v. COMELEC, G.R. No. 177271; Chavez v. PEA and Amari, G.R. No. 133250) Examples of Matters of Public Information according to Jurisprudence: a. Decision and voting slips of the MTRCB board for the classification of movies b. Civil Service eligibility of sanitarians c. Party-list nominees through medium other than the “Certified List” d. GSIS loans granted to former Batasang Pambansa members

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Examination papers and answer keys in the CPA Board Exam f. Definite propositions and “official recommendations” of agencies preceding and even before the consummation of the contract (Aquino-Sarmiento v. Morato, G.R. No. 92541; Legaspi v. CSC, G.R. No. L-72119; Bantay Republic Act or BA-RA 7941 v. COMELEC, G.R. No. 177271,; Valmonte v. Belmonte Jr., G.R. No. 74930,; Antolin v. Domondon, G.R. No.165036; Chavez v. Public Estates Authority, G.R. No. 133250) The right to information is paramount, and that the wiretapping issue is subservient to this right. The “Hello Garci” tapes should be played, because prohibiting its airing would be prior restraint. (Chavez v. Gonzales, G.R. No. 168338) Limitations Restrictions to the right to information may be: a. Based on kinds of information b. Based on access c. Based on reasonable regulation for the convenience of and for order in the office that has custody of the documents (Baldoza v. Dimaano, A.M. No. 1120-MJ, 1976) d. Based on availability. Based on Kinds of Information The constitutional guarantee of the people's right to information do not cover: (BENT DISC) a. b. c. d. e. f. g. h.

Banking transactions Executive Sessions National Security matters Trade secrets Diplomatic correspondence Intelligence information Supreme Court deliberations Closed Door cabinet meetings

There are certain classes of information which may be withheld from the public and even from Congress. These are national security matters or confidential diplomatic matters, trade secrets and banking transactions, the identity of informants in criminal investigations, confidential or classified matters which come to the knowledge of public officials by reason of their office. (Chavez v. PCGG, G.R. No 130716)

Before a definite proposition is reached by an agency, there are no official acts, transactions, or decisions yet which can be accessed by the public under the right to information. Only when there is an official recommendation can a definite proposition arise and, accordingly, the public’s right to information attaches. (DFA v. BCA International, G.R. No. 210858) Without doubt, therefore, ensuring and promoting the free exchange of ideas among the members of the committee tasked to give tariff recommendations to the President were truly imperative. The fact that some members of the committee were not part of the President's Cabinet was of no moment. The Court regarded the meeting of the committee as a Closed-door Cabinet meeting. (Sereno v. Committee on Trade and Related Matters of NEDA, G.R. No. 175210, supra) The chemical composition of special lubricants is a trade secret. The ingredients constitute the very fabric of the company’s business. To compel its disclosure is to cripple their business and to place it at an undue disadvantage. Trade secrets should receive greater protection from discovery because they deserve economic value from being generally unknown and not readily ascertainable by the public. (Air Philippines v. Pennswell, Inc, G.R. No. 172835) Based on Access a. Opportunity to inspect and copy records at his expense (Chavez v. PEA and Amari, supra) b. Not the right to compel custodians of official records to prepare lists, abstracts, summaries and the like (Valmonte v. Belmonte, supra) A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded. The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose. The second pertains to the government agency charged with the custody of public records. (Legaspi v. CSC, G.R. No. 72119, May 29, 1987) The regulations which the Register of Deeds, or the Chief of the General Land Registration Office, or the Secretary of Justice is empowered to promulgate are confined to prescribing the manner and hours of examination to the end that damage to, or loss of, the records may be avoided, that undue interference with the duties of the custodian of the books and

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documents and other employees may be prevented, that the right of other persons entitled to make inspection may be insured, and the like. (Subido v. Ozaeta, G.R. No. L-1631, May 29, 1987) Although citizens are afforded the right to information and, pursuant thereto, are entitled to access to official records, the Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public concern. (Valmonte v. Belmonte Jr., G.R. No. 74930, Feb. 13, 1989) Access to Court Records The right of the public to be informed of the proceedings in court is not founded in the desire or necessity of people to know about the doing of others, but in the necessity of knowing whether its servant, the judge, is properly performing his duty. Unlike court orders and decisions, however, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. For they are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interests. In fine, access to court records may be permitted at the discretion and subject to the supervisory and protective powers of the court, after considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties. (Hilado v. Judge Reyes, G.R. No. 163155) Court deliberations are traditionally recognized as privileged communications (deliberative process privilege). This privilege may be invoked by judges and also by court officials and employees who are privy to these deliberations. It is understood that the rule extends to documents and other communications which are part of or are related to the deliberative process. However, to invoke the privilege, there must be a showing that the document is both predecisional and deliberative. Court records which can be shown to possess both these qualities cannot be the subject of subpoena. (In Re: Production of Court Records and Documents and the Attendance of Court officials and employees as witnesses under the subpoenas of Feb 10,2012 and the various letters for the Impeachment Prosecution Panel dated Jan 19 and 25, 2012, Feb. 14, 2012)

Diplomatic Negotiations It is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be “ample opportunity for discussion before a treaty is approved” – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that “historic confidentiality” would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. (Akbayan v. Aquino, G.R. No. 170516) Negotiations for Treaties and Executive Agreements Information regarding negotiations for treaties and executive agreements prior to conclusion of the agreement is privileged information. (Senate v. Ermita, G.R. No. 169777, April 20, 2006) Deliberative Process Privilege U.S. courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked: a. Predecisional – The communication must be predecisional, i.e., antecedent to the adoption of an agency policy; and b. Deliberative – The communication must be deliberative, i.e., a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. The deliberative process privilege exempts materials that are 'predecisional' and 'deliberative,' but requires disclosure of policy statements and final opinions 'that have the force of law or explain actions that an agency has already taken. As a qualified privilege, the burden falls upon the government agency asserting the deliberative process privilege to prove that the information in question satisfies both requirements - predecisional and deliberative. The agency bears the burden of establishing the character of the decision, the deliberative process involved, and the role played by the documents in the course of that process. It may be overcome upon a showing that the discoverant's interests in disclosure of the materials outweigh the government's interests in their confidentiality. The determination of need must be made flexibly on a case-by-case, ad hoc basis, and the factors relevant to this balancing include: the relevance of the evidence, whether there is reason to believe the documents may shed light on government

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misconduct, whether the information sought is available from other sources and can be obtained without compromising the government's deliberative processes, and the importance of the material to the discoverant's case. (DFA v. BCA International, G.R. No. 210858, June 29, 2016) Presidential Communications Privilege Applies to decision-making of the President; rooted in the constitutional principle of separation of power and the President's unique constitutional role; applies to documents in their entirety, and covers final and post-decisional materials as well as predeliberative ones; meant to encompass only those functions that form the core of presidential authority. Requisites: 1. The communications relate to a "quintessential and non-delegable power" of the President; 2. The communications are "received" by a close advisor of the President; and 3. There is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. (Neri v. Senate Committee, G.R. No. 180643, March 25, 2008) Publication of Laws and Regulations The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette..." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. Publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. (Tanada v. Tuvera, G.R. No. L-63915, April 24, 1985). Other Constitutional Provisions Related to the Right to Information Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (PHIL. CONST., art. II, § 28)

J. EMINENT DOMAIN Private property shall not be taken for public use without just compensation. (PHIL. CONST., art. III, § 9)

1. CONCEPT Eminent domain is the authority and right of the State, as sovereign, to take private property for public use upon observance of due process of law and payment of just compensation. The State's power of eminent domain is limited by the constitutional mandate that private property shall not be taken for public use without just compensation. (Republic v. BPI, G.R. No. 203039, Sept. 11, 2013) Examples of the uses to which the power of eminent domain may be put a. PHIL. CONST., art. XII, § 18: public utilities b. PHIL. CONST., art. XIII, § 4: land reform c. PHIL. CONST., art. XVIII, § 22: idle or abandoned agricultural lands (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Scope and limitations In the hands of Congress the scope of the power is, like the scope of legislative power itself, plenary. (Barlin v. Ramirez, G.R. No. L-2832, November 24, 1906) The exercise of such right is not unlimited, for two mandatory requirements should underlie the Government’s exercise of the power of eminent domain, namely: 1. that it is for a particular public purpose; and 2. that just compensation be paid to the property owner. (Mactan-Cebu International Airport Authority v. Lozada, Sr., G.R. No. 176625, 2010) Who May Exercise (CELPQ) a. Generally, Congress b. Delegated Executive, pursuant to legislation enacted by Congress c. Local government units, pursuant to an ordinance enacted by their respective legislative bodies (under LGC) d. Public corporations, as may be delegated by law e. Quasi-public corporations e.g. PNR, PLDT, Meralco. The delegated power of eminent domain of local government is strictly speaking not a power of

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eminent but of inferior domain — a share merely in eminent domain. Hence, it is only as broad as the authority delegated to it. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

unlawful detainer suit. These actions are summary in nature. Therefore, in this case, the Court cannot award expropriation. Nevertheless, the resolution of this case is without prejudice to the filing of a separate case for expropriation. (PLDT v. Citi Appliance, G.R. No. 214546, October 9, 2019)

Requisites For Valid Exercise: (TaPuCom) 1. There is a Taking of private property 2. Taking is for Public use 3. Payment of just Compensation Necessity a. The necessity must be of public character. b. Political question when power is exercised by Congress; c. Generally justiciable when exercised by a delegate (except when delegation is grant of authority for special purpose). The power of eminent domain is available only when the owner does not want or opposes the sale of his property. Thus, if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract. Where the landowner agrees voluntarily to the taking of his property by the government for public use, he thereby waives his right to the institution of a formal expropriation proceeding covering such property. Failure for a long time of the owner to question the lack of expropriation proceedings covering a property that the government had taken constitutes a waiver of his right to gain back possession. The landowner’s remedy in such case is an action for the payment of just compensation, not ejectment. (Republic of the Philippines v. Primo Mendoza and Maria Lucero, G.R. No. 185091, Aug. 8, 2010) The claim of Telephone Company A’s right of eminent domain cannot be properly resolved in a complaint for forcible entry or unlawful detainer. Eminent domain or expropriation is the inherent right of the state to condemn private property to public use upon payment of just compensation. The power is exercised by the legislature and may be delegated to local governments, other public entities, and public utilities. Expropriation may be judicially claimed only by filing a complaint for expropriation. An expropriation suit falls under the jurisdiction of the regional trial court because it is a case incapable of pecuniary estimation. It deals with the government’s exercise of its authority and right to take property for public use. The right of an expropriator to file a complaint for expropriation is not allowed in an action such as a forcible entry or

The exercise of the right of eminent domain, whether directly by the State or by its authorized agents, is necessarily in derogation of private rights. It is one of the harshest proceedings known to the law. Consequently, when the sovereign delegates the power to a political unit or agency, a strict construction will be given against the agency asserting the power. The authority to condemn is to be strictly construed in favor of the owner and against the condemnor. (Jesus is Lord School v. Municipality of Pasig, G.R. No. 152230, Aug. 9, 2005) Eminent Domain is the taking of private property for public use, thus no expropriation proceeding can continue if the property to be expropriated will not be for public use. Considering that Corp A is no longer using respondent X’s properties for the purpose of building the Substation Project, it may be allowed to discontinue with the expropriation proceedings, subject to the approval of the court. However, in order to determine whether the expropriation may be dismissed, it must not fall under the following exceptions: first, the trial court’s order already became final and executory, second, the government already took possession of the property; and lastly, the expropriation case already caused prejudice to the landowner. (National Power Corporation v. Posada, G.R. No. 191945, March 11, 2015) THERE IS TAKING OF PRIVATE PROPERTY The power of eminent domain must be distinguished from police power. When the State exercises "police power," property is merely "regulated." There is no transfer of ownership. By eminent domain, property is "taken." There is transfer of ownership. "Regulation" is not compensable but "taking" must be compensated. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). In the context of the State's inherent power of eminent domain, there is "taking" where the owner is actually deprived or dispossessed of his property; where there is a practical destruction or a material impairment of the value of his property; or when he is deprived of the ordinary use thereof. (PNOC v. Maglasang, G.R. No. 155407, Nov. 11, 2008) Neither can it be said that the right of eminent domain may be exercised by simply leasing the

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premises to be expropriated. Where, as here, the owner was compensated and not deprived of the ordinary and beneficial use of his property by its being diverted to public use, there is no taking within the constitutional sense. (PNOC v. Maglasang, G.R. No. 155407, Nov. 11, 2008) Elements of Taking (BEAPP) 1. Utilization of the property must be in such a

way as to oust the owner and deprive him of the Beneficial enjoyment of his property; 2. The expropriator Enters the property; 3. Entry is made under warrant or color of legal Authority; 4. Property is devoted to Public use; and 5. The entrance must be Permanent (Republic v. Ortigas & Co., Ltd. Partnership, G.R. No. 171496, March 3, 2014) The owner of a property taken is entitled to be compensated when there is taking of private property for some public purpose. The Constitution proscribes taking of private property without just compensation, any taking must entail a corresponding appropriation for that purpose. When the road or street was delineated upon government request and taken for public use, the government must compensate the owner for his or her sacrifice, lest it violates the constitutional provision against taking without just compensation. (Republic v. Ortigas & Co., Ltd. Partnership, G.R. No. 171496, March 3, 2014) NPC is liable on the basis that its acquisition of a right-of-way easem*nt over the portion of respondents' land was a taking under the power of eminent domain. A right-of-way easem*nt or burden becomes a "taking" under eminent domain when there is material impairment of the value of the property or prevention of the ordinary uses of the property for an indefinite period. The intrusion into the property must be so immediate and direct as to subtract from the owner's full enjoyment of the property and to limit his or her exploitation of it. Hence, due to the nature of the easem*nt done by NPC in this case, which will deprive the normal use of the land for an indefinite period and expose the property owners' lives and limbs to danger, just compensation must be based on the full market value of the affected property. (NPC v Sps. Asoque, G.R. No. 172507, September 14, 2016) Expropriation is not limited to the acquisition of real property with a corresponding transfer of title or possession. The right-of-way easem*nt resulting in a restriction or limitation on property rights over the land traversed by transmission lines also falls within

the ambit of the term expropriation. The ownership of land extends to the surface as well as to the subsoil under it. Underground tunnels impose limitations on the owner’s use of the property for an indefinite period and deprive them of its ordinary use. (NPC v. Lucman Ibrahim, G.R. No. 168732, June 29, 2007) There was a full taking on the part of NPC, notwithstanding that the owners were not completely and actually dispossessed. It is settled that the taking of private property for public use, to be compensable, need not be an actual physical taking or appropriation. (NAPOCOR v. Heirs of Macabangkit Sangkay, G.R. No. 165828, Aug. 24, 2011) Compensable taking includes destruction, restriction, diminution, or interruption of the rights of ownership or of the common and necessary use and enjoyment of the property in a lawful manner, lessening or destroying its value. (NAPOCOR v. Heirs of Macabangkit Sangkay, G.R. No. 165828, Aug. 24, 2011) The Republic may, in the exercise of the sovereign power of eminent domain, require the telephone company to permit interconnection of the government telephone system and that of the PLDT, as the needs of the government service may require, subject to the payment of just compensation to be determined by the court. Nominally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why the said power may not be availed of to impose only a burden upon the owner of condemned property, without loss of title and possession. (Republic v. PLDT, G.R. No. L-18841, Jan. 27, 1969) A regulation that deprives any person of the profitable use of his property constitutes a taking and entitles him to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Similarly, a police regulation that unreasonably restricts the right to use business property for business purposes amounts to a taking of private property, and the owner may recover therefor. (OSG v. Ayala, G.R. No. 177056, Sept. 18, 2009)

2. PUBLIC USE The "public use" requirement for the exercise of the power of eminent domain is a flexible and evolving concept influenced by changing conditions. It is accurate to state then that at present whatever may Page 195 of 479

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be beneficially employed for the general welfare satisfies the requirement of public use. Specifically, urban renewal or redevelopment and the construction of low-cost housing is recognized as a public purpose, not only because of the expanded concept of public use but also because of specific provisions in the Constitution. (Sumulong v. Guerrero, G.R. No. L-48685, Sept. 30, 1987) Public use means “public usefulness, utility or advantage, or what is productive of general benefit; so that any appropriating of private property by the State under its right of eminent domain for purposes of great advantage to the community, is a taking for public use.” (Gohld Realty Co. v. Hartford, 104 A. 2d 365, 368-9 Conn., 1954; Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) The City of Manila, acting through its legislative branch, has the express power to acquire private lands in the city and subdivide these lands into home lots for sale to bona fide tenants or occupants thereof, and to laborers and low-salaried employees of the city. That only a few could actually benefit from the expropriation of the property does not diminish its public use character. It is simply not possible to provide all at once land and shelter for all who need them. Corollary to the expanded notion of public use, expropriation is not anymore confined to vast tracts of land and landed estates. It is therefore of no moment that the land sought to be expropriated in this case is less than half a hectare only. (Phil. Columbian Association v. Hon. Panis, G.R. No. L-106528, Dec. 21, 1993) The purpose in setting up the marker is essentially to recognize the distinctive contribution of the late Felix Manalo to the culture of the Philippines, rather than to commemorate his founding and leadership of the Iglesia ni Cristo. The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most others could well be true but such a peculiar advantage still remains to be merely incidental and secondary in nature. (Manosca v. CA, G.R. No. 106440, Jan. 29, 1996)

3. JUST COMPENSATION Just compensation is the full and fair equivalent of the property sought to be expropriated. The general rule is that the just compensation to which the owner of the condemned property is entitled to is the market value. Market value is that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be paid by the buyer and received by the seller. The general rule, however, is

modified where only a part of a certain property is expropriated. In such a case, the owner is not restricted to compensation for the portion actually taken, he is also entitled to recover the consequential damage, if any, to the remaining part of the property. (Republic v. BPI, G.R. No. 203039, Sept. 11, 2013) The word 'just' is used to modify the meaning of the word 'compensation' to convey the idea that the equivalent to be given for the property to be taken shall be real, substantial, full and ample." (Republic v. San Miguel Vda. De Ramos, G.R. No. 211576, Feb. 19, 2020, citing Evergreen Manufacturing Corp. v. Republic, G.R. Nos. 218628 & 218631, Sept. 6, 2017) To stress, compensation, to be just, it must be of such value as to fully rehabilitate the affected owner; it must be sufficient to make the affected owner whole. (Republic v. San Miguel Vda. De Ramos, G.R. No. 211576, Feb. 19, 2020) Inclusions in the Loss of the affected owner The loss incurred by the affected owner necessarily includes all incidental costs to facilitate the transfer of the expropriated property to the expropriating authority, including the CGT due on the forced sale and other transfer taxes. These costs must be taken into consideration in determining just compensation in the same way these costs are factored into the selling price of real property in an arm's length transaction. Notably, the value of the expropriated property, as declared by the affected owner, is one of the factors listed under Section 5 of RA 8974. (Republic v. San Miguel Vda. De Ramos, G.R. No. 211576, Feb. 19, 2020) If municipal property is acquired in its corporate or private capacity, the State must pay just compensation. But if it is any other property such as public buildings or held by the municipality for the State in trust for the inhabitants, the State is free to dispose of it at will, without any compensation. (Land Bank v. Spouses Orilla, G.R. No. 157206, June 27, 2008) The concept of just compensation does not imply fairness to the property owner alone. Compensation must be just not only to the property owner, but also to the public which ultimately bears the cost of expropriation. (DPWH v. Spouses Tecson, G.R. No. 179334, July 1, 2013) Judicial Function The final determination of just compensation is vested in courts. In the recent case of Alfonso v. Land Bank, this Court ruled that courts may deviate from the basic formula provided by administrative

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agencies if it finds, in its discretion, that other factors must be taken into account in the determination of just compensation. Deviation, however, must be grounded on a reasoned explanation based on the evidence on record. Absent this, the deviation will be considered as grave abuse of discretion. (Land Bank of the Philippines v. Franco, G.R. No. 203242, March 12, 2019) While it is true that "the determination of the amount of just compensation is within the court's discretion, it should not be done arbitrarily or capriciously. Rather, it must always be based on all established rules, upon correct legal principles and competent evidence." The court cannot base its judgment on mere speculations and surmises. (Republic v. Spouses Salvador, G.R. No. 205428, June 7, 2017) Just Compensation in Expropriation by LGUs The exercise of the power of eminent domain by a local government unit is now governed by Section 19 of Republic Act 7160. For properties under expropriation, the law now requires the deposit of an amount equivalent to fifteen percent (15%) of the fair market value of the property based on its current tax declaration. (Knecht v. Municipality of Cainta, G.R. No. 145254, 2006). Includes Payment in Full Without Delay Just compensation does not only refer to the full and fair equivalent of the property taken; it also means, equally if not more than anything, payment in full without delay. (Land Bank of the Philippines v. Gallego, G.R. No. 173226, July 29 2013) Tax Benefit as Just Compensation The tax benefit granted to the establishments can be deemed as their just compensation for private property taken by the State for public use. The taxation power can also be used as an implement for the exercise of the power of eminent domain. (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, April 15, 2005) Excludes Value of Excavated Soil The Court also upheld the CA ruling, which deleted the inclusion of the value of the excavated soil in the payment for just compensation. There is no legal basis to separate the value of the excavated soil from that of the expropriated properties. In the context of expropriation proceedings, the soil has no value separate from that of the expropriated land. Just compensation ordinarily refers to the value of the land to compensate for what the owner actually loses. Such value could only be that which prevailed at the time of the taking. (Republic of the Philippines, represented by the National Irrigation Administration

v. Rural Bank of Kabacan Inc., G.R. No. 185124, Jan. 25, 2012) Who Are Entitled to Just Compensation: a. Owner of the property b. All owning, occupying or claiming to the property who have lawful interest in the property to be condemned (e.g. mortgagee, lessee, vendee under an executory contract). (Vda. De Ouano v. Republic, G.R. No. 168770, Feb. 9, 2011) Payment for Consequential Damages No actual taking of the building is necessary to grant consequential damages. Consequential damages are awarded if as a result of the expropriation, the remaining property of the owner suffers from an impairment or decrease in value. (Republic v. BPI, G.R. No. 203039, Sept. 11, 2013) To determine just compensation, the trial court should first ascertain the market value of the property, to which should be added the consequential damages after deducting therefrom the consequential benefits which may arise from the expropriation. If the consequential benefits exceed the consequential damages, these items should be disregarded altogether as the basic value of the property should be paid in every case. (Republic v. BPI, G.R. No. 203039, Sept. 11, 2013, citing B.H. Berkenkotter & Co. v. Court of Appeals, G.R. No. 89980, Dec. 14, 1992) Consequential damages are only awarded if as a result of the expropriation, the remaining property of the owner suffers from an impairment or decrease in value. In this case, no evidence was submitted to prove any impairment or decrease in value of the subject property as a result of the expropriation. More significantly, given that the payment of capital gains tax on the transfer of the subject property has no effect on the increase or decrease in value of the remaining property, it can hardly be considered as consequential damages that may be awarded to respondents. (Republic v. Spouses Salvador, G.R. No. 205428, June 7, 2017) Likewise, the award of consequential damages is improper because only a portion, and not the entire area, of the respondents' property was expropriated. It must be proven by sufficient evidence that the remaining portion suffers from an impairment or decrease in value. Only 218 sqm. out of the 380 sqm. was expropriated. In order for there to be an award of consequential damages, there must be evidence supporting that the remaining 162 sqm. suffered from any impairment or decrease in value.

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(Republic v. San Miguel Vda. De Ramos, G.R. No. 211576, Feb. 19, 2020)

the Philippines v Manzano, GR 188243, January 24, 2018)

Reckoning period The value of the property must be determined either as of the date of the taking of the property or the filing of the complaint, "whichever came first." (Eslaban v. De Onorio, G.R. No. 146062, June 18, 2001)

The Special Agrarian Court is “required to consider” the facts in CARL and the formula in the administrative issuances. Consideration of these guidelines, however, does not mean that these are the sole bases for arriving at the just compensation. The courts are not precluded from considering other factors. A’s argument on mandatory adherence to the provisions of law and the administrative orders must fail. (Landbank of the Philippines v Manzano, GR 188243, January 24, 2018)

If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. (ROC, Rule 67, § 4) Q: RP filed a Complaint for Expropriation before the RTC against Y and Z who are co-owners of the property. Both Y and Z opposed the valuation made by RP because it was based on the 1974 Tax declaration and not the current fair market value for the year 1980 when the Complaint for expropriation was filed. Y and Z further averred that under PD76, the basis for computing just compensation of private property shall be the current and fair market value declared by the owner. What then is the proper reckoning date of the computation of just compensation, the date of taking, filing of original complaint, or filing of amended complaint? A: Just compensation should be reckoned from the time of the filing of the original complaint. There was no actual taking in this case prior to the filing of the Complaint, thus, the time of taking should be reckoned from the filing of the Complaint. Hence, the value of the property at the time of filing of the original complaint and not the filing of the amended complaint should be considered in determining just compensation due to the respondents. (Republic v. Castillo, G.R. No.190453, Feb 26, 2020.) Just Compensation in Agrarian Cases Under CARL, the final decision on the value of just compensation lies solely on the Special Agrarian Court. There is no need to exhaust administrative remedies through the various Adjudication Board of the Department of Agrarian Reform before a party can go to the Special Agrarian Court for determination of just compensation. (Landbank of

Settled is the rule that when the agrarian reform process is still incomplete, such as in this case where the just compensation due the landowner has yet to be settled, just compensation should be determined and the process be concluded under RA 6657. (Land Bank of the Philippines, v. Heirs of Jesus Alsua, G.R. No. 211351, Feb. 4, 2015) In determining just compensation, the cost of acquisition of the land, the current value of like properties, its nature, actual use and income, the sworn valuation by the owner, the tax declarations, and the assessment made by government assessors, shall be considered. The social and economic benefits contributed by the farmers and the farm workers and by government to the property as well as the non-payment of taxes or loans secured from any government financing institution on the said land shall be considered as additional factors to determine its valuation. (RA 6657, sec. 17, otherwise known as Comprehensive Agrarian Reform Law of 1988) It is not adequate to merely use the formula in an administrative order of the Department of Agrarian Reform or rely on the determination of a land assessor to show a final determination of the amount of just compensation. Courts are still tasked with considering all factors present, which may be stated in formulas provided by administrative agencies. When acting within the bounds of the Comprehensive Agrarian Reform Law, special agrarian courts "are not strictly bound to apply the DAR’s formula to its minute detail, particularly when faced with situations that do not warrant the formula's strict application; they may, in the exercise of their discretion, relax the formula's application to fit the factual situations before them. The Comprehensive Agrarian Reform Law merely provides for guideposts to ascertain the value of properties. Courts are not precluded from considering other factors that may affect the value of property. (Land Bank of the Philippines v. Franco, G.R. No. 203242, March 12, 2019)

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Effect of Non-Payment of Just Compensation Non-payment of just compensation does not entitle the private landowners to recover possession of their expropriated lot. But, the prolonged occupation of the government without instituting expropriation proceedings will entitle the landowner to damages. Such pecuniary loss entitles him to adequate compensation in the form of actual or compensatory damages, which in this case should be the legal interest (6%) on the value of the land at the time of taking, from said point up to full payment. (City of Iloilo v. Besana, G. R. No. 168967, Feb. 12, 2010) While the prevailing doctrine is that "the nonpayment of just compensation does not entitle the private landowner to recover possession of the expropriated lots, however, in cases where the government failed to pay just compensation within five (5) years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. This is in consonance with the principle that "the government cannot keep the property and dishonor the judgment." To be sure, the five-year period limitation will encourage the government to pay just compensation punctually. This is in keeping with justice and equity. After all, it is the duty of the government, whenever it takes property from private persons against their will, to facilitate the payment of just compensation. We defined just compensation as not only the correct determination of the amount to be paid to the property owner but also the payment of the property within a reasonable time. Without prompt payment, compensation cannot be considered "just." (Republic v. Lim, G.R. No. 161656, June 29, 2005) Effect of Delay in Payment of Just Compensation Imposition of legal interest per annum on the just compensation due to the landowner is in the nature of damages for delay of payment. If property is taken for public use before compensation is deposited with the court having jurisdiction over the case, the final compensation must include interests on its just value to be computed from the time the property is taken to the time when compensation is actually paid or deposited with the court. (Landbank of the Philippines v Manzano, GR 188243, January 24, 2018) The foregoing clearly dictates that valuation of the land for purposes of determining just compensation should not include the inflation rate of the Philippine Peso because the delay in payment of the price of expropriated land is sufficiently recompensed

through payment of interest on the market value of the land as of the time of taking from the landowner. (NAPOCOR v. Manalastas, G.R. No. 196140, Jan. 27, 2016) Under Article III, Section 9 of the 1987 Constitution, “private property shall not be taken for public use without just compensation.” The SC notes that for almost 20 years, the DPWH had been enjoying the use of X’s property without paying the full amount of just compensation under the Compromise Agreement. In keeping with substantial justice, the Court imposes the payment of legal interest on the remaining just compensation due to X. (Republic of the Philippines v. Fetalvero, G.R. No. 198008, February 4, 2019.) The concept of delay does not pertain to the length of time that elapsed from the filing of the Complaint until its resolution. Rather, it refers to the fact that property was taken for public use before compensation was deposited with the court having jurisdiction over the case. There will be delay if the property was taken for public use before compensation was paid or deposited with the court. Hence, between the taking of the property and the actual payment, legal interests accrue in order to place the owners in a position as good as the position they were in before the taking occurred. (National Power Corporation v. Heirs of Gregorio Ramoran, G.R. No. 193455, June 13, 2016) The respondents are not entitled to legal interest on the amount of just compensation. The rationale for imposing interest on just compensation is to compensate the property owners for the income that they would have made if they had been properly compensated. In the instant case, however, the respondents received the amount of P457,800.00 before petitioner Republic took possession of the subject property. Otherwise stated, there was full and prompt payment of just compensation at the time of taking. (Republic v. San Miguel Vda. De Ramos, G.R. No. 211576, Feb.19, 2020)

4. EXPROPRIATION BY LOCAL GOVERNMENT UNITS Requisites Before an LGU Can Exercise the Power of Eminent Domain (OPJO): 1. An Ordinance is enacted by the local

legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property.

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2. The power of eminent domain is exercised for

Public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of Just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite Offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. (Local Government Code, sec. 19) Immediate Entry In the case of LGUs, entry into the property may be made before payment provided that a deposit is made in an amount set by the court (15%). The local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated. (LOCAL GOVERNMENT CODE, sec. 19) Limitations on the Exercise of the Eminent Domain Powers of LGUs Order of priority in acquiring land for socialized housing: Private lands rank last in the order of priority for purposes of socialized housing. RA No. 7279 (Urban Development & Housing Act) lays down the mandatory priority in the acquisition of lands: a. Those owned by the government b. Alienable lands of the public domain c. Unregistered, idle, or abandoned lands d. Those within declared Areas of Priority Development, Zonal Improvement, Slum Improvement, or Resettlement Program sites Bagong Lipunan Improvement Sites and Services (BLISS) which have not been acquired e. Privately owned lands (last in the priority) f. Other modes of acquisition must first be exhausted. The City of Manila failed to comply with any of the aforesaid requirements. The exercise of eminent domain cannot override the guarantees of due process conferred upon the property owners. (Heirs of JBL Reyes v. City of Manila, G.R. Nos. 132431 & 137146, Feb. 13, 2004)

JUDICIAL REVIEW Matters (PAN) a. b. c.

That May be Reviewed by the Courts: The Adequacy of the compensation The Necessity of the taking The “Public Use” character of the taking

If the expropriation is pursuant to a specific law passed by Congress, the courts cannot question the public use character of the taking. Any law fixing the amount of just compensation is not binding on the courts because it is a question of fact which is always subject to review by the courts. (Bernas, The 1987 Constitution: A Commentary, 2009) The statements made in tax documents by the assessor may serve as one of the factors to be considered but they cannot exclude or prevail over a court determination made after expert commissioners have examined the property and all pertinent circ*mstances are taken into account and after the parties have had the opportunity to fully plead their cases before a competent and unbiased tribunal. (Manotok v. NHA, G.R. No. L-55166, May 21, 1987) A previous decision is no obstacle to the legislative arm of the Government in thereafter (over two years later in this case) making its own independent assessment of the circ*mstances then prevailing as to the propriety of undertaking the expropriation of the properties in question and thereafter by enacting the corresponding legislation as it did in this case. (Republic v. De Knecht, G.R. No. 87335, Feb. 12, 1990)

EMINENT DOMAIN V. POLICE POWER The two actions are radically different in nature and purpose. The action to recover just compensation is based on the Constitution while the action for damages is predicated on statutory enactments. Indeed, the former arises from the exercise by the State of its power of eminent domain against private property for public use, but the latter emanates from the transgression of a right. The fact that the owner rather than the expropriator brings the former does not change the essential nature of the suit as an inverse condemnation, for the suit is not based on tort, but on the constitutional prohibition against the taking of property without just compensation. It would very well be contrary to the clear language of the Constitution to bar the recovery of just compensation for private property taken for a public use solely on the basis of statutory

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prescription. (NAPOCOR v. Heirs of Mabangkit Sangkay, G.R. No. 165828, Aug. 24, 2011) Article III, Section 9 of the Constitution provides a substantive guarantee that private property that is taken by the state for public use should be paid for with just compensation. If the state does not agree with the property owner on a price, the state, through the competent government agency, should file the proper expropriation action under Rule 67 of the Revised Rules of Court. In case of a taking without the proper expropriation action filed, the property owner may file its own action to question the propriety of the taking or to compel the payment of just compensation. Among these inverse condemnation actions is a complaint for payment of just compensation and damages. When an inverse condemnation is filed, the provisions for the appointment of commissioners under Rule 32 — not Sections 5, 6, 7, or 8 of Rule 67 of the Rules of Court — will be followed. (NPC v. Sps. Asoque, G.R. No. 172507, Sept. 14, 2016)

MISCELLANEOUS APPLICATION General Rule The value must be that as of the time of the filing of the complaint for expropriation. Exception When the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking.

Exceptions to the Exception If the value increased independently of what the expropriator did, then the value is that of the FILING of the case. Even before compensation is given, entry may be made upon the property condemned by depositing the money or an equivalent form of payment such as government bonds.

K. RIGHT TO ASSOCIATION Scope Persons, both in the public and private sectors, may form unions, associations, and societies. The right is recognized as belonging to the people whether employed or unemployed, and whether employed in the government or in the private sector. (Bernas, The 1987 Constitution: A Commentary, 2009)

Does Not Include the Right to Compel Others The provision guarantees the right to form associations. It does not include the right to compel others to form an association. (Bernas, The 1987 Constitution: A Commentary, 2009) Article III, Section 8 guarantees the freedom to associate as well as the freedom not to associate. The provision is not a basis to compel others to form or join an association. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019) Aspect of Right of Liberty The right to form associations shall not be impaired except through a valid exercise of police power. It is therefore an aspect of the general right of liberty. It is also an aspect of the freedom of contract. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Aspect of Freedom of Expression and of Belief Insofar as the associations may have for their object the advancement of beliefs and ideas, the freedom of association is an aspect of the freedom of speech and expression, subject to the same limitation. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Hierarchy of Civil Liberties The Constitution recognizes a hierarchy of values. Hence, the degree of protection an association enjoys depends on the position which the association's objective or activity occupies in the constitutional hierarchy of values. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Not Absolutely Guaranteed to Top-level and Middle Managers The [Constitutional] Commission intended the absolute right to organize of government workers, supervisory employees, and security guards to be constitutionally guaranteed. By implication, no similar absolute constitutional right to organize for labor purposes should be deemed to have been granted to top-level and middle managers. As to them the right of self-organization may be regulated and even abridged conformably to Art. III, § 8. If these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become company-dominated with the presence of managerial employees in Union membership (United Pepsi-Cola Supervisory Union (UPSU) v. Laguesma, G.R. No. 122226, March 25, 1998) Page 201 of 479

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IRR of RA 10951; Sports Shooter Applicant Section 4.10 of the Rules Implementing RA 10951 does not compel a sports shooter applicant to join a gun club or sports shooting association; it only provides that they must submit a certification from the president of a recognized gun club or sports shooting association that he or she is joining the competition. Thus, Section 4.10 does not violate Article III, Section 8 of the Constitution. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019) Registration Not a Limitation to the Right The registration of labor unions is not a limitation to the right of assembly or association, which may be exercised with or without said registration. The latter is merely a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions and the possession of the "rights and privileges granted by law to legitimate labor organizations". Such requirement is a valid exercise of the police power, because the activities in which labor organizations, associations and union of workers are engaged affect public interest, which should be protected. (Philippine Assoc. of Free Labor Unions v. Sec. of Labor, G.R. No. L-22228, Feb. 27, 1969) State Not Obligated to Accord Official Status The right to organize does not equate to the state’s obligation to accord official status to every single association that comes into existence. It is one thing for individuals to galvanize themselves as a collective, but it is another for the group that they formed to not only be formally recognized by the state, but also bedecked with all the benefits and privileges that are attendant to official status. In pursuit of public interest, the state can set reasonable regulations — procedural, formal, and substantive — with which organizations seeking state imprimatur must comply. (Quezon City PTCA Federation, Inc. vs DepEd, G.R. No. 188720, February 23, 2016) B.P. 222 B.P. 222, which prevents political parties and groups from supporting directly or indirectly any barangay candidate’s campaign for election does not violate the right to form associations. [T]he ban is narrow, not total, and has the purpose of preventing the clear and imminent danger of the debasem*nt of the electoral process. It operates only on concerted or group action of political parties. (Occeña v. COMELEC, G.R. No. L-60258, 1984) Automatic or Compulsory Membership

Compulsory membership is an annotation on a lot owner's certificate of title. Hence, petitioners were bound by this annotation. The constitutional guarantee of freedom of association can only be invoked against the State, and does not apply to private transactions, like a sale, where a condition was validly imposed by the vendor. Automatic membership in a homeowners' association does not violate lot owners' right to freedom of association because they were not forced to buy their lots from the developer. (Cezar Yatco Real Estate Services, Inc. v. Bel-Air Village Association, Inc., G.R. No. 211780, Nov. 21, 2018.) A closed shop agreement is legal since it is a valid form of union security. (Villar v. Inciong, G.R. No. L50283-84, April 20, 1983). Organization of the Integrated Bar of the Philippines Legally Unobjectionable Compulsory membership in the Integrated Bar of the Philippines does not violate the freedom of association. [It] has become an imperative means to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility fully and effectively. (In Re: Edillion, AC-1928, December 19, 1980) Right to Strike of Employees in the Public Sector To grant employees of the public sector the right to strike, there must be a clear and direct legislative authority therefor. In the absence of any express legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, employees in the public service may not engage in strikes, walkouts and temporary work stoppages like workers in the private sector. (Bangalisan v. CA, G.R. No. 124678, July 31, 1997). In cases of CSC employees (e.g., SSS, public school teachers) Government employees may, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Government to accede to their demands. (Social Security System Employees Association (SSEA) v. Court of Appeals, G.R. No. 85279, July 28, 1989)

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Other Constitutional Provisions Related to the Right to Association: The State shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. (Phil Const., art. III, § 3, par. 2) The right to self-organization shall not be denied to government employees. (Phil Const., art. IX-B, § 2, par. 5)

L. NON-IMPAIRMENT OF CONTRACTS No law impairing the obligation of contracts shall be passed. (PHIL. CONST., art. 3, § 10) The non-impairment clause is a limit on the exercise of legislative power and not of judicial or quasijudicial power. The SEC, through the hearing panel that heard the petition for approval of the Rehabilitation Plan, was acting as a quasi-judicial body and thus, its order approving the plan cannot constitute an impairment of the right and the freedom to contract. (BPI v. SEC, G.R. No. 164641, 2007) Not absolute Jurisprudence has established that a valid exercise of police power is superior to the obligation of contracts. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Settled is the rule that the non-impairment clause of the Constitution must yield to the loftier purposes targeted by the Government. The right granted by this provision must submit to the demands and necessities of the State's power of regulation. Such authority to regulate businesses extends to the banking industry which, as this Court has time and again emphasized, is undeniably imbued with public interest. (Goldenway v. Merchandising Corporation v. Equitable PCI Bank, G.R. No. 195540, 2013)

Non-Impairment Clause Prevails: a. Against the removal of tax exemptions, where the consideration for the contract is the tax exemption itself b. Regulation on loans

What Constitutes Impairment a. If it changes the terms and conditions of a legal contract either as to the time or mode of performance. b. If it imposes new conditions or dispenses with those expressed c. If it authorizes for its satisfaction something different from that provided in its terms. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) (Clemens v. Nolting, 42 Phil. 702, Jan. 24, 1922)

M. ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. (PHIL. CONST., art. 3, § 11) The new Constitution has expanded the right so that in addition to giving free access to courts it now guarantees free access also to "quasi judicial bodies" and to "adequate legal assistance" as well. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Those protected include low paid employees, domestic servants and laborers. (Cabangis v. Almeda Lopez, G.R. No. 47685, September 20, 1940) ‘Pauper’ vs. ‘Indigent’ They need not be persons so poor that they must be suppored at public expense. "It suffices that plaintiff is indigent... And the difference between 'paupers' and 'indigent' persons is that the latter are 'persons who have no property or sources of income sufficient for their support aside from their own labor though self-supporting when able to work and in employment.'" (Acar v. Rosal, G.R. No. L-21707, March 18,1967) Indigent Party A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the Page 203 of 479

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docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. (ROC, Rule 3, § 21)

Indigent Litigants Exempt From Payment of Legal Fees Indigent litigants whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee; and who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300,000.00) pesos shall be exempt from the payment of legal fees. The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides. To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income abovementioned, and they do not own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant’s affidavit. The current tax declaration, if any, shall be attached to the litigant’s affidavit. (ROC, Rule 141, § 19) Matter of Right If the applicant for exemption meets the salary and property requirements under Section 19 of Rule 141, then the grant of the application is mandatory and is a matter of right. (Algura v. The Local Government Unit of the City of Naga G.R. No. 150135, Oct. 30, 2006) Matter of Discretion On the other hand, when the application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the "indigency test" under Section 21 of Rule 3 – that the applicant has no money or property sufficient and available for food, shelter and basic necessities for himself and his family – and use its sound discretion in determining the merits of the prayer for exemption. (Algura v. The Local Government Unit of the City of Naga G.R. No. 150135, Oct. 30, 2006) Sheriff’s Expenses Sheriff’s expenses are not exacted for any service rendered by the court; they are the amount deposited to the Clerk of Court upon filing of the complaint to defray the actual travel expenses of the sheriff, process server or other court-authorized persons in the service of summons, subpoena and

other court processes that would be issued relative to the trial of the case. Thus, in In Re: Exemption of Cooperatives from Payment of Court and Sheriff’s Fees Payable to the Government in Actions Brought Under R.A. 6938, the Court clarified that sheriff’s expenses are not considered as legal fees. (In Re Letter of Chief Public Attorney Acosta, AM No. 1110-03-O, July 30, 2013)

N. RIGHTS UNDER CUSTODIAL INVESTIGATION (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. (PHIL. CONST., art. 3, § 12) Miranda Rights Under Sec. 12(1) 1. The right to remain silent. 2. The right to have competent and independent counsel preferably of his own choice. 3. The right to be informed of such rights. (People v. Rapeza, G.R. No. 169431, April 3, 2007)

1. MEANING OF CUSTODIAL INVESTIGATION Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to

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operate. (People v. Marra, G.R. No. 108494, Sept. 20, 1994) The invocation of these rights applies during custodial investigation. (People v. Chavez, G.R. No. 207950, Sept. 22, 2014) Applies to Invitation, “Request for Appearance” & Voluntary Surrender Republic Act No. 7438 expanded the definition of custodial investigation to “include the practice of issuing an ‘invitation’ to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the ‘inviting’ officer for any violation of law. This means that even those who voluntarily surrendered before a police officer must be apprised of their Miranda rights. For one, the same pressures of a custodial setting exist in this scenario. (People v. Bitancor, GR. No. 207950; Sept. 22, 2014) The circ*mstances surrounding the appearance of the accused in the police station falls within the definition of custodial investigation. He was identified as a suspect and when he was given a “request for appearance”, he was already singled out as the probable culprit. When he appeared before the police station, the pressure of custodial setting was present. Furthermore, based on his testimony, the police was inside the station during the confrontation. A "request for appearance" issued by law enforcers to a person identified as a suspect is akin to an "invitation." Thus, he is covered by the rights of an accused while under custodial investigation. Any admission obtained from the "request for appearance" without the assistance of counsel is inadmissible in evidence. (Lopez v. People, G.R. No. 212186, June 29, 2016) Does Not Apply to Police Lineups As a rule, a police lineup is not part of the custodial investigation. The right to be assisted by counsel attaches only during custodial investigation and cannot be claimed by the accused during identification in a police line-up because it is not part of the custodial investigation process. This is because during a police line-up, the process has not yet shifted from the investigatory to the accusatory and it is usually the witness or the complainant who is interrogated and who gives a statement in the course of the line-up. (People v. Lara, G.R. No. 199877, Aug. 13, 2012) However, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by

counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel. (Gamboa v. Judge Cruz, G.R. No. L-56291 June 27, 1988)

Investigations can be conducted by: a. Police authorities, including: i. Municipal police ii. Philippine Constabulary b. NBI officers c. CAFGU members d. Barangay Captains (People v. Ochate, G.R. No. 127154, July 30, 2002, Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Instances when the Miranda Rights do not apply: a. The rights are not available before government investigators become involved. Thus, admissions made in an administrative investigation conducted by officials of the Philippine Airlines do not come under Section 12. (People v. Ayson, G.R. No. 85215, July 7, 1989) b. The rights are not available when the confession or admission is made to a private individual. (People v. Tawat, G.R. No. L-62871, May 25, 1984) c. The rights do not apply to a person undergoing audit because an audit examiner is not a law enforcement officer. (Navallo v. Sandiganbayan, G.R. No. 97214, July 16, 1994) d. The rights do not apply to a verbal admission made to a radio announcer who was not part of the investigation. (People v. Ordono, G.R. No. 132154, June 29, 2000) e. The rights do not apply to an admission made to a mayor who is approached not as mayor but as confidante. (People v. Zuela, G.R. No. 112177, Jan. 28, 2000) f. The rights do not apply to an interview recorded on video in the presence of newsmen, but the Supreme Court warned that trial courts should admit similar confessions with extreme caution. (People v. Endino, G.R. No. 133026, Feb. 20, 2001) g. The rights do not apply to persons who voluntarily surrender, where no written confession was sought to be presented in evidence as a result of a formal custodial investigation. (People v. Taylaran, G.R. No. L-49149, Oct. 23, 1981) Page 205 of 479

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The rights do not apply to spontaneous statements, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admits having committed the crime. (People v. Baloloy, G.R. No. 140740, April 12, 2002) Person in a police line-up not entitled to counsel. (Gamboa v. Judge Cruz, G.R. No. L-56291 June 27, 1988) Administrative proceedings. (Cudia v. Superintendent of the PMA, G.R. No. 211362, Feb. 24, 2015) Signing of arrest reports and booking sheets. It is not an extra-judicial statement and cannot be the basis of a judgment of conviction. The Booking Sheet is merely a statement of the accused's being booked and of the date which accompanies the fact of an arrest. (People v. Bandin, G.R. No. 104494, Sept. 10, 1993) Signing of marked money. A person’s right against self-incrimination was not violated for his signing and possession of the marked bills did not constitute a crime; (People v. Linsangan, G.R. No. 88589, G.R. No. 88589 April 16, 199)

Summary of When Rights are Available AVAILABLE NOT AVAILABLE 1. After a person has 1. During a police linebeen taken into up [Exception: custody Once there is a 2. When a person is move among the deprived of his investigators to freedom of action elicit admissions or in any significant confessions from way the suspect] 3. When a person is 2. During issued an invitation administrative for an investigation investigations in connection with 3. Confessions made an offense he is by an accused at suspected to have the time he committed voluntarily 4. When a person surrendered to the voluntarily police or outside surrenders to the the context of a police formal investigation The investigation is 4. Statements made being conducted by to a private person the government with 5. Signing of arrest respect to a criminal reports and offense (police, DOJ, booking sheets NBI)

Signing and possession of marked money When Rights End The Criminal Process includes: a. Investigation prior to the filing of charges b. Preliminary examination and investigation after charges are filed c. Period of trial

2. RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION The Miranda doctrine requires that: (S3A) 1. Any person under custodial investigation has the right to remain Silent; 2. Anything he says can and will be used Against him in a court of law; 3. He has the right to talk to an Attorney before being questioned and to have his counsel present when being questioned; and 4. If he cannot Afford an attorney, one will be provided before any questioning if he so desires. (People v. Cabanada, G.R. No. 221424, July 19, 2017) RIGHT TO REMAIN SILENT If the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. (Miranda v. Arizona, 384 U.S. 436, Jun. 13, 1966) Silence Not an Implied Admission of Guilt Clearly, when appellant remained silent when confronted by the accusation of "AAA" at the police station, he was exercising his basic and fundamental right to remain silent. At that stage, his silence should not be taken against him. Thus, it was error on the part of the trial court to state that appellant’s silence should be deemed as implied admission of guilt. (People v. Guillen, G.R. No. 191756, Nov. 25, 2013) A person under investigation has the right to refuse to answer any question. His silence, moreover, may not be used against him. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Must Include an Explanation that Anything Said Can and Will be Used Against Him

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The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. (Miranda v. Arizona, 384 U.S. 436, June 13, 1966)

RIGHT TO COMPETENT AND INDEPENDENT COUNSEL Purpose The right to counsel at all times is intended to preclude the slightest coercion as would lead the accused to admit something false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth. (People v. Mojello, G.R. No. 145566, March 9, 2004) Being independent refers to those who do not have an adverse interest to that of the accused. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Moreover, being independent does not mean that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense. (People v. Mojello, G.R. No. 145566, March 9, 2004) Non-Independent Counsel The Constitution further requires that the counsel be independent; thus, he cannot be: a. A special counsel b. Public or private prosecutor c. Counsel of the police d. A municipal attorney whose interest is admittedly adverse to that of the accused e. Barangay captain f. Lawyer applying for a position in the NBI where it was NBI conducting the investigation (People v. Reyes, G.R. No. 178300, March 17, 2009; People v. Tomaquin, G.R. No. 133188, July 23, 2004; People v. Januario, G.R. No. 98252, Feb. 7, 1997) Competent Counsel: Effective and Vigilant A competent counsel is an effective and vigilant counsel. An "effective and vigilant counsel" necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of

the extrajudicial confession. (People v. Tomaquin, G.R. No. 133188, July 23, 2004) Mandatory; Must be Provided if Person Cannot Afford The right to counsel is mandatory. Thus, if the person under custodial investigation cannot afford the services of a competent and independent counsel, he must be provided with one. (PHIL. CONST., art. III, § 12[1]) Counsel of Choice Not Exclusive The right to counsel does not mean that the accused must personally hire his own counsel. The constitutional requirement is satisfied when a counsel is: 1. Engaged by anyone acting on behalf of the person under investigation; or 2. Appointed by the court upon petition of the said person or by someone on his behalf. (People v. Espiritu, G.R. No. 128287, Feb. 2, 1999) The phrase "preferably of his own choice" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise the tempo of custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest. (People v. Mojello, G.R. No. 145566, March 9, 2004) The Miranda rights or the Section 12(1) rights were conceived for the first of these three phases, that is, when the inquiry is under the control of police officers. It is in this situation that the psychological if not physical atmosphere of custodial investigations, in the absence of proper safeguards, is inherently coercive. Outside of this situation, Section 12(1) no longer applies and Sections 14 and 17 come into play instead. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) RIGHT TO BE INFORMED OF HIS RIGHTS The right to be informed of his rights is more than the routine-reading out of the rights. It implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot be said that the person has been informed of his right. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

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Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. (Miranda v Arizona, 384 U.S. 436, Jun. 13, 1966)

3. REQUISITES OF A VALID WAIVER The rights of persons under custodial investigation cannot be waived except: 1. In writing; and 2. In the presence of counsel. (PHIL. CONST., art. III, § 12[1]) R.A. 7438 Extrajudicial Confession (Sec. 2) Any extrajudicial confession made by a person arrested, detained or under custodial investigation: 1. Shall be in writing; and 2. Signed by such person in the presence of his counsel or in the latter's absence: a. Upon a valid waiver, and b. In the presence of any of the following as chosen by him/her: 1. Parents 2. Elder brothers and sisters 3. Spouse 4. Municipal mayor 5. Municipal judge 6. District school supervisor 7. Priest or minister of the gospel RA 7438 does not propose that the persons mentioned above appear in the alternative or as a substitute for counsel without any condition or clause. It is explicitly stated therein that before the above-mentioned persons can appear two (2) conditions must be met: 1. Counsel of the accused must be absent, and 2. A valid waiver must be executed. (People v. Ordono, G.R. No. 132154, June 29, 2000) Extrajudicial Confession Under the present laws, a confession to be admissible must be: (WAVES) 1. Made in Writing, and in the language known to and understood by the confessant; 2. Made with the Assistance of competent and independent counsel;

3. Given Voluntarily and intelligently where the accused realized the legal significance of his act; 4. Express and categorical; and 5. Signed, or if the confessant does not know how to read and write, thumbmarked by him. (People v. Olivarez, Jr., G.R. No. 77865, Dec. 4, 1998) Burden of Proof: Lies With the Prosecution Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver. Consequently, the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed: 1. The accused willingly and voluntarily submitted his confession; and 2. Knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession. (People v. Jara, G.R. No. L-61356-57, Sept. 30, 1986) A confession is not rendered involuntary merely because defendant was told that he should tell the truth or that it would be better for him to tell the truth. (People v. Calvo, G.R. No. 91694, G.R. No. 91694 March 14, 1997) Effect of Absence of a Valid Waiver: Confession Inadmissible in Evidence In the absence of a valid waiver, any confession obtained during the police custodial investigation relative to the crime, including any other evidence secured by virtue of the said confession is inadmissible in evidence even if the same was not objected to during the trial by the counsel of the appellant. (People v. Samontañez, G.R. No. 134530, Dec. 4, 2000) Any inquiry a “bantay bayan” makes has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Article III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is concerned. (People v. Lauga, G.R. No. 186228, Mar.15, 2010) Rights under Section 12 can be lost by neglect. Where the defense fails to raise objections to the admissibility of evidence immediately, as required by Section 36 of Rule 132 of the Rules of Court the accused is deemed to have waived his right to object to admissibility. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

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4. EXCLUSIONARY DOCTRINE Any confession or admission obtained in violation of the rights of a person under custodial investigation hereof shall be inadmissible in evidence against him. (PHIL. CONST., art. III, § 12[3]) Nature According to the exclusionary rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained. (People v. Samontañez, G.R. No. 134530, Dec. 4, 2000) Covers Both Confession & Admission Admission – an act, declaration or omission of a party as to a relevant fact. Confession – a declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. (Aquino v. Paiste, G.R. No. 147782, June 25, 2008) Only Covers Confession or Admission Made During Custodial Investigation Infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation. The fact that that accused was not assisted by counsel during the investigation and inquest proceedings does not in any way affect his culpability. It has already been held that "the infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation." Here, appellant's conviction was based not on his alleged uncounseled confession or admission but on the testimony of the prosecution witness. (People v. Bio, G.R. No. 195850, Feb. 16, 2015) However, there is merit in Juanito’s claim that his constitutional rights during custodial investigation

were violated by Judge Dicon when the latter propounded to him incriminating questions without informing him of his constitutional rights. It is settled that at the moment the accused voluntarily surrenders to, or is arrested by, the police officers, the custodial investigation is deemed to have started. So, he could not thenceforth be asked about his complicity in the offense without the assistance of counsel. Judge Dicon’s claim that no complaint has yet been filed and that neither was he conducting a preliminary investigation deserves scant consideration. The fact remains that at that time Juanito was already under the custody of the police authorities, who had already taken the statement of the witnesses who were then before Judge Dicon for the administration of their oaths on their statements. At any rate, while it is true that Juanito’s extrajudicial confession before Judge Dicon was made without the advice and assistance of counsel and hence inadmissible in evidence, it could however be treated as a verbal admission of the accused, which could be established through the testimonies of the persons who heard it or who conducted the investigation of the accused. (People v. Baloloy, G.R. No. 140740, April 12, 2002) Applicable to Accused Aliens The fact that all accused are foreign nationals does not preclude application of the "exclusionary rule" because the constitutional guarantees embodied in the Bill of Rights are given and extend to all persons, both aliens and citizens.(People v. Wong Chien Ming, G.R. Nos. 112801-11, Apr. 12, 1996) Exclusionary Rule Not Applicable to the Violator of the Right The constitutional provision makes the confessions and admissions inadmissible “against him,” that is, against the source of the confession or admission. And it is he alone who can ask for exclusion. They are, however, admissible against the person violating the constitutional prohibition, to the extent that admissibility is allowed by the ordinary rules on evidence. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Inter Alios Acta Rule General Rule: An extrajudicial confession is binding only on the confessant and is not admissible against his or her co-accused because it is considered as hearsay against them. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. Exception: An admission made by a conspirator under Section 31, Rule 130 of the Rules of Court. This provision states that the act or declaration of a conspirator in furtherance of the conspiracy and Page 209 of 479

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during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. It is admissible against a co-accused when it is used as circ*mstantial evidence to show the probability of participation of said co-accused in the crime. Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that: a. The conspiracy be first proved by evidence other than the admission itself; b. The admission relates to the common object; and c. It has been made while the declarant was engaged in carrying out the conspiracy. (People v. Cachuela, G.R. No. 191752, June 10, 2013) In order that an extra-judicial confession may be used against a co-accused of the confessant, there must be a finding of other circ*mstantial evidence which when taken together with the confession would establish the guilt of a co-accused beyond reasonable doubt. (People v. Constancio, G.R. No. 206226, April 04, 2016) Even after charges are filed, the police may still attempt to extract extrajudicial confessions or admissions outside judicial supervision. For this reason, Section 12(1) still applies. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

O. RIGHTS OF THE ACCUSED 1.

2. 3.

All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (PHIL. CONST., art. 3, § 13) No person shall be held to answer for a criminal offense without due process of law. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the

witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (PHIL. CONST., art. 3, § 14) Rights of the Accused [D-BIH-CIS-CPA] a. Criminal due process b. Bail c. Presumption of innocence d. Right to be heard e. Assistance of counsel f. Right to be informed of the nature and cause of accusation g. Right to speedy, impartial, and public trial h. Right to confrontation i. Compulsory process j. Trials in absentia

1. CRIMINAL DUE PROCESS Concept As to procedural due process, the requirement that no person shall be held to answer for a criminal offense without due process of law simply requires that the procedure established by law be followed. If that procedure fully protects life, liberty and property of the citizens in the state, then it will be held to be due process of law. (U.S. v. Ocampo, G.R. No. L5527, Dec. 22, 1910) This presupposes that the penal law being applied satisfies the substantive requirements of due process. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) In criminal proceedings then, due process is satisfied if the accused is "informed as to why he is proceeded against and what charge he has to meet, with his conviction being made to rest on evidence that is not tainted with falsity after full opportunity for him to rebut it and the sentence being imposed in accordance with a valid law. It is assumed, of course, that the court that rendered the decision is one of competent jurisdiction." (Nunez v. Sandiganbayan, G.R. Nos. L-50581-50617, Jan. 30, 1982) Another aspect of due process is the right to be tried by an impartial judge (cold neutrality of an independent, wholly-free, disinterested and

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impartial tribunal). (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). There must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity because the subliminal effects of publicity are basically unbeknown and beyond knowing. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Right to Appeal The right to appeal is not a natural right or a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of law. (Manila Mining Corp. v. Amor, G.R. No. 182800, April 20, 2015)

the right to bail. But the person seeking provisional release need not wait for a formal complaint or information to be filed against him. (Paderanga v. Court of Appeals, G.R. No. 115407, Aug. 28, 1995) General Rule: All persons actually detained shall, before conviction be entitled to bail. (PHIL. CONST., art. 3, § 13). Since bail is constitutionally available to “all persons”, it must be available to one who is detained even before formal charges are filed.

Exceptions: a.

For the purpose of determining whether an offense is punishable by reclusion perpetua, what is determinative is the penalty provided for by law regardless of the attendant circ*mstances.

Due Process and Military Tribunal A military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as civil courts are open and functioning, and that any judgement rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

To require more than that would practically entail a full-dress trial thereby defeating the purpose of bail which is to enable the accused to obtain liberty pending trial. Strong evidence means “proof evident” or “presumption great.”

2. BAIL Concept Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety; property bond, cash deposit, or recognizance. (ROC, Rule 114, § 1) Purpose To honor the presumption of innocence until his guilt is proven beyond reasonable doubt To enable him to prepare his defense without being subjected to punishment before conviction (Cortes v. Catral, A.M. No. RTJ-97-1387, Sept. 10, 1997) The main purpose of bail is to relieve an accused from the rigors of imprisonment until his conviction and secure his appearance at the trial. Thus, as bail is intended to secure one’s provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by lawful arrest or voluntary surrender. Only those who have been either arrested, detained, or otherwise deprived of their freedom, will ever have the occasion to seek the protective mantle extended by

Persons charged with offenses punishable by reclusion perpetua, life imprisonment and death, when evidence of guilt is strong

Persons who are members of the AFP facing a court martial

Trial Court Conviction If convicted by the trial court, bail is only discretionary pending appeal (Magno v. Abbas, G.R. No. L-19361, Feb.y 26, 1965; Comendador, et al. v. Villa, G.R. No. 93177, Aug. 2, 1991) When a person who is out on bail is convicted, the bondsman must surrender him for execution of the final judgement. (ROC, Rule 114, § 2[d]) Under Section 13, Article 3, Before Conviction, Bail is Either: 1. A matter of right: When the offense charged is punishable by any penalty lower than reclusion perpetua. To this extent, the right is absolute. 2.

A matter of discretion: When the offense charged is punishable by reclusion perpetua, it shall be denied if the evidence of guilt is strong. Once it is determined that the evidence of guilt is not strong, bail

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becomes a matter of right. (People v. Nitcha, G.R. No. 113517, Jan. 19, 1995)

Do not confuse interpretation of Bail under Bill of Rights with the interpretation of Bail under Rule 114 of the Revised Rules of Criminal Procedure as to: a. Bail as a Matter of Right (Sec 4), b. Bail as a Matter of Discretion (Sec 5), c. Non-Bailable offenses (Sec 7).

the judge in its conclusion in determining the weight of the evidence of the accused's guilt. The jurisprudential standard on providing a summary of the prosecution’s evidence entails that the summary of the evidence presented during the prior hearing is formally recognized as having been presented and, most importantly, considered. A summary is necessarily a reasonable recital of any evidence presented by the prosecution. An incomplete enumeration or selective inclusion of pieces of evidence cannot be considered a summary (People v. Tanes y Belmonte, G.R. No. 240596, April 3, 2019)

Strong Evidence Means Evident Proof or Presumption is Great Evident proof means clear, strong evidence which leads a well-guarded dispassionate judgment to the conclusion that the offense has been committed as charged, and that the accused is the guilty agent.

Health Considerations A mere claim of illness is not a ground for bail. Bail is not a sick pass for an ailing or aged detainee or prisoner needing medical care outside the prison facility. (People v. Fitzgerald, G.R. No. 149723, Oct. 27, 2006)

Presumption is great when the circ*mstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excuses all reasonable probability of any other conclusion. (People v. Judge Cabral, G.R. No. 131909, Feb. 18, 1999)

BUT SEE: The currently fragile state of Enrile’s health presents another compelling justification for his admission to bail.

Discretion refers to the court’s discretion to determine whether or not the evidence of guilt is strong.

Since the grant of bail is discretionary and can only be determined by judicial findings, such discretion can only be exercised after evidence is submitted to the court, the petitioner has the right of cross examination and to introduce his own evidence in rebuttal. (Santos v. Judge How, A.M. No. RTJ-051946, Jan. 26, 2007) Bail is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua (Art. III, Sec 13, 1987 Constitution). Bail becomes a matter of discretion if the offense charged is punishable by death, reclusion perpetua, or life imprisonment. Consequently, bail will be denied if the evidence of guilt presented by the prosecution is strong (Art. III, Sec. 7, 1987 Constitution). In this case, X is charged with violating Sec. 5 Art. II of RA 9165, which is punishable by life imprisonment. Hence, X’s bail becomes a matter of judicial discretion if the evidence of his guilt is not strong. When bail is discretionary, the trial court must conduct bail hearings to determine whether the evidence of guilt of the accused is strong. During the bail hearings, the prosecution has the burden of proof. The court’s grant or denial of the bail application must contain a summary of the prosecution’s evidence which should be the basis of

Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial. Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of bail to ensure the appearance of the accused during the trial; and unwarrantedly disregarded the clear showing of the fragile health and advanced age of Enrile. As such, the Sandiganbayan gravely abused its discretion in denying Enrile’s Motion to Fix Bail. (Juan Ponce Enrile v. Sandiganbayan, G.R. No. 213847, Aug. 18, 2015) A person is considered to be “in the custody of law” when: a. He is arrested by virtue of a warrant of arrest or by warrantless arrest. b. He has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. The Court held that when the person has actually posted a bail bond, which was accepted by the court, he has effectively submitted himself to the jurisdiction of the court over his person. (Paderanga

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v. Court of Appeals, G.R. No. 115407, Aug. 28, 1995)

Other Rights in Relation to Bail: 1.

The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended Excessive bail shall not be required (PHIL. CONST., art. 3, § 13).

Factors to be considered in setting the amount of bail: (F3P3 CAWN) a. Financial Ability of the accused to give bail b. Forfeiture of other bail c. The accused was a Fugitive from justice when arrested d. Probability of the accused appearing at the trial e. Penalty for the offense charged f. Pendency of other cases where the accused is on bail g. Character and reputation of the accused h. Age and health of the accused i. Weight of the evidence against the accused j. Nature and circ*mstance of the offense (ROC, Rule 114, § 9) Where the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. (De La Camara v. Enage, G.R. Nos. L32951-2, Sept. 17, 1971) To fix bail at an amount equivalent to the civil liability of which petitioner is charged is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court. (Yap v. CA, G.R. 141529, June 6, 2001) Courts Cannot Strictly Require Cash Bond The condition that the accused may have provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused.

Recognizance An obligation of record entered into before a court guaranteeing the appearance of the accused for trial. It is in the nature of a contract between the surety and the state. The details on how recognizance can be obtained or when it is applicable is left to legislation. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Apart from bail, a person may attain provisional liberty through recognizance, which is an obligation of record entered into by a third person before a court, guaranteeing the appearance of the accused for trial. It is in the nature of a contract between the surety and the state. (People v. Abner, G.R. No. L2508, Oct. 27, 1950) Dismissal of Appeal in Criminal Cases Due to Jumping of Bail The Court of Appeals/Supreme Court may, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant: a. If appellant escapes from prison or confinement; b. If appellant jumps bail; or c. If appellant flees to another country during the pendency of the appeal (ROC, Rule 124, § 8; Rule 125, § 1) Bail in Deportation Proceedings As a general rule, the constitutional right to bail is available only in criminal proceedings. Thus, they do not apply in deportation proceedings, which are administrative in nature. However, see Mejoff v. Director of Prisons, where the court applied the general principles of international law found in the UDHR and ordered released under a bond in a Habeas Corpus petition. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Bail in Extradition Cases Our extradition law does not provide for the grant of bail to an extraditee. There is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. However, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subject to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. The standard used in granting bail in extradition cases is “clear and convincing evidence.” This standard should be lower than proof beyond

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reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by “clear and convincing evidence” that: a. he is not a flight risk and will abide with all the orders and processes of the extradition court, and b. that there exist special, humanitarian, and compelling reasons for him to be released on bail. (Government of Hong Kong v. Olalia, Jr., G.R. No.153675, April 19, 2007) Right to Bail of Military Personnel Tradition has recognized the non-existence of the right to bail because of the disciplinary structure of the military and because soldiers are allowed the fiduciary right to bear arms and can therefore cause great havoc. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). Right to a Hearing In cases where the accused is charged with an offense punishable by reclusion perpetua, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, is required with the participation of both the defense and a duly notified representative of the prosecution for the purpose of ascertaining whether or not the evidence of guilt is strong. The constitutional right to bail necessarily includes the right to a hearing. When bail is denied without a hearing, a fundamental right is violated. Hence, the presentation of evidence for the prosecution in private inquiry, in the absence of the detainee, and the subsequent issuance of an order on the basis of the private inquiry, cannot be allowed. The hearing, however, need not be separate and distinct from the trial itself. And it need only be summary. The right to a prompt hearing is waived by agreeing to postponements. Parallel to the accused’s right to a hearing is the prosecution’s right to present evidence. If the prosecution is denied such right, the grant of bail is void. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

3. PRESUMPTION OF INNOCENCE Concept Its principal effect is that no person shall be convicted unless the prosecution has proved him guilty beyond reasonable doubt. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011)

Petitioner, which is a corporate entity, has no personality to invoke the right to be presumed innocent which right is available only to an individual who is an accused in a criminal case (Feeder International Line v. CA, G.R. 94262, May 31, 1991). Prima Facie Presumption The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the ultimate fact presumed. (U.S. v Luling, G.R. No. L11162, Aug. 12, 1916) Accusation Not Synonymous With Guilt An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso (par. 2, § 4 of BP Blg. 52) contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence. (Dumlao v. COMELEC, G.R. No. L52245, Jan. 22, 1980) Conviction in Illegal Drugs Cases To convict an accused of the illegal sale of dangerous drugs, the prosecution must not only prove that the sale took place, but also present the corpus delicti in evidence. The only time that conviction may be sustain despite noncompliance with the chain of custody requirements is if there were justifiable grounds provided. Before the courts may consider the seized drugs as evidence despite noncompliance with the legal requirements, justifiable grounds must be identified and proven. The prosecution must establish the steps taken to ensure that the integrity and evidentiary value of the seized items were preserved. It is the positive duty to establish its reason for the procedural lapses. (People v. Ternida y Munar, G.R. No. 212626, June 3, 2019) Both the RTC and CA seriously overlooked the longstanding legal tenet that the starting point of every criminal prosecution is that the accused has the constitutional right to be presumed innocent. This presumption of innocence is overturned only when the prosecution has discharged its burden of proof in criminal cases that it has proven the guilt of the accused beyond reasonable doubt, with each and

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every element of the crime charged in the information proven to warrant a finding of guilt for that crime or for any other crime necessarily included therein. This burden of proof never shifts. The accused can simply rely on his right to be presumed innocent. It is thus immaterial, in this case or in any other cases involving dangerous drugs, that the accused put forth a weak defense. The prosecution therefore, in cases involving dangerous drugs, always has the burden of proving compliance with RA 9165, which lays down the procedure that police operatives must follow to maintain the integrity of the confiscated drugs used as evidence. In this case, there were far too many unexplained absences in the procedure: the time and place in the markings on the sachets, certificate of inventory, pictures during the actual buy-bust operation, inventory of the evidence and witnesses present. The chain of custody was clearly broken. The Court cannot presume that the accused committed the crimes they have been charged with as the State must fully establish that. Nor can the Court shirk from their responsibility of protecting the liberties of our citizenry just because the lawmen are shielded by the presumption of the regularity of their performance of duty. This by no means defeats the much stronger presumption of innocence in favor of every person whose life, property and liberty comes under the risk of forfeiture on the strength of a false accusation of committing some crime. When catching drug pushers, police officers must always be advised to do so within the bounds of the law. With the chain of custody having been compromised, the X deserves acquittal as his right to the presumption of innocence has not been overturned. (People vs. Dagdag, G.R. No. 225503, Jun. 26, 2019) The presumption of regularity in the performance of duty cannot overcome the stronger presumption of innocence in favor of the accused. The right of the accused to be presumed innocent until proven guilty is a constitutionally protected right; therefore, the burden lies with the prosecution to prove the accused’s guilt beyond reasonable doubt. In this case, the prosecution failed to prove the corpus delicti of the crimes of sale and possession of illegal drugs due to unexplained breaches of procedure committed by the buy-bust team in the seizure, custody, and handling of the seized drugs. Given the fact that a buy-bust operation is a planned operation, it is questionable why the buy-bust team could not have ensured the presence of the required

witnesses pursuant to Sec 21, Art II of RA 9165, or at the very least marked, photographed, and inventoried the seized items immediately after seizure or confiscation. In other words, the prosecution was not able to overcome the presumption of innocence of X. (People v. Fulinara y Fabelania, G.R. No. 237975, Jun. 19, 2019) Continues Pending Appeal Presumption of innocence persists even when there is conviction by lower court and case is still on appeal. Such presumption is not destroyed until there is proof that accused is guilty beyond reasonable doubt based on evidence. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) Equipoise Rule Where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. (People v. Erguiza, G.R. No. 171348, Nov. 26 2008) Anti-Hazing Law Section 14 of the Anti-Hazing Law provides that an accused's presence during a hazing is prima facie evidence of his or her participation. However, this does not violate the constitutional presumption of innocence. The constitutional presumption of innocence is not violated when there is a logical connection between the fact proved and the ultimate fact presumed. When such prima facie evidence is unexplained or not contradicted by the accused, the conviction founded on such evidence will be valid. However, the prosecution must still prove the guilt of the accused beyond reasonable doubt. The existence of a disputable presumption does not preclude the presentation of contrary evidence. Neither has it been shown how Section 14 does away with the requirement that the prosecution must prove the participation of the accused in the hazing beyond reasonable doubt. (Fuertes v. Senate of the Philippines, G.R. No. 208162, Jan. 07, 2020)

4. RIGHT TO BE HEARD In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel. (PHIL. CONST., art. 3, § 14(2)). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be

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waived except in writing and in the presence of counsel. (PHIL. CONST., art. 3, § 12(1)).

(People v. Agbayani, G.R. No. 122770, Jan 16, 1998) (ROC, Rule 116, § 6)

The accused must be amply accorded legal assistance extended by a counsel who commits himself to the cause of the defense and acts accordingly. It is an efficient and truly decisive legal assistance, and not simply a perfunctory representation. (People v. Bermas, G.R. No. 120420, April 21, 1999)

The right to counsel of an accused is guaranteed by our Constitution, our laws and our Rules of Court. During custodial investigation, arraignment, trial and even on appeal, the accused is given the option to be represented by a counsel of his choice. But when he neglects or refuses to exercise this option during arraignment and trial, the court shall appoint one for him. While the right to be represented by counsel is absolute, the accused's option to hire one of his own choice is limited. (People v. Serzo, G.R. No. 118435, June 20, 1997)

This constitutional right includes the right to present evidence in one’s defense, as well as the right to be present and defend oneself in person at every stage of the proceedings. Stripping the accused of all his pre-assigned trial dates constitutes a patent denial of the constitutionally guaranteed right to due process. (Villareal v. People, G.R. No. 151258, Feb 1, 2012) Nevertheless, a party is not compelled to speak if it chooses to be silent. If it avails itself of the right to be heard, well and good; but if not, that is also its right. In the latter situation, however, it cannot later complain that, because it was not heard, it was deprived of due process. (Stronghold Insurance Co., Inc. v. CA, G.R. No. 88050, Jan 30, 1992

5. RIGHT TO COUNSEL In criminal cases, the right of an accused person to be assisted by a member of the bar is immutable. Otherwise, there would be a grave denial of due process. Thus, even if the judgment had become final and executory, it may still be recalled, and the accused afforded the opportunity to be heard by himself and counsel. The right to counsel is absolute and may be invoked at all times. More so, in the case of an on-going litigation, it is a right that must be exercised at every step of the way, with the lawyer faithfully keeping his client. (Telan v. CA, G.R. No. 95026 Oct. 4, 1991) Duty of Court to Inform Accused of his Right to Counsel a. Inform accused that he has the right to have his own counsel before being arraigned; b. After giving such information, to ask accused whether he desires the aid of counsel; c. If he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and d. If he so desires to have counsel but is unable to employ one, the court must assign a counsel de officio to defend him.

When an accused unaided by counsel qualifiedly admits his guilt to an ambiguous or vague information from which a serious crime can be deduced, it is not prudent for the trial court to render a serious judgment finding the accused guilty of a capital offense without absolutely any evidence to determine and clarify the true facts of the case. (People v. Holgado, G.R. No. L-2809, March 22, 1950) Waiver Accused persons are perfectly entitled to waive [their right to counsel] and they may defend themselves in person. The law expressly authorizes them to defend themselves in person, without the assistance of counsel. It is understood, of course, that they waive their right to be assisted by counsel when they not only do not appoint or request one, but voluntarily submit to trial, and especially when they actually exercise therein the right of defense by cross-examining the witnesses for the prosecution and by introducing evidence in their own behalf. (US v. Go Leng, G.R. No. 6707, February 8, 1912)

6. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION Purpose a. To furnish the accused with a description of the charge against him as will enable him to make his defenses. b. To avail himself of his conviction or acquittal against a further prosecution for the same cause. To inform the court of the facts alleged. (U.S. v. Karelsen, G.R. No. 1376, Jan. 21, 1904) Sufficiency of Complaint or Information A complaint or information is sufficient if it states the: 1. Name of the accused; 2. Designation of the offense given by the statute;

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3. Acts or omissions complained of as constituting the offense; 4. Name of the offended party; 5. Approximate date of the commission of the offense; and 6. Place where the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. (ROC, Rule 110, § 6) If the information fails to allege the material elements of the offense, the accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements. The real nature of the crime charged is determined from the recital of facts in the information. It is not based on the caption, preamble or from the cited provision of law allegedly violated. (People v. Labado, G.R. No. L-38548, July 24, 1980) In a situation where a court (in a fused action for the enforcement of criminal and civil liability) may validly order an accused-respondent to pay an obligation arising from a contract, a person’s right to be notified of the complaint, and the right to have the complaint dismissed if there is no cause of action, are completely defeated. If the accused-respondent is completely unaware of the nature of the liability claimed against him or her at the onset of the case, he is blindsided. It is a clear violation of a person's right to due process. (Gloria S. Dy v. People of the Philippines, GR No. 189081, August 10, 2016) Qualifying and Aggravating Circ*mstances Must be Alleged The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circ*mstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (ROC, Rule 110, § 8) Since the qualifying circ*mstance of “common law spouse” was not alleged in the Information for rape against appellant, he could not be convicted of rape in the qualified form as he was not properly informed of the nature and cause of accusation against him. In a criminal prosecution, it is a fundamental rule that every element of the crime charged must be alleged in the complaint or information. (People v. Begino, G.R. No. 181246, March 20, 2009)

Date of Commission of the Crime General Rule: It is unnecessary to state in the information the precise date that the offense was committed Exception: When it is an essential element of the offense. (People v. Bugayong, G.R. No. 126518, Dec. 2, 1998) When the time given in the complaint is not essential, it need not be proven as alleged. The complaint will be sustained if there is proof that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action. The date of commission is not an element of rape. The gravamen of rape is carnal knowledge of a woman. (People v. Rafon, G.R. No. 169059, Sept. 5, 2007) The Supreme Court has upheld complaints and information in prosecutions for rape which merely alleged the month and year of its commission. (People v. Ching, G.R. No. 177150, Nov. 22, 2007) Waiver The right to assail the sufficiency of the information or the admission of evidence may be waived by the accused-appellant. An information which lacks certain essential allegations may still sustain a conviction when the accused fails to object to its sufficiency during the trial, and the deficiency was cured by competent evidence presented therein. (People v. Palarca G.R. No. 146020, May 29, 2002)

7. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL a. Right to Speedy Trial Factors Used in Determining Whether the Right to a Speedy Trial Has Been Violated: (TL-RAP) 1. Time expired from the filing of the information 2. Length of delay involved 3. Reasons for the delay 4. Assertion or non-assertion of the right by the accused 5. Prejudice caused to the defendant (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011) The test of violation of the right to speedy trial has always been to begin counting the delay from the time the information is filed, not before the filing. The delay in the filing of the information, which in the instant case has not been without reasonable cause, is therefore not to be reckoned with in Page 217 of 479

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determining whether there has been a denial of the right to speedy trial. (Martin v. General Fabian Ver, G.R. No. L-62810 July 25, 1983) Trial includes hearing, reception of evidence and other processes, such as decision in the first instance, appeal and final executory decision in the last instance. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

Republic of the Philippines; Wigberto E. Tanada, et al., intervenors; Danilo S. Ursua v. Republic of the Philippines, G.R. Nos. 177857-58 & G.R. No. 178193, Jan. 24, 2012)

b. Right to Impartial Trial The accused is entitled to the “cold neutrality of an impartial judge.” It is an element of due process.

Remedy if the Right to Speedy Trial was violated: a. He can move for the dismissal of the case b. If he is detained, he can file a petition for the issuance of writ of habeas corpus. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011)

When a judge has previously convicted a person of a crime i.e., arson, he should disqualify himself from hearing another case involving the same person, but with a different crime, i.e., malversation (Ignacio v. Villaluz, G.R. No. L-37527-52, May 25, 1979)

The right to speedy trial is considered violated only when the proceeding is attended by vexatious, capricious and oppressive delays. Courts are required to do more than a mathematical computation of the number of postponements of the scheduled hearings of the case and to give particular regard to the facts and circ*mstances peculiar to each case. (Nelson Imperial, et al. v. Maricel M. Joson, et al.; Santos O. Francisco v. Spouses Gerard and Maricel Joson Nelson; Imperial, et al. v. Hilarion C. Felix, et al., G.R. Nos. 160067, 170410, 171622, Nov. 17, 2010)

The attendance at the trial is open to all irrespective of their relationship to the accused. However, if the evidence to be adduced is offensive to decency or public morals, the public may be excluded. (Garcia v. Domingo, G.R. No. L-30104, July 25, 1973)

Where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom. (Conde v. Rivera, G.R. No. L21741, Jan. 25, 1924) Dismissal Based on the Right to Speedy Trial If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) Speedy Trial v. Speedy Disposition of Cases The right to a speedy trial is available only to an accused and is a peculiarly criminal law concept, while the broader right to a speedy disposition of cases may be tapped in any proceedings conducted by state agencies. In this case, the appropriate right involved is the right to a speedy disposition of cases, the recovery of ill-gotten wealth being a civil suit. (Coconut Producers Federation, Inc. et al. v.

c. Right to Public Trial

The purpose is to serve as a “safeguard against any attempt to employ our courts as instruments of prosecution.” The knowledge that every trial is subject to the contemporaneous review in the forum of the public opinion is an effective restraint on possible abuse of judicial power. (Garcia v. Domingo, G.R. No. L-30104, July 25, 1973) The right of the accused to a public trial is not violated if the hearings are conducted on Saturdays, either with the consent of the accused or if he failed to object thereto. A recognized exception to the general rule that a trial must be public is that the general public may be excluded when the evidence to be presented in the proceeding may be characterized as “offensive to decency or public morals”. An accused is entitled to a public trial, at least to the extent of having his friends, relatives and counsel present – no matter with what offense he may be charged. (In Re: Oliver, 333 U.S. 257, March 8, 1948)

8. RIGHT OF CONFRONTATION Purpose 1. To afford the accused an opportunity to crossexamine the witness 2. To allow the judge the opportunity to observe the conduct or demeanor of the witness

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Exceptions to the right to face witnesses: a. The admissibility of “dying declarations” b. Trial in absentia under Section 14(2) c. With respect to child testimony (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) Where a party has had the opportunity to crossexamine an opposing witness but failed to avail himself of it, he necessarily forfeits the right to crossexamine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. (People v. Seneris, G.R. No. L-48883, Aug. 6, 1980) It is demandable only during trials. Thus, it cannot be availed of during preliminary investigations. Right of confrontation is available during trial which begins only upon arraignment. Section 7 of the Special Rules of Procedure prescribed for Shari’a courts aforecited provides that if the plaintiff has no evidence to prove his claim, the defendant shall take an oath and judgment shall be rendered in his favor by the Court. On the other hand, should defendant refuse to take an oath, plaintiff may affirm his claim under oath, in which case judgment shall be rendered in his favor. Said provision effectively deprives a litigant of his constitutional right to due process. It denies a party his right to confront the witnesses against him and to cross-examine them. It should have no place even in the Special Rules of Procedure of the Shari’a courts of the country. (Tampar v. Usman, G.R. No. 82077, Aug. 16, 1991) The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to crossexamine if desired. (Fulgado v. CA, G.R. No. L61570 Feb. 12, 1990)

9. RIGHT TO COMPULSORY PROCESSES Compulsory process to secure: a. The attendance of witnesses b. The production of evidence in his behalf

The 1973 and 1987 Constitutions expanded the right to compulsory process which now includes the right to secure the production of evidence in one's behalf. By analogy, U.S. v. Ramirez which laid down the requisites for compelling the attendance of witnesses, may be applied to this expanded concept. Thus, the movant must show: 1. That the evidence is really material; 2. That he is not guilty of neglect in previously obtaining the production of such evidence; 3. That the evidence will be available at the time desired; and 4. That no similar evidence could be obtained. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) Subpoena and Subpoena Duces Tecum Subpoena is a process directed to a person requiring him or her to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his or her deposition. It may also require him or her to bring with him or her any books, documents, or other things under his or her control, in which case it is called a subpoena duces tecum. (Rule 21, §1, Rules of Court) The right to compulsory process attendance of witnesses cannot appeal if he made no effort during himself of it. (Bernas, The 1987 Commentary, 2009)

of securing the be invoked on the trial to avail Constitution: A

Preliminary investigation is not too early a stage to stand guard against any significant erosion of the constitutional right to due process. At this stage, the accused should not be denied access to evidence favorable to him since preliminary investigation can result in arrest or deprivation of liberty. (Bernas, The 1987 Constitution: A Commentary, 2009)

10. TRIAL IN ABSENTIA Trial in absentia simply means that the accused waives his right to meet the witnesses face to face. The trial may proceed, despite the absence of the accused. Its purpose is to prevent unnecessary delays in trial caused by the failure of the accused to attend provided that his absence is unjustifiable. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

Requisites (ANU) 1. The accused has been validly Arraigned and 2. Accused has been duly Notified; and Page 219 of 479

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3. His failure to appear is Unjustifiable. (Parada

v. Veneracion, A.M. No. RTJ-96-1353, March 11, 1997) This is allowed to speed up disposition of criminal cases. (People v. Salas, G.R. No. L-66469, July 29, 1986) Voluntary Waiver Trial in absentia can also take place when the accused voluntarily waives his right to be present. The right may be waived provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. Thus, for an accused to be excused from attending trial, it is not enough that he vaguely agrees to be identified by witnesses in his absence. He must unqualifiedly admit that every time a witness mentions as name by which he is known, the witness is to be understood as referring to him. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Presence of the Accused Not Absolutely Required After repeated warnings, the trial judge ordered the accused removed from court and told him that the trial would continue in his absence until he promised to conduct himself in a manner befitting a courtroom. On appeal, the SC held that the behavior of the accused had forfeited his right to be present. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009 citing Illinois v. Allen) Judgement In Absentia While the accused is entitled to be present during promulgation of judgment, the absence of his counsel during such promulgation does not affect its validity. Promulgation of judgment in absentia is valid provided that the essential elements are present: 1. That the judgment be recorded in the criminal docket; and 2. That a copy be served upon the accused or counsel. Recording the decision in the criminal docket of the court satisfies the requirement of notifying the accused of the decision wherever he may be. (Estrada v. People, G.R. No. 162371, Aug. 25, 2005)

WHEN PRESENCE OF THE ACCUSED IS A DUTY a. Arraignment and Plea b. During Trial, for identification c. Promulgation of Sentence Exception: Light offense where accused need not personally appear. It is important to state that the provision of the Constitution authorizing the trial in absentia of the accused in case of his non-appearance after arraignment despite due notice simply means that he thereby waives his right to meet the witnesses face to face among others. An express waiver of appearance after arraignment, as in this case, is of the same effect. However, such waiver of appearance and trial in absentia does not mean that the prosecution is thereby deprived of its right to require the presence of the accused for purposes of identification by its witnesses which is vital for the conviction of the accused. Such waiver of a right of the accused does not mean a release of the accused from his obligation under the bond to appear in court whenever so required. The accused may waive his right but not his duty or obligation to the court. (Carredo v. People, G.R. No. 77542, March 19, 1990)

P. RIGHT TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF CASES All persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies. (PHIL. CONST., art. III, § 16) Concept The right to speedy disposition of cases is a relative and flexible concept. To determine whether or not a person's right to speedy disposition of cases is violated, there are four factors to consider. The four (4) factors — (1) the length of the delay; (2) the reason for the delay; (3) the respondent's assertion of the right; and (4) prejudice to the respondent — are to be considered together, not in isolation. The interplay of these factors determine whether the delay was inordinate. (Baya v. Sandiganbayan, G.R. Nos. 204978-83, July 6, 2020) In evaluating criminal cases invoking the right to speedy disposition of cases, a case is deemed to have commenced from the filing of the formal complaint and the subsequent conduct of the preliminary investigation. (Republic v. Sandiganbayan, G.R. No. 231144, Feb. 19, 2020)

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A mere mathematical reckoning of the time involved, therefore, would not be sufficient. In the application of the constitutional guarantee of the right to speedy disposition of cases, particular regard must also be taken of the facts and circ*mstances peculiar to each case. (Binay v. Sandiganbayan, G.R. 120681, Oct. 1, 1999) In this case, since the preliminary investigation was terminated beyond the 10-day period provided in the Revised Rules of Criminal Procedure, the burden of proof thus shifted towards the prosecution to prove that the delay was not unreasonable. The period of delay in this case — 5 years — was extraordinarily long that there could conceivably be no procedural rule that would justify said delay. (Javier v. Sandiganbayan, G.R. No. 237997, Jun. 10, 2020) The Rules of Procedure of the OMB do not prescribe a period to conclude a PI. Here, PI shall be conducted in accordance with Sec. 3, Rule 112 of the ROC. Also based on Rule 112, Sec. 4, the investigating officers of the OMB has 10 days within which to determine the presence of probable cause. The complaint was filed on April 27, 2016; X was directed to file a counter-affidavit on October 13, 2016. After that, the case remained stagnant for nearly two years–that is, until the February 22, 2018 resolution. No clarificatory hearing was set by the OMB upon X’s submission of a counter-affidavit; neither was X required to send additional documents. Not having acted in accordance with its own periods, the burden of proof falls to the prosecution to justify the delay. The prosecution may establish that the issues are so complex and the evidence so voluminous as to render delay inevitable; however, the transaction in this case involves only one contract, with two pages, and the records are not voluminous such that it would require additional time for the prosecutor to review. X did not waive his right to speedy disposition of cases either. With or without the prodding of the accused, the Rules of Procedure of the OMB and the Rules of Court fixed the period for termination of a PI; the OMB has the positive duty to observe the specified periods under the rules. Mere inaction on the part of the accused, without more, does not qualify as an intelligent waive of this constitutional right. Since the prosecution failed to provide amply justification for the delay in the PI, it can be concluded that X’s right to speedy disposition of cases was violated. (Perez v. Sandiganbayan, G.R. No. 245862, November 3, 2020) Waiver The person must invoke his or her constitutional right to speedy disposition of cases in a timely

manner and failure to do so even when he or she has already suffered or will suffer the consequences of delay constitutes a valid waiver of that right. (Baya v. Sandiganbayan, G.R. Nos. 204978-83, July 6, 2020) Remedy The remedy for violation of the right to a speedy disposition of a case is dismissal obtained through mandamus. (Lumanlaw v. Hon. Peralta, G.R. No. 164953, Feb. 13, 2006) Speedy Trial v. Speedy Disposition of Cases

SPEEDY TRIAL Sec. 14 Only applies to the trial phase of criminal cases

SPEEDY DISPOSITION Sec. 16 Covers all phases of judicial, quasi-judicial and administrative proceedings

In resolving questions involving the right to speedy disposition of cases, the Court is guided by the ruling in Cagang v. Sandiganbayan. a. The right to speedy disposition of cases is different from the right to speedy trial. The latter may only be invoked in criminal prosecutions, while the former may be invoked before any tribunal. b. A case is deemed initiated upon the filing of a formal complaint prior to a preliminary investigation. Delays beyond the reasonable periods for preliminary investigation set by the Ombudsman will be taken against the prosecution. c. Courts must determine which party carries the burden of proof. If the right is invoked within the given time periods, the defense has the burden of proof that the right was justifiably invoked. It must prove whether the case is motivated by malice or clearly only politically motivated and is attended by utter lack of evidence, and second, that the defense did not contribute to the delay. If the delay occurs beyond the given time period, the prosecution has the burden of justifying the delay. It must prove that it followed the prescribed procedure in the conduct of preliminary investigation and in the prosecution of the case, that the complexity of the issues and the volume of evidence made the delay inevitable, and Page 221 of 479

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that no prejudice was suffered by the accused as a result of the delay. Determination of the length of delay is never mechanical. Courts must consider the entire context of the case, from the amount of evidence to be weighed to the simplicity or complexity of the issues raised. An exception to this rule is if there is an allegation that the prosecution of the case was solely motivated by malice. Malicious intent may be gauged from the behavior of the prosecution throughout the proceedings. If malicious prosecution is properly alleged and substantially proven, the case would automatically be dismissed without need of further analysis of the delay. Another exception would be the waiver of the accused to the right to speedy disposition of cases or the right to speedy trial. If it can be proven that the accused acquiesced to the delay, the constitutional right can no longer be invoked. In all cases of dismissals due to inordinate delay, the causes of the delays must be properly laid out and discussed by the relevant court.

The right to speedy disposition of cases or the right to speedy trial must be timely raised. The respondent or the accused must file the appropriate motion upon the lapse of the statutory or procedural periods. Otherwise, they are deemed to have waived their right to speedy disposition of cases. (Perez v. Sandiganbayan, G.R. No. 245862, Nov. 3, 2020)

Application The fact finding investigation of the Ombudsman lasted nearly 5 years and 5 months. It is clear that the Ombudsman had taken an unusually long period just to investigate the criminal complaint and to determine whether cases be filed against the respondents. It is incumbent for the State to prove that the delay was reasonable which it failed. At no time should the progress and success of the preliminary investigation of a criminal case be made dependent upon the ratification of a treaty by the Senate that would provide to the prosecutorial arm of the State, already powerful and overwhelming in terms of its resources, an undue advantage unavailable at the time of the investigation. To allow the delay under those terms would definitely violate fair play and nullify due process of law. The guarantee of speedy disposition of cases under Section 16 of Article III applies to all cases pending before all judicial, quasi-judicial or administrative

bodies. Thus, the fact-finding investigation should not be deemed separate from the preliminary investigation conducted by the Ombudsman if the aggregate time spent for both constitutes inordinate and oppressive delay in the disposition of the case. (People v. Sandiganbayan, G.R. Nos. 188165 & 189063, Dec. 11, 2013)

Q. Right against Self-Incrimination No person shall be compelled to be a witness against himself. (PHIL. CONST., art. 3, § 17) Concept It is the duty of the prosecution, in order to convict one of a crime, to produce evidence showing guilt beyond a reasonable doubt; and the accused cannot be called upon either by express words or acts to assist in the production of such evidence; nor should his silence be taken as proof against him. He has a right to rely on the presumption of innocence until the prosecution proves him guilty of every element of the crime with which he is charged. (US v. Navarro, G.R. No. 1272, Jan. 11, 1904) The right against self-incrimination is not merely a formal technical rule the enforcement of which is left to the discretion of the court; it is mandatory; it secures to a defendant a valuable and substantive right; it is fundamental to our scheme of justice. Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Thus, an accused has: a. The right to forego testimony, and b. The right to remain silent, unless he chooses to take the witness stand. (Chavez v. CA, G.R. No. L-29169, Aug. 19, 1968) Option of Refusal to Answer, not a Prohibition of Inquiry The right against self-incrimination prescribes an option of refusal to answer incriminating questions and not a prohibition of inquiry. It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. (People v. Ayson, G.R. No. 85215, July 7, 1989)

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1. Scope and Limitations Against Testimonial Compulsion The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. (Agustin v. CA, G.R. No. 162571, June 15, 2005) Covers Writing in a Prosecution for Falsification Writing is something more than moving the body, or the hands, or the fingers; writing is not a purely mechanical act, because it requires the application of intelligence and attention. Writing means that the accused is to furnish a means to determine whether or not he is the falsifier. (Beltran v. Samson, G.R. No. 32025, Sept. 23, 1929) Purely Mechanical Act: Must Be Related to the Offense Charged Petitioner was arrested for extortion; he resisted having his urine sample taken; and finally, his urine sample was the only available evidence that was used as basis for his conviction for the use of illegal drugs. The drug test was a violation of petitioner's right to privacy and right against self-incrimination. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest. In the instant case, we fail to see how a urine sample could be material to the charge of extortion. The RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes of drug testing was merely a mechanical act. (Dela Cruz v. People, G.R. No. 200748, July 23, 2014) EXCLUSIONS The essence of the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required. Thus, the right against self-incrimination does not apply in the following cases: a. A woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy. b. An accused may be compelled to submit to physical examination (e.g. ultraviolet exam,

c. d.

paraffin test) and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) To expel morphine from the defendant’s mouth. To have the outline of the defendant’s foot traced to determine its identity with bloody footprints. To be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done. (Dela Cruz v. People, G.R. No. 200748, July 23, 2014) To be compelled to wear a pair of pants or garments for size (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

Over the years, the Supreme Court has expressly excluded several kinds of object evidence taken from the person of the accused from the realm of self-incrimination. These include: a. Photographs, hair, and other bodily substances. b. Examination of a woman’s genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. c. DNA testing and its results. (Agustin v. CA, G.R. No. 162571, June 15, 2005) The right against self-incrimination does not apply to records required by law to be kept which are the appropriate subjects of governmental regulation and where restrictions are validly established. (Shapiro v. United States, 335 U.S. 1, June 21, 1948) WHEN TO INVOKE; WAIVER General Rule: The right against self-incrimination is available in any civil, criminal, or administrative proceeding. (People v. Ayson, G.R. No. 85215, July 7, 1989) Expanded Application a. The right is extended to respondents in administrative investigations that partake of the nature of or are analogous to criminal proceedings. b. The right extends to all proceedings sanctioned by law.

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The right extends to all cases in which punishment is sought to be visited upon a witness, whether a party or not. The right extends to legislative investigations. The right extends to administrative proceedings which possess a criminal or penal aspect, i.e. medical board investigation. The right extends to investigations conducted by a fact-finding ad hoc board. (Standard Chartered Bank v. Senate Committee on Banks, G.R. NO. 167173, Dec. 27, 2007; Pascual v. Board of Medical Examiners, G.R. No. L-25018, May 26, 1969; Galman v. Pamaran, G.R. Nos. 71208-09, Aug. 30, 1985)

Forfeiture proceedings Proceedings for forfeiture of proper are deemed criminal or penal, and, hence, the exemption of defendants in criminal case from the obligation to be witnesses against themselves are applicable thereto (Cabal v. Kapunan, G.R. No. L-19052 Dec. 29, 1962). Available Only When the Incriminatory Question is Asked The right against self-incrimination can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. (People v. Ayson G.R. No. 85215, July 7, 1989) A question tends to incriminate when the answer of the accused or the witness would establish a fact, which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness. Further, a crime or a criminal act may contain two or more elements and that a question would have a tendency to incriminate, even if it tends to elicit only one of said elements. (Isabela Sugar Co. v. Macadaeg, G.R. No. L-5924, Oct. 28, 1953) Not Self-Executing; May Be Waived The right against self-incrimination is not selfexecuting or automatically operational. It must be claimed. If not claimed by or in behalf of the witness,

the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. (People v. Ayson, G.R. No. 85215, July 7, 1989) When a person, however, voluntarily answers an incriminating question, he is deemed to have waived his right. Moreover, after the accused has pleaded guilty, for the purpose of ascertaining the proper penalty to be imposed or for any other legal purposes, the court may properly ask such questions which are necessary to that end. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Where the witness, in answer to previous incriminating questions, said, "I do not remember," that is clearly a refusal to answer, and the privilege is not deemed waived thereby. (Isabela Sugar Co. v. Macadaeg, G.R. No. L-5924, Oct. 28, 1953) Not a Valid Waiver; Judgement Void; Habeas Corpus is a Proper Remedy In this case, petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened "by the clear cut statement that “he will not testify.” But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The Court ruled that there is therefore no waiver of the privilege. To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. Habeas corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. This writ may issue even if another

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remedy which is less effective may be availed of by the defendant. Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. The writ may be granted upon a judgment already final. (Chavez v. CA, G.R. No. L-29169, Aug. 19, 1968) WHO MAY INVOKE Only Applies to Natural Persons Unlike the search and seizure clause, which protects both natural persons and corporations, the privilege against self-incrimination is a personal one, applying only to natural individuals. Thus, a corporation may be compelled to submit to the visitorial powers of the state even if this results in disclosure of criminal acts of the corporation. Moreover, a corporate officer may not prevent the production of corporate papers on the ground that they may incriminate him personally, for in such a situation it would not be a case of the officer incriminating himself but the corporation incriminating him. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Accused v. Ordinary Witness ACCUSED ORDINARY WITNESS The defendant in a The witness receiving cannot be compelled a subpoena must obey to testify or produce it, appear as required, evidence in the take the stand, be criminal case in which sworn and answer he is the accused, or questions. one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. The defendant in a A witness cannot criminal action can refuse to take the refuse to testify witness stand. It is altogether. He can only when a particular refuse to take the question is addressed witness stand, be to which may sworn, answer any incriminate himself for question. some offense that he may refuse to answer on the strength of the constitutional guaranty. As to an accused in a criminal case, it is settled that he can refuse outright to take the stand as a witness. An accused occupies a different tier of protection from an ordinary witness. Under the Rules of Court,

in all criminal prosecutions the defendant is entitled among others – a. To be exempt from being a witness against himself, and b. To testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. The right of the defendant in a criminal case to be exempt from being a witness against himself signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words – unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him – the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. (Rosete v. Lim, G.R. No. 136051, June 8, 2006)

2. Immunity Statutes Nature and Purpose A state response to the constitutional exception – the right against self-incrimination – to its vast powers, especially in the field of ordinary criminal prosecution and in law enforcement and administration, is the use of an immunity statute. Immunity statutes seek a rational accommodation between the imperatives of an individual’s constitutional right against self-incrimination (considered the fount from which all statutes granting immunity emanate) and the legitimate governmental interest in securing testimony. By voluntarily offering to give information on the commission of a crime and to testify against the culprits, a person opens himself to investigation and prosecution if he himself had participated in the criminal act. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness can be given immunity from prosecution. In this manner, the state interest is satisfied while respecting the individual’s constitutional right against self-incrimination. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011)

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Kinds of Immunity Statutes a. Use Immunity – prohibits use of witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. b. Transactional Immunity – grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. (Galman v. Pamaran, G.R. Nos. 71208-09, Aug. 30, 1985) Source of Immunity: The Legislative The power to grant immunity from prosecution is essentially a legislative prerogative. The exclusive power of Congress to define crimes and their nature and to provide for their punishment concomitantly carries the power to immunize certain persons from prosecution to facilitate the attainment of state interests, among them, the solution and prosecution of crimes with high political, social and economic impact. In the exercise of this power, Congress possesses broad discretion and can lay down the conditions and the extent of the immunity to be granted. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) Examples of Immunity Statutes a. PD No. 749 (Granting Immunity from Prosecution to Givers of Bribes and Other Gifts and to their Accomplices in Bribery and Other Graft Cases against Public Officers, July 18, 1975); b. PD No. 1731 (Providing for Rewards and Incentives to Government Witnesses and Informants and other Purposes, October 8, 1980); c. PD No. 1732 (Providing Immunity from Criminal Prosecution to Government Witnesses and for other Purposes, October 8, 1980); d. PD No. 1886 (creating the Agrava FactFinding Board, October 22, 1983); e. 1987 Constitution, Article XIII, Section 18(8) (empowering the Commission on Human Rights to grant immunity); f. RA No. 6646 (An Act Introducing Additional Reforms in the Electoral System and for other Purposes, January 5, 1988); g. Executive Order No. 14, August 18, 1986; h. RA No. 6770 (Ombudsman Act of 1989, November 17, 1989); i. RA No. 6981 (Witness Protection, Security and Benefit Act, April 24, 1991); j. RA No. 7916 (The Special Economic Zone Act of 1995, July 25, 1994); RA No. 9165

(Comprehensive Dangerous Drugs Act of 2002, June 7, 2002); RA No. 9416 (An Act Declaring as Unlawful Any Form of Cheating in Civil Service Examinations, etc., March 25, 2007); and RA No. 9485 (Anti-Red Tape Act of 2007, June 2, 2007) (Quarto v. Hon. Ombudsman, G.R. No. 169042, Oct. 5, 2011)

Authority to Grant Immunity: The Executive, But Reviewable by Courts While the legislature is the source of the power to grant immunity, the authority to implement is lodged elsewhere. The authority to choose the individual to whom immunity would be granted is a constituent part of the process and is essentially an executive function. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) On the other hand, it is the trial court that determines whether the prosecution’s preliminary assessment of the accused-witness’ qualifications to be a state witness satisfies the procedural norms. This relationship is in reality a symbiotic one as the trial court, by the very nature of its role in the administration of justice, largely exercises its prerogative based on the prosecutor’s findings and evaluation. The court is given this power once it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) Extent of Judicial Review of a Bestowed Immunity An immunity statute does not, and cannot, rule out a review by the Supreme Court of the Ombudsman’s exercise of discretion. Like all other officials under our constitutional scheme of government, all their acts must adhere to the Constitution. The parameters of the Court’s review, however, are narrow as the Court is not a trier of facts. Since the determination of the requirements under Section 17, Rule 119 of the Rules of Court (Discharge of Accused to be State Witness) is highly factual in nature, the Court must, thus, generally defer to the judgment of the Ombudsman who is in a better position (than the Sandiganbayan or the defense) to know the relative strength and/or weakness of the evidence presently in his possession and the kind, tenor and source of testimony he needs to enable him to prove his case. Thus, the Court rules on the basis of a petition for certiorari under Rule 65 and address mainly the Ombudsman’s exercise of discretion. The room for intervention only occurs

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when a clear and grave abuse of the exercise of discretion is shown. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011)

R. RIGHT AGAINST DOUBLE JEOPARDY No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (PHIL. CONST., art. 3, § 21) Kinds of Jeopardy SAME OFFENSE “No person shall be twice put in jeopardy of punishment for the same offense.”

Conviction, acquittal, or dismissal of the case without the express consent of the accused will bar a subsequent prosecution.

SAME ACT “When an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.” Only conviction or acquittal – not dismissal without the express consent of the accused – will bar a subsequent prosecution.

1. Requisites and Limitations 1. 2. 3.

A first jeopardy attached prior to the second The first jeopardy has been validly terminated; and A second jeopardy is for the same offense as in the first. (Cerezo v. People, G.R. No. 185230, June 1, 2011)

a. A first jeopardy attached prior to the second WHEN JEOPARDY ATTACHES [ICAPA] 1. After a valid

Indictment; 2. Before a Competent court; 3. After Arraignment;

WHEN JEOPARDY DOES NOT ATTACH 1. If information

does not charge any offense. (People v. Judge Consulta, G.R. No. L-41251, March 31, 1976) 2. If, upon pleading guilty, the

4. When a valid Plea

has been entered; and 5. When the accused has been Acquitted or convicted, or the case dismissed or otherwise terminated without his express consent. (Cerezo v. People, G.R. No. 185230, June 1, 2011)

accused presents evidence of complete selfdefense, and the court thereafter acquits him without entering a new plea of not guilty for accused. There is no valid plea here. (People v. Balisacan, G.R. No. L-26376, Aug. 31, 1966) 3. If the information for an offense cognizable by the RTC is filed with the MTC. There is no jurisdiction here. (People v. Ibasan, Sr., G.R. No. L-61652, June 22, 1984) 4. If a complaint filed for preliminary investigation is dismissed. (People v. Daco, G.R. No. L17210, Nov. 30, 1962)

Judgement Must be Rendered by a Court of Competent Jurisdiction The MeTC took cognizance of the Information for reckless imprudence resulting in parricide while the criminal case for parricide was still pending before the RTC. We held that once jurisdiction is acquired by the court in which the Information is filed, it is there retained. Therefore, as the offense of reckless imprudence resulting in parricide was included in the charge for intentional parricide pending before the RTC, the MeTC clearly had no jurisdiction over the criminal case filed before it, the RTC having retained jurisdiction over the offense to the exclusion of all other courts. The requisite for jeopardy to attach that the judgment be rendered by a court of competent jurisdiction is therefore absent. A decision rendered without jurisdiction is not a decision in contemplation of law and can never become executory. Hence, the remand of the case to the RTC for trial would not amount to double jeopardy. (People v. Honrales, G.R. Nos. 182651 & 182657, Aug. 25, 2010)

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The RTC issued its September 5, 2006 order in defiance of the TRO issued by the CA. The records show that the CA had issued a TRO on April 19, 2006, which should have prohibited the RTC from further proceeding on the case. But the RTC, instead, continued with the presentation of the prosecution’s evidence and issued the assailed September 5, 2006 order. Under this circ*mstance, the RTC’s September 5, 2006 order was actually without force and effect and would not serve as basis for the petitioners to claim that their right against double jeopardy had been violated. The RTC, clearly, acted with grave abuse of discretion in issuing its September 5, 2006 order in view of the earlier TRO issued by the CA. (Villalon v. Chan, G.R. No. 196508, Sept. 24, 2014) The RTC clearly exceeded its jurisdiction when it entertained the joint Motion for Reconsideration with respect to the accused-respondents who were at large. Being at large, accused-respondents have not regained their standing in court. Once an accused jumps bail or flees to a foreign country, or escapes from prison or confinement, he loses his standing in court; and unless he surrenders or submits to the jurisdiction of the court, he is deemed to have waived any right to seek relief from the court. Thus, accused-respondents were not placed in double jeopardy because, from the very beginning, the lower tribunal had acted without jurisdiction. Verily, any ruling issued without jurisdiction is, in legal contemplation, necessarily null and void and does not exist. In criminal cases, it cannot be the source of an acquittal. (People v. De Grano, G.R. No. 167710, June 5, 2009) Dismissal before arraignment Reinvestigation against the companions of the accused would not subject them to double jeopardy. The case against them was dismissed before they were arraigned. (People v. Jugueta, G.R. No. 202124, April 5, 2016)

b. The first jeopardy has been validly terminated a. b.

Acquittal; Conviction; or

Dismissal without the express consent of the accused [ViD-ReMs] a. Dismissal based on Violation of the right to a speedy trial amounts to an acquittal b. Dismissal based on Demurrer to evidence is a dismissal on the merits

d. e.

Dismissal on motion of the prosecution, subsequent to a motion for Reinvestigation filed by the accused Discharge of an accused to be a State witness. This amounts to an acquittal Dismissal on the Merits

If the first dismissal was based on the merits, there should be no second prosecution. If the first dismissal was not based on the merits and was erroneous, one should look at whether the dismissal was with the consent of the accused. If not, there should be no second prosecution. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Under Sec. 9, Rule 113 ( now Sec. 9, Rule 117) of the Rules of Court, the defense of double jeopardy is available to the accused only where he was either convicted or acquitted or the case against him was dismissed or otherwise terminated without his consent. (People v. Bulaong, G.R. No. L-19344) When there was no denial of the right to speedy trial and the dismissal was upon the instance of the accused, reinstatement of the case did not violate the right against double jeopardy. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Verbal orders There is no showing that this verbal order of dismissal was ever reduced to writing and duly signed by him. Thus, it did not yet attain the effect of a judgment of acquittal, so that it was still within the powers of the judge to set it aside and enter another order, now in writing and duly signed by him, reinstating the case. (Abay Sr. v. G.R. No. L-66132 June 27, 1988) Termination with consent, waiver of right General Rule: Equivalent to a waiver of the defense of double jeopardy. a. Motion to dismiss for lack of jurisdiction b. Motion to dismiss on the ground that the facts alleged in the information did not constitute the offense. This amounts to estoppel c. Pleading not guilty to the second charge, instead of moving to quash d. Consenting to a provisional dismissal (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

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Provisional Dismissal A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. (ROC, Rule 117, § 8). The provisional dismissal of offenses punishable by imprisonment not exceeding 6 years or a fine of any amount, or both, shall become permanent 1 year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than 6 years, their provisional dismissal shall become permanent 2 years after issuance of the order without the case having been revived. A motion of the accused for a provisional dismissal of a case is an express consent to such provisional dismissal. If a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived only within the periods provided in the new rule. On the other hand, if a criminal case is provisionally dismissed without the express consent of the accused or over his objection, the new rule would not apply. The case may be revived or refiled even beyond the prescribed periods subject to the right of the accused to oppose the same on the ground of double jeopardy or that such revival or refiling is barred by the statute of limitations. (People v. Panfilo Lacson, G.R. 149453, Oct. 7, 2003)

c. A second jeopardy is for the same offense as in the first Same Offense [IAN-2] 1. Exact identity between the offenses charged in the first and second cases. 2. One offense is an attempt to commit or a frustration of the other offense. 3. One offense is necessarily included or necessary includes the other. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) 4. The situation is different when one act violates two different statutes or two different provisions of a statute. The rule in such a case is that if the one act results in two different offenses, prosecution under one is a bar to prosecution under the other. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2011). Same Evidence Test Whether the evidence needed in one case will support a conviction in the other. (U.S. v. Tan Oco, G.R. No. 11338, Aug. 15, 1916)

However, this applies only in a more general sense, hence it is the test laid down under Section 9 of Rule 117 of the Revised Rules of Criminal Procedure that should apply. This states that one offense must necessarily be included in the other, i.e., whether one offense is identical with the other or whether one offense necessarily includes or is necessarily included in the other. Identity of offenses does not require one-to-one correspondence between the facts and law involved in the two charges. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Different Provisions, different crimes Where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other. (Loney v. People, G.R. No. 152644, February 10, 2006) If one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. ( People v. Tiozon, G.R. No. 89823, G.R. No. 89823, June 19, 1991) Supervening Facts A conviction for an offense will not bar a prosecution for an offense which necessarily includes the offense charged in the former information where: 1. The graver offense developed due to a supervening fact arising from the same act or omission constituting the former charge. 2. The facts constituting the graver offense became known or were discovered only after the filing of the former information 3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and the offended party. (ROC, Rule 117, § 7) If the facts could have been discovered by the prosecution but were not discovered because of the prosecution’s incompetence, it would not be considered a supervening event. Ordinances and National Statute Punishing the Same Act The constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. (People v. Relova G.R. No. L-45129 March 6, 1987)

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Quasi Offense Once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and cannot be split into different crimes and prosecutions. To do so would be a violation of the mantle of protection afforded by the Double Jeopardy Clause. (Ivler v. San Pedro, G.R. No. 172716, Nov. 17, 2010)

From the phraseology of the rule, it is evident that a motion for new trial or a motion for reconsideration applies when the judgment is one of conviction; and it is the accused, not the prosecution which avails of the same. (Riano, Criminal Procedure, 583, 2014)

Continuous Crimes Petitioner’s acts of allegedly preventing Ms. Magsigay from appearing and testifying in a preliminary investigation proceeding and offering in evidence a false affidavit were clearly motivated by a single criminal impulse in order to realize only one criminal objective, which is to obstruct or impede the preliminary investigation proceeding in I.S. Case No. 04-1238. Thus, applying the principle of delito continuado (continuous crime), petitioner should only be charged with one (1) count of violation of PD 1829 which may be filed either in Jagna, Bohol where Ms. Magsigay was allegedly prevented from appearing and testifying in I.S. Case No. 04-1238, or in Tagbilaran City, Bohol where petitioner allegedly presented a false affidavit in the same case. However, since he was already charged – and in fact, convicted in a Judgment dated July 3, 2007 – in the MTCC-Tagbilaran, the case in MCTC-Jagna should be dismissed as the events that transpired in Jagna, Bohol should only be deemed as a partial execution of petitioner’s single criminal design. Consequently, the criminal case in MCTC-Jagna must be dismissed; otherwise, petitioner will be unduly exposed to double jeopardy, which the Court cannot countenance. (Navaja v. De Castro G.R. No. 180969, Sept. 11, 2017)

Exception to the Exception: 1. If motion is based on violation of the right to a speedy trial or on a demurrer to evidence. (People v. Velasco, G.R. No. 140633, Feb. 4, 2002) 2. The dismissal does not amount to an acquittal or dismissal on the merits. (People v. Salico, G.R. No. L-1567, Oct. 13, 1949) 3. The question to be passed upon is purely legal. (People v. Desalisa, L-15516, Dec.17, 1966) 4. The dismissal violates the right of due process of the prosecution. (People v. Sandiganbayan et. al., G.R. No. 164577, July 5, 2010) 5. The dismissal or acquittal was made with grave abuse of discretion. (People v. Sandiganbayan et. al., G.R. No. 164577, July 5, 2010)

Limitations

Motions for Reconsideration At any time before a judgment of conviction becomes final, the court may, upon motion of the accused or at its own instance, but with the consent of the accused, grant a new trial or reconsideration. (ROC, Rule 121, § 1)

Appeals Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy. (ROC, Rule 122, § 1) General Rule: The prosecution may not appeal an acquittal, and an acquittal is immediately final. (ROC, Rule 120, § 7) Exception: The prosecution may appeal an order of dismissal when: 1. The dismissal is on motion or with the express consent of the accused. (ROC, Rule 117, § 7)

Although, as a rule, dismissal of a criminal case may be used to abate an administrative case based on the same facts, the same does not hold true if it were the other way around, that is, the dismissal of the administrative case is being invoked to abate the criminal case. However, if the two actions are based on the same facts and evidence, such as in this case, dismissal in administrative case may be used to negate criminal liability. (People v. Sandiganbayan et. al., G.R. No. 164577, July 5, 2010). Effect of an accused’s appeal of his conviction a. Waiver of right to double jeopardy

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The appellate court may place a penalty higher than that of the original conviction. (Trono v. United States, 199 U.S. 521, 26 S.C.T. 121, 50 L. Ed. 2920, 1905)

An appeal in a criminal case opens the entire case for review on any question including one not raised by the parties. When an accused appeals from the sentence of the trial court, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, whether favorable or unfavorable to the appellant. (People v. Torres, G.R. No. 189850, Sept. 22, 2014) Res Judicata Res judicata is a doctrine of civil law and thus has no bearing on criminal proceedings. Res judicata applies only when there is a final judgment on the merits of a case; it cannot be availed of in an interlocutory order even if the order is not appealed. Even if the argument is expanded to contemplate double jeopardy, double jeopardy will not apply because it requires that the accused has been convicted or acquitted or that the case against the accused has been dismissed or terminated without his express consent. (People v. Escobar, G.R. No. 214300, July 26, 2017)

Cybercrime Prevention Act

Section 7 of RA 10175 which provides for prosecution under both the Revised Penal Code and the Cybercrime Prevention Act was assailed as unconstitutional for violating the rule on double jeopardy. The provision was declared unconstitutional as to Section 4(c)(4) on Libel and Section 4(c)(2) on Child p*rnography. However, with respect to the other prohibited acts, the Court left the determination of the correct application of Section 7 to actual cases. In relation to Section 4(c)(4) on Libel, the Court said that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Charging the offender under both laws would be a blatant violation of the proscription against double jeopardy. As to Section 4(c)(2) on Child p*rnography, the Court said that Section 4(c)(2) merely expands the ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child

p*rnography in fact already covers the use of “electronic, mechanical, digital, optical, magnetic or any other means.” Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional prohibition against double jeopardy. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)

S. RIGHT AGAINST INVOLUNTARY SERVITUDE 1.

No person shall be detained solely by reason of his political beliefs and aspirations. No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. (PHIL. CONST., art. 3, § 18)

Involuntary Servitude Every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised. (Rubi v. Provincial Board, G.R. No. L-14078, March 7, 1919) A private person who contracts obligations of rendering services in a civil capacity to the Army as an employee in its offices cannot, by law, either civil or military, be compelled to fulfill them by imprisonment and deportation from his place of residence. (In Re A.O. Brooks, G.R. No. L-507, November 5, 1901). Slavery The status or condition of a person over whom any or all of the powers attaching to the right of ownership are charged. (R.A. No. 10364, Sec. 3(e)) Debt Bondage The pledging by the debtor of his or her personal services or labor or those of a person under his or her control as security or payment for a debt, when the length and nature of services is not clearly defined or when the value of the services as reasonably assessed is not applied toward the liquidation of the debt. (R.A. 10364, Sec. 3(i)) Political Prisoners A state cannot hold “political prisoners”. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 152, 2011) Exceptions [P2EPOM]: 1. Punishment for a crime. 2. Personal military or civil service in the interest of national defense.

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3. In naval enlistment, a person who enlists in a merchant ship may be compelled to remain in service until the end of the voyage. 4. Posse Comitatus (every able-bodied person is ultimately responsible for keeping peace) for the apprehension of criminals. 5. Return to work order issued by the DOLE Secretary or the President. 6. Minors under patria potestas are obliged to obey their parents. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 152, 2011)

T. RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. (PHIL. CONST., art. III, § 19) “Cruel and unusual,” as these words are found in the Constitution, do not have the same meaning as “clearly excessive” found in Article 5 of the Revised Penal Code. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. Thus, to be “cruel and unusual” or “excessive” within the meaning of the constitution, the penalty must be flagrantly disproportionate to the offense no matter under what circ*mstances the offense may be committed; but to be “clearly excessive” under Article 5 of the Revised Penal Code, it need only be disproportionate to the circ*mstances of the offense and of the offender. It has been held that to come under the constitutional ban on excessive and inhuman punishment, the punishment must be ‘flagrantly and plainly oppressive,’ ‘wholly disproportionate to the nature of the offense as to shock the moral sense of the community.’ (People v. Estoista, G.R. No. L5793, Aug. 27, 1953) Cruel and Inhuman Involves torture or lingering suffering (e.g., being drawn and quartered).

Degrading It exposes a person to public humiliation (e.g., being tarred and feathered, then paraded throughout town). Excessive Fine When under any circ*mstance, disproportionate to the offense.

the

fine

Guides for Determining Whether a Punishment is “Cruel and Unusual” a. It must not be so severe as to be degrading to the dignity of human beings. b. It must not be applied arbitrarily. c. It must not be unacceptable to contemporary society. d. It must not be excessive. Note It must serve a penal purpose more effectively than a less severe punishment would. (Brennan concurring in Furman v. Georgia, 408 U.S. 238, 1972) R.A. 9346 prohibited the imposition of the death penalty. Only by an Act of Congress can it be reborn. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Anti-Hazing Law The Anti Hazing Law does not violate the prohibition on cruel and unusual punishment. The prohibition contemplates "extreme corporeal or psychological punishment.“ Penalties like fines or imprisonment may be cruel, degrading, or inhuman only when they are "flagrantly and plainly oppressive and wholly disproportionate to the nature of the nature of the offense as to shock the moral sense of the community." However, if the penalty has a legitimate purpose, then the punishment is proportionate, and the constitutional prohibition is not violated. The Anti-Hazing Law seeks to punish the conspiracy of silence and secrecy, tantamount to impunity, that would otherwise shroud the crimes committed. Hence, the penalty has a legitimate purpose, and the constitutional prohibition is not violated. (Fuertes v. Senate of the Philippines, G.R. No. 208162, Jan. 07, 2020) DEATH PENALTY Death penalty was abolished because: a. It inflicts traumatic pain not just on the convict but also on his family, even if the penalty is not carried out.

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There was no convincing evidence that it is effective as a deterrent of serious crime. Penology favors reformative rather than vindictive penalties. Life is too precious a gift to be placed at the discretion of a human judge. The law itself, by imposing so many safeguards before such is carried out, manifests a reluctance to impose it. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

Legislature may re-impose it, subject to the following conditions:

Debt A contractual obligation, whether express or implied, resulting in any liability to pay money. Thus, all other types of obligations are not within the scope of this prohibition. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Imprisonment for Fraudulent Debt 1. The fraudulent debt constitutes a crime (e.g. estafa); and 2. The debtor has been duly convicted.(Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

1. That Congress defines what is meant by heinous crimes; 2. That Congress specify and penalize by death, only those crimes that qualify as heinous in accordance with the definition set in heinous crimes law or death penalty law; and 3. That Congress, in enacting this death penalty bill, be singularly motivated by “compelling reasons involving heinous crimes.” (People v. Echegaray, G.R. No. 117472, Feb. 7, 1997)

BP 22 The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. (Lozano v. Martinez, G.R. No. L-63419, Dec. 18, 1986)

Heinous Crimes Heinous crimes are those which are grievous, odious, and hateful; and by reason of their manifest wickedness, viciousness, atrocity, and perversity, are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized, and ordered society. (People v. Echegaray, G.R. No. 117472, Feb. 7, 1997)

Subsidiary Imprisonment If an accused fails to pay the fine imposed upon him, this may result in his subsidiary imprisonment because his liability is ex delicto and not ex contractu. (Alejo v. Judge Inserto, A.M. No. 1098 CFI, May 31, 1976)

Instances When Death Penalty Shall Not Be Imposed a. Guilty person is 70 years old and above; b. Guilty person is below 18 years old; and c. Where upon appeal or automatic review of the case by the SC, the required majority vote is not obtained for the imposition of the death penalty. (REVISED PENAL CODE, art. 47) The duty of a judge when an accused pleads guilty to a capital offense is to look into the evidence to see if death is the proper penalty. (People v. Vinuya, G.R. No. 125925, Jan. 28, 1999)

U. NON-IMPRISONMENT FOR DEBTS No person shall be imprisoned for debt or nonpayment of a poll tax. (PHIL. CONST., art. 3, § 20)

Poll Tax It is a capitation tax imposed on all persons of a certain age. At present it is the tax one pays for his or her residence certificate which generally serves as a personal identification instrument. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

V. EX POST FACTO LAWS AND BILLS OF ATTAINDER No ex post facto law or bill of attainder shall be enacted. (PHIL. CONST., art. 3, § 22)

1. EX POST FACTO LAW 1. Makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2. Aggravates the crime or makes it greater than when it was committed.

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3. Changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed. 4. Alters the legal rules of evidence and receives less testimony than the law required at the time of the commission of the offense in order to convict the accused. 5. Assumes to regulate civil rights and remedies but in effect imposes a penalty or deprivation of a right, which when done was lawful. 6. Deprives a person accused of a crime of some lawful protection to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Characteristics of an Ex Post Facto Law: 1. Refers to criminal matters 2. Retrospective 3. Causes prejudicial to the accused (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Illustrations A law shortening the prescriptive period for a crime is ex post facto. (People v. Sandiganbayan, G.R. No. 101724, July 3, 1992) Analogous to an ex post facto law and covered by the same prohibition would be an official interpretation of a penal law given by the Department of Justice which is subsequently changed to the prejudice of one who had relied on the earlier interpretation. (Co v. Court of Appeals, G.R. No. 100776, October 28,1993) Where the Court had denied Ombudsman jurisdiction over cases before RTC but later reversed its decision while the case was already before the Sandiganbayan, there is no ex post facto law because no new law was passed. The Courts interpretation retroacts to the date the [Ombudsman Act] took effect. (Castro v. Judge Deloria, G.R. No. 163586, January 27, 2009) Application The prohibition on ex post facto laws only applies to retrospective penal laws. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) When Laws are Penal a. When it prescribes a criminal penalty imposable in a criminal trial.

If it prescribes a burden equivalent to a criminal penalty (e.g. disqualification from the practice of a profession) even in administrative proceedings. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Instances when the prohibition on ex-post facto laws is inapplicable Extradition treaty - As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. "It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified." (Wright v. CA, G.R. No. 113213, Aug. 15, 1994) Probation Law and its amendments - Presidential Decree No. 1990, like the Probation Law that it amends, is not penal in character. It may not be considered as an ex post facto law. (Fajardo v. CA, G.R. No. 128508, Feb. 1, 1999) Change of court jurisdiction - R.A 7975, which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. On the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if he presumption of innocence has been convincing overcome. (Lacson v. Executive Secretary, G.R. No. 128096, Jan. 20, 1999) House rental law - The petitioner's contention that BP 877 is an ex post facto law must also be rejected. It is not penal in nature and the mere fact that it contains penal provisions does not make it so. At any rate, she is not being prosecuted under the said penal provisions. (Juarez v. CA, G.R. No. 93474, Oct. 7, 1992) Preventive suspension pendente lite - Section 13 of Republic Act 3019, as among the crimes subjecting the public officer charged therewith with suspension from office pending action in court, is not a penal provision which violates the constitutional prohibition against the enactment of ex post facto law. The RPC clearly states that suspension from the employment or public office during the trial or in order to institute proceedings shall not be considered as penalty. It is not a penalty because it is not imposed as a result of judicial proceedings. In

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fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension (Bayot v. Sandiganbayan, G.R. Nos. L61776 to No. L-61861, March 23, 1984) IRR of RA 10951; Class-A Light Weapons There is no retroactive application mandated in the Rules Implementing RA 10951. On the contrary, firearm licenses to possess Class-A light weapons issued before the passage of RA 10591 are still recognized both under RA 10591 and its Implementing Rules. If the IRR were indeed in the nature of an ex post facto law, then private individuals who possess Class-A light weapons under the old law must be expressly punished under the new law because the new law only allows them to own and possess small arms. Yet, as expressly provided in the law, existing license holders of Class-A light weapons may renew their licenses under the new law and Implementing Rules. Therefore, the IRR of RA No. 10591 is not an ex post facto law. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019)

2. BILL OF ATTAINDER A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. (Cummings v. Missouri, 4 Wall 277, 323 US, 1867) Nature of a bill of attainder as a legislative adjudication of guilt Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function. (People v. Ferrer, G.R. Nos. L32613-14, Dec. 27, 1972) Elements (LINaW) 1. There must be a Law 2. The law Imposes a penal burden 3. On a Named individual or easily ascertainable members of a group 4. The penal burden is imposed directly by the law Without judicial trial. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) “Frequently a bill of attainder was doubly objectionable because of its ex post facto features.

This is the historic explanation for uniting the two mischiefs in one clause... Therefore, if a statute is a bill of attainder, it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder”. (People v. Ferrer, G.R. No. L32613-14, Dec. 27, 1972) The bill of attainder does not need to be directed at a specifically named person. It may also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial. (Cummings v. Missouri, 4 Wall 277, 323 US, 1867) For a law to be considered a bill of attainder, it must contain all the following: a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial. (Fuertes v. Senate of the Philippines, G.R. No. 208162, Jan. 07, 2020) Anti-Hazing Law The Anti-Hazing Law is not a bill of attainder. There is no lack of judicial trial. The mere filing of an Information against the accused is not a finding of guilt. The accused is not being charged merely because he/she is a member of a fraternity/sorority, but because he/she is allegedly a principal in the hazing that led to the victim’s death. These are matters for the trial court to decide. The prosecution must still prove the offense. (Fuertes v. Senate of the Philippines, G.R. No. 208162, Jan. 07, 2020)

W. WRITS OF HABEAS CORPUS, KALIKASAN, HABEAS DATA, AND AMPARO 1. WRIT OF HABEAS CORPUS The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. (PHIL. CONST., art. 3, § 15) Privilege of the Writ of Habeas Corpus The right to have an immediate determination of the legality of the deprivation of physical liberty. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Writ of Habeas Corpus A writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do,

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submit to, and receive whatever the court or judge awarding the writ shall consider in the behalf. (Sombong v. CA, G.R. No. 111876, Jan. 31, 1996) To What Habeas Corpus Extends Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. (ROC, Rule 102, Sec. 1) Habeas corpus is the proper remedy for a person deprived of liberty due to mistaken identity. In such cases, the person is not under any lawful process and is continuously being illegally detained. (In the Matter of the Petition for Habeas Corpus of Datukan Malang Salibo, G.R. No. 197597, April 8, 2015). Purpose of the Writ The primary purpose of the writ is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. (Agcaoili v. Hon. Farinas, G.R. No. 232395, July 3, 2018) What is Suspended: The Privilege, Not The Writ The writ is never suspended. It always issues as a matter of course. What is suspended is the privilege of the writ, i.e., once the officer making the return shows to the court that the person detained is being detained for an offense covered by the suspension, the court may not inquire further. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Remedy Becomes Moot When Restraint Becomes Legal The arrest warrants against the accused were issued by the court that has jurisdiction over the offense charged. Since the restraint on the accused has become legal, the remedy of habeas corpus has already become moot and academic. The "great writ of liberty" of habeas corpus "was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom." Habeas corpus is an extraordinary, summary, and equitable writ, consistent with the law's "zealous regard for personal liberty." Its primary purpose is “to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient." The restraint of liberty need not be confined to any offense so as to entitle a person to the writ. Habeas corpus may be availed of as a post-conviction remedy or when there is an alleged violation of the

liberty of abode. (Osorio v Navera, G. R. No. 223272, February 26, 2018) When Writ Not Allowed or Discharge Authorized The writ shall not be allowed if it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order. If the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. (ROC, Rule 102, Sec. 4) Process An application for a writ of habeas corpus may be made through a petition filed before the: a. Supreme Court or any of its members; b. Court of Appeals, or any of its members in instances authorized by law; or c. Regional Trial Court or any of its presiding judges. The court or judge grants the writ and requires the officer or person having custody of the person allegedly restraining of liberty to file a return of the writ. A hearing on the return of the writ is then conducted. The return of the writ may be heard by a court apart from that which issued the writ. Should the court issuing the writ designate a lower court to which the writ is made returnable, the lower court shall proceed to decide the petition of habeas corpus. By virtue of the designation, the lower court acquires the power and authority to determine the merits of the petition for habeas corpus. Therefore, the decision on the petition is a decision appealable to the court that has appellate jurisdiction over decisions of the lower court. (In the Matter of the Petition for Habeas Corpus of Datukan Malang Salibo, G.R. No. 197597, April 8, 2015) National Bilibid Inmates; Standing The inmates' allegations of suddenly being transferred from the National Bilibid Prisons in Muntinlupa City to the National Bureau of Corrections in Manila City for the purpose of conducting an inspection on their living quarters, if proven, are sufficient to clothe the party with standing to file an application for a writ of habeas

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corpus, provided that they invoke a violation of a fundamental right granted to all citizens, regardless of whether they are incarcerated or not. However, mere allegation of a violation of one's constitutional right is not enough. The violation of constitutional right must be sufficient to void the entire proceedings. (In the Matter of the Petition for Writ of Habeas Corpus/Data v. De Lima, G.R. Nos. 215585 & 215768, Sept. 8, 2020).

Suspension of the Privilege of the Writ of Habeas Corpus The President may suspend the privilege for a period not exceeding 60 days. The grounds for the suspension of the privilege are: 1. Actual invasion or actual rebellion; and 2. When the public safety requires the suspension The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (PHIL. CONST., art. 7, § 18) Inapplicability of the Writ of Habeas Corpus 1. To question the conditions of confinement 2. Once charges have been filed in court

Limitations to the Writ of Habeas Corpus EXTENDS TO DOES NOT EXTEND TO All cases of illegal Questions of confinement or conditions of detention by which any confinement; but only person is deprived of to the fact and his liberty, or by which duration of the rightful custody of confinement. any person is withheld from the person It is not a means for entitled to it. the redress of grievances or to seek It is essential to inquire injunctive relief or into all manner of damages. (In re: Major involuntary restraint Aquino, G.R. 174994, and to relieve a person Aug. 31, 2007) from it if such restraint is illegal.

2. WRIT OF KALIKASAN (Rule 7, A.M. No. 09-6-8-SC) Definition (Sec. 1) A remedy available to a natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Requisites for the issuance of the Writ: 1. There is an actual or threatened violation of the constitutional right to a balanced and healthful ecology; 2. The actual or threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or entity; and 3. The actual or threatened violation involves or will lead to an environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (Segovia v. The Climate Change Commission, G.R. No. 211010, March 7, 2017) Who may file a. Natural Persons b. Juridical Persons c. Entity organized by law d. NGO e. Any public interest group accredited by or f. registered with any government agency (Sec. 1) Where to file The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals. (Sec. 3)

a. When Is The Writ Issued Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance (Sec. 5) What are the reliefs granted

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performance of a duty in violation of environmental laws Permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws Protect, preserve, rehabilitate or restore the environment; Monitor strict compliance with the decision and orders of the court Make periodic reports on the execution of the final judgment Other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment.

3. WRIT OF HABEAS DATA Definition (Sec. 1) The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Purpose It bears reiteration that like the Writ of Amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules. Writs of Amparo and habeas data will not issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution. It is evident that respondent’s reservations on the real reasons for her transfer - a legitimate concern respecting the terms and conditions of one’s employment - are what prompted her to adopt the extraordinary remedy of habeas data. (Manila Electric Company v. Lim, G.R. No. 184679, Oct. 5, 2010) Who May File (P-SCP-R) (Sec. 2) a. Any person whose right to Privacy is threatened

In case of extrajudicial disappearance or killings: o Spouse, Children and Parents o Any ascendant, descendant or collateral Relative of the aggrieved party within the fourth civil degree of consanguinity or affinity in default of those mentioned in the preceding paragraph.

National Bilibid Inmates The right of a convicted national inmate to his or her privacy runs counter to the state interest of preserving order and security inside our prison systems. There is no longer any reasonable expectation of privacy when one is being monitored and guarded at all hours of the day. Unless there is compelling evidence that a public employee engaged in the gathering, collecting or storing of data or information on the convicted national inmate has committed an unlawful act which threatens the life of the inmate, a petition for the writ of habeas data cannot prosper (In the Matter of the Petition for Writ of Habeas Corpus/Data v. De Lima, G.R. Nos. 215585 & 215768, Sept. 8, 2020).

4. WRIT OF AMPARO A remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. (Sec. of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) The Writ of Amparo does not cover threats to property. To be entitled to a Writ of Amparo, petitioners must prove that their rights to life, liberty, and security are being violated or threatened by an unlawful act or omission. The intrusion into their farm was merely a violation of property rights. (Pador v. Arcayan, G.R. No. 18346, March 12, 2013) Examples of Property Rights Not Covered: a. Right to be restituted of personal belongings. It is already subsumed under the general rubric of property rights which are no longer protected by the writ of amparo. (Roxas v. Arroyo, G.R. No. 189155, Sept. 7, 2010) b. Merely seeking protection of property rights, like land in possession of the petitioners. (Castillo v. Cruz, G.R. No. 182165, Nov. 25, 2009)

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Violent incidents purely property-related such as acts of terrorism in relation to a disputed land (Tapuz v. Hon. Judge del Rosario, G.R. No. 182484, June 17, 2008)

Two-fold Burden for Public Authorities The burden for the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is two-fold. 1. The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from this Court when governmental efforts are less than what the individual situations require. The second is to address the disappearance, so that the life of the victim is preserved and his or her liberty and security restored. (Razon v. Tagitis, G.R. No. 182498, Dec. 3, 2009) The remedy of the writ of amparo provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. (Razon v. Tagitis, G.R. No. 182498, Dec. 3, 2009) The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a victim’s rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause of action, omitting the evidentiary details. In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege “the actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission.” (Razon v. Tagitis, G.R. No. 182498, Dec. 3, 2009) Indispensable Element of Gov’t Participation The petitioner in an amparo case has the burden of proving by substantial evidence the indispensable

element of government participation. (Spouses Martin and Santiago v. Tulfo, G.R. No. 205039, Oct. 21, 2015) Coverage The writ shall cover (1) extralegal killings and (2) enforced disappearances or threats thereof. (The Rule on Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 1) Extralegal Killings Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. (Mison v. Gallegos, G.R. No. 210759, June 23, 2015) Enforced Disappearance Enforced disappearances are attended by the following characteristics: 1. An arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government. 2. The refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. (Mison v. Gallegos, G.R. No. 210759, June 23, 2015) Elements of an Enforced Disappearance 1. That there be an arrest, detention, abduction or any form of deprivation of liberty; 2. That it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization; 3. That it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and 4. That the intention for such refusal is to remove the subject person from the protection of the law for a prolonged period of time. (Section 3(g) R.A. No. 9851; Mison v. Gallegos, G.R. No. 210759, June 23, 2015) National Bilibid Inmates The remedy of the writ of amparo may be available even to convicted national inmates, as long as the alleged abduction was made for the purpose of placing the national inmate outside the protection of the law. However, considering that the Secretary of Justice has the authority to determine the movement of national inmates between penal facilities, there is no compelling reason to grant the writ of amparo in Page 239 of 479

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situations where there is an urgent need to remove the national inmates from their place of confinement and to transfer them to another detention facility. (In the Matter of the Petition for Writ of Habeas Corpus/Data v. De Lima, G.R. Nos. 215585 & 215768, Sept. 8, 2020). ————- end of topic ————

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III. SOCIAL JUSTICE AND HUMAN RIGHTS TOPIC OUTLINE UNDER THE SYLLABUS A. CONCEPT OF SOCIAL JUSTICE B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS C. COMMISSION ON HUMAN RIGHTS 1. Powers and Functions

A. CONCEPT OF SOCIAL JUSTICE Social Justice It is the embodiment of the principle that those who have less in life should have more in law. The import of social justice is that when the law can be interpreted in more ways than one, an interpretation that favors the underprivileged must be favored. It should be noted, however, that for all its liberality to the underprivileged, it does not tolerate behavior contrary to law. Section 1 translates the principle of more in law for those who have less in life into a duty of the state to attend to “the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitable diffusing wealth and political power for the common good.” (PHIL CONST., art. XIII, §1[1]) To achieve social justice, the Constitution provides two principal tracks: first, there must be regulation of the acquisition, ownership, use, and disposition of property and its increment (Phil Const., art. XIII, §1[2]), and second, Congress should create economic opportunities based on freedom of initiative and self-reliance (PHIL CONST., art. XIII, §2). These provisions have to be implemented by Congress. Nature of Policy The policy of social justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged. It may mitigate the penalty but it certainly will not condone the offense. Compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. (International School Manila v. International School Alliance of Educators, G.R. No. 167286, Feb. 5, 2014) Humanization of Laws and Equalization of Social and Economic Forces The promotion of social justice, however, is to be achieved not through a mistaken sympathy towards any given group. Social justice is "neither communism, nor despotism, nor atomism, nor

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anarchy," but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extraconstitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number.” (Calalang v. Williams, G.R. No. 47800, Dec. 2, 1940) Principal Activities 1. Creation of more economic opportunities and more wealth 2. Closer regulation of the acquisition, ownership, use, and disposition of property in order to achieve a more equitable distribution of wealth and political power 3. Creation of economic opportunities based on freedom of initiative and self-reliance The increases in SSS contributions reflected in the assailed issuances are a valid exercise of police power as they are reasonably necessary to observe the constitutional mandate of promoting social justice under the Social Security Act. The public interest involved here refers to the State's goal of establishing, developing, promoting, and perfecting a sound and viable tax-exempt social security system. To achieve this, the Social Security System and the Social Security Commission are empowered to adjust from time to time the contribution rate and the monthly salary credits. Given the past increases since the inception of the law, the contribution rate increase of 0.6% applied to the corresponding monthly salary credit does not scream of unreasonableness or injustice. (Kilusang Mayo Uno v. Aquino III, G.R. No. 210500, April 2, 2019) Civil and Political Rights v. Social Rights

The guarantees of the civil and political rights found principally in the Bill of Rights are self-executory and ready for use. One can assert those rights in a court of justice. Social rights, on the other hand, are not rights in the strict sense that the rights in the Bill of Rights are except to the extent that they prohibit government from embarking in activity contrary to the ideals of social justice. These are primarily in the nature of claims or demands which people expect government to satisfy, or they are ideals which government is expected to respect. Thus, in the nature of things, the satisfaction of these demands must for the most part, depend on legislation. (GiosSamar, Inc. v. DOTC, G.R. No. 217158, March 12, 2019)

B. ECONOMIC, SOCIAL, and CULTURAL RIGHTS Economic, social, and cultural rights include the rights to adequate food, adequate housing, to education, to health, to social security, to take part in cultural life, to water and sanitation, and to work. (United Nations Human Rights, Office of the High Commissioner) Labor Article XIII, Section 3 elaborates on the provision in Article II by specifying who are protected by the Constitution, what rights are guaranteed, and what positive measures the state should take in order to enhance the welfare of labor. The State, as provided for in the first paragraph, shall “afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all”. (PHIL CONST., art. XIII, §3) Notes: • The right to organize is given to all kinds of workers both in the private and public sectors. • The workers have a right to hold peaceful concerted activities, except the right to strike, which is subject to limitation by law. e.g., policemen, firemen, and public school teachers are prohibited from striking. • The workers have the right to participate on matters affecting their rights and benefits, as may be provided by law. • Participation may be through: o Collective bargaining agreements o Grievance machineries o Voluntary modes of settling disputes

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o Conciliation proceedings mediated by the Government NAMA-MCCH-NFL had not registered as a labor organization. Not being a legitimate labor organization, NAMA-MCCH-NFL is not entitled to those rights granted to a legitimate labor organization under the Labor Code, specifically: 1) To act as the representative of its members for the purpose of collective bargaining; 2) To be certified as the exclusive representative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining. (Visayas Community Medical Center v. Erma Yballe, et al., G.R. 196156, Jan. 5, 2014) Agrarian and Natural Resources Reform The mandate for agrarian reform, as stated in the first sentence of Section 4, is based on “the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof.” Agrarian reform must aim at: 1. Efficient production; 2. A more equitable distribution of land which recognizes the right of farmers and regular farm workers who are landless to own the land they till; 3. A just share of other or seasonal farm workers in the fruits of the land Holders of the right to own land: 4. Farmers: those who have a tenancy relationship with the landowners, which relationship may be present or historical. 5. Farm workers (a) Regular: has the right to claim the lands they till (b) Other: has the right to a just share in the fruits of production The scope of the right of ownership of an agrarian reform beneficiary can be made subject to limitations. Congress has the right to limit the beneficiary’s right to sell, dispose, or even mortgage the property. It may also take measures to prevent fragmentation resulting in uneconomical or unproductive sizes. Scope of Agrarian Reform Extends not only to private agricultural lands, but also to “other natural resources”, even including the use and enjoyment of “communal marine and fishing resources” and “offshore fishing grounds.”

Agricultural land held by the church in trust may be subject to land reform. The land reform law does not make a distinction between the various forms of ownership, whether in trust or absolute title. Urban or rural poor dwellers cannot be evicted, except according to law. Who Can Be Evicted: [DIC] 1. Persons occupying Dangerous areas 2. When government Infrastructure projects with allocated funding are going to be implemented 3. When there is Court order for eviction and demolition Lands acquired by the NHA for resettlement purposes or housing development are exempt from the coverage of agrarian reform laws. Such acquisition converts the land by operation of law from agricultural to residential. The NHA is not bound to pay disturbance compensation to any tenant in possession of the purchased land (National Housing Authority v. Department of Agrarian Reform Adjudication Board, et al., G.R. 175200, May 4, 2010) While the Constitution subjects “all agricultural lands” to the envisioned agrarian reform program, it also prescribes that the implementation of the program should be “subject to such priorities and retention limits as Congress may prescribe, taking into account ecological, developmental or equity considerations.” Absent priorities and retention limits set by the Congress, but provided that money has been appropriated for a program, the executive department can proceed with implementation either in cooperation with landowners voluntarily participating in the program or through judicial expropriation. •

Priorities: refer to various factors which can affect the pace and scope of implementation and which can make implementation more manageable.

•

Retention limits: pertain to the size of land an individual owner will be allowed to keep, whether he is a cultivator or not. The general guideline is that it should be reasonable.

Just Compensation To the extent that agrarian reform will mean government acquisition of land, whether voluntary or forced, for distribution to agrarian reform beneficiaries, there is need to compensate landowners justly. The agrarian reform mandated by the Constitution is not a land confiscation program.

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Petitioner X is the lawful possessor and cultivator of the disputed lots as farmer-beneficiary. The transfer of farmholdings upon death of the farmerbeneficiary is governed by MC 19. Under MC 19, while the succession or transfer of farmholdings granted under PD 27 recognized the pertinent provisions of the Civil Code on succession, such was subject to certain limitations: (1) ownership and cultivation of the farm-holding shall ultimately be consolidated in one heir; (2) such owner-cultivator shall compensate the other heirs to the extent of their respective legal interest in the land; and (3) where there are several heirs, and in the absence of extra-judicial settlement or waiver of rights in favor of one heir, the heirs shall be free to choose from among themselves one who shall have sole provided, however, that the surviving spouse shall be given first preference; otherwise, in the absence or due to the permanent incapacity of the surviving spouse, priority shall be determined among the heirs according to age. (Golez v. Abais, G.R. No. 191376, Jan. 8, 2020) Primary Jurisdiction of the DAR The Comprehensive Agrarian Reform Program vests Department of Agrarian Reform with primary jurisdiction over agrarian reform matters and over all matters involving the implementation of agrarian reform. Thus, in carrying out its mandate of resolving disputes and controversies in the most expeditious manner, the DAR is not constrained by the technical rules of procedure and evidence. The Secretary has primary jurisdiction over all matters involving the implementation of agrarian reform, including the investigation of acts that he or she believes are directed toward the circumvention of the objectives of the Comprehensive Agrarian Reform Program. (Fil-Estate Properties, Inc. v. Reyes, G.R. Nos. 152797, 189315 & 200684, Sept. 18, 2019) The findings of administrative agencies, such as the Department of Agrarian Reform, are deemed binding and conclusive upon the appellate courts. Administrative agencies possess special knowledge and expertise on matters falling under their specialized jurisdiction. Thus, their findings, when supported by substantial evidence, are accorded great respect and even finality, especially when affirmed by the Court of Appeals. (Fil-Estate Properties, Inc. v. Reyes, G.R. Nos. 152797, 189315 & 200684, Sept. 18, 2019) Comprehensive Agrarian Reform Law The Comprehensive Agrarian Reform Law (Republic Act 6657) implements the agrarian reform provisions of the Constitution.

Police Power and Eminent Domain This law is an exercise of both police power and eminent domain. The extent that it sets retention limits, it is an exercise of police power. But the taking of private lands for redistribution is an exercise of the power of eminent domain revolutionary in character in that it “affects all private agricultural lands wherever found and of whatever kind as long as they are in excess of the maximum retention limits allowed their owners”. (Association of Small Landowners v Secretary of Agrarian Reform, G.R. No. 78742, 79310, 79744, 79777, July 14, 1989). Definition of Agrarian Reform RA 6657 defines "agrarian reform" as the redistribution of lands to farmers and regular farmworkers who are landless to lift the economic status of the beneficiaries and all other arrangements alternative to the physical redistribution of lands, such as production or profit sharing, labor administration and the distribution of shares of stock which will allow beneficiaries to receive a just share of the fruits of the lands they work. Does Not Include Livestock and Poultry The transcripts of the deliberations of the Constitutional Commission of 1986 on the meaning of the word "agricultural," clearly show that it was never the intention of the framers of the Constitution to include livestock and poultry industry in the coverage of the constitutionally-mandated agrarian reform program of the Government. (Luz Farms v. Secretary of the Department of Agrarian Reform, G.R. No. 86889, December 4, 1990) Definition of Agricultural Land Section 4 of R.A. 6657 provides that the CARL shall "cover, regardless of tenurial arrangement and commodity produced, all public and private agricultural lands." As to what constitutes "agricultural land," it is referred to as "land devoted to agricultural activity as defined in this Act and not classified as mineral, forest, residential, commercial or industrial land." The deliberations of the Constitutional Commission confirm this limitation. "Agricultural lands" are only those lands which are "arable and suitable agricultural lands" and "do not include commercial, industrial and residential lands." (Natalia Realty, Inc. v. Department of Agrarian Reform, G.R. No. 103302, Aug. 12, 1993) Lands Covered Republic Act No. 6657 or the Comprehensive Agrarian Reform Law generally covers all public and private agricultural lands. It covers all public and private agricultural lands, as provided in Proclamation No. 131 and Executive Order No. 229, Page 245 of 479

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including other lands of the public domain suitable for agriculture, regardless of tenurial arrangement and commodity produced. However, a maximum of five (5) hectares of the landowner's compact or contiguous landholdings may not be distributed to qualified beneficiaries, as it is within the landowner's rights to retain this area. The CARP covers the following lands: 1. All alienable and disposable lands of the public domain devoted to or suitable for agriculture; 2. All lands of the public domain exceeding the total area of five hectares and below to be retained by the landowner; 3. All government-owned lands that are devoted to or suitable for agriculture; and 4. All private lands devoted to or suitable for agriculture, regardless of the agricultural products raised or can be raised on these lands. As a general rule, agricultural lands that were reclassified as commercial, residential, or industrial by the local government, as approved by the HLURB, before June 15, 1988 are excluded from the CARP. A farm lot is not included in any of these categories. The reclassification of Salas' landholding into a farm lot subdivision, although effected before Republic Act No. 6657, has not changed the nature of these agricultural lands, the legal relationships existing over such lands, or the agricultural usability of the lands. Thus, these lots were properly subjected to compulsory coverage under the CARL. (Heirs of Augusto Salas Kr. v Cabungcal, G.R. No. 191545, March 29, 2017) Other Provisions Section 5 recognizes the right of farmers and regular farm workers to participate in the program itself. The right of non-regular farm workers is that of laborers as provided for in Section 3. The State shall also “provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and other support services”. (PHIL CONST., art. XIII, §5) Section 6 extends the principles of agrarian reform to the disposition of other natural resources. At the heart of agrarian reform is the principle “land to the tiller”. It is this which must be applied, mutatis mutandis, to the utilization of natural resources. Thus, one may speak of “natural resources reform.” Stewardship, as mentioned in this provision, means that the individual would have free use or occupancy, but he would not be given a legal title to the land. This is what is referred to in law as usufructuary.

The provision further provides that the State may “resettle landless farmers and farm workers in its own agricultural estates which shall be distributed to them in the manner provided by law”. (PHIL CONST., art. XIII, §6(2)). The “farmers” and “farm workers” mentioned are not to be considered as agricultural employees of the state but as resettlers and eventual owners of the land once these estates are dissolved. The term “farm workers” also includes laid-off industrial workers who might want to return to the provinces to engage in farming. Section 7 makes specific reference to the rights of small fishermen. The objects of protection are “subsistence fishermen”. The right given to them is preferential, but not exclusive, use of communal marine fishing resources, both inland and offshore. The protection also extends to foreign intrusion in offshore fishing grounds. Section 8 sees agrarian reform as a unique instrument for releasing locked up capital in land for use in industrialization in particular and economic development in general. For this purpose, government must create an atmosphere favorable to investment by, among others, providing landowners with incentives to investment, and by placing usable capital in the hands of landowners subjected to agrarian reform. Urban Land Reform and Housing The State shall, by law, and for the common good, undertake, in cooperation with the public sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlements areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. (PHIL CONST., art. XIII, §9) The principal object of this constitutional mandate is “social housing program”. The objects of concern are not just the underprivileged in general but the “underprivileged and homeless.” Different Kinds of Housing Programs: (a) Open Market Housing Program addressed to those of the higher income sector who can afford to choose the kind of houses they want (c) Economic Market Housing Program addresses the lower income bracket who are in search of affordable housing

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Social Housing Program - addresses those who cannot afford even low-cost housing and needs some sort of subsidy

Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated. (PHIL CONST., art. XIII, §10) Eviction and demolition "in accordance with law and in a just and humane manner" does not mean that the validity or legality of the demolition or eviction is hinged on the existence of a resettlement area designated or earmarked by the government." Rather, it means that "the person to be evicted be accorded due process or an opportunity to controvert the allegation that his or her occupation or possession of the property involved is unlawful or against the will of the landowner; that should the illegal or unlawful occupation be proven, the occupant be sufficiently notified before actual eviction or demolition is done; and there be no loss of lives, physical injuries or unnecessary loss of or damage to properties. (People v. Leachon, G.R. Nos. 108725-726, 1998) The National Housing Authority is authorized to order relocation of persons occupying the land and the demolition of the improvements thereon as part of its mandate to improve blighted areas. Health The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. (PHIL CONST., art. XIII, §11) The key concepts in Section 11 are “integrated and comprehensive” and “affordable”. Integration connotes a unified health delivery system, a combination of public and private sector while comprehensiveness includes health promotion, disease prevention, education, and planning. Although the right to health should be enjoyed by all, Sections 11 to 13 express a clear bias for the underprivileged. Women The State shall protect working women by providing safe and healthful working conditions, taking into

account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation (PHIL CONST., art. XIII, §14). People’s Organization Role and Rights of People’s Organizations Section 15 embodies one of those elements of direct democracy – a recognition of the direct role which people have played and will play in setting the directions the nation will take. It defines people’s organizations as – bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure. “People” here refers not just to the electorate but to all the people.

C. COMMISSION ON HUMAN RIGHTS 1. POWERS AND FUNCTIONS [IACPE2RM-IRA] 1. Investigate all forms of human rights violations involving civil or political rights and recommend. 2. Adopt operational guidelines and rules of procedure. 3. Cite for Contempt for violations of its rules, in accordance with the Rules of Court. 4. Provide appropriate legal measures for the protection of the human rights of all persons, within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection. 5. Exercise visitorial powers over jails, prisons and other detention facilities. 6. Establish continuing programs for research, education and information in order to enhance respect for the primacy of human rights. 7. Recommend to congress effective measures to promote human rights and to provide compensation to victims of human rights violations or their families. 8. Monitor compliance by the government with international treaty obligations on human rights. 9. Grant Immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any CHR investigation. 10. Request assistance from any department, bureau, office, or agency in the performance of its functions. 11. Appoint its officers and employers in accordance with law. (PHIL CONST., art. XIII, §11) Page 247 of 479

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NOTE: • Violations may be committed by public officers or by civilians or rebels. • CHR cannot investigate violations of social rights. • CHR has NO adjudicatory powers over cases involving human rights violations. • They cannot investigate cases where no rights are violated. e.g., There is no right to occupy government land (squat). Therefore, eviction therefrom is NOT a human rights violation. • The CHR can initiate court proceedings on behalf of victims of human rights violations. • The CHR can recommend the prosecution of human rights violators, but it cannot itself prosecute these cases. • The CHR cannot issue restraining orders or injunctions against alleged human rights violators. These must be obtained from the regular courts.

2. COMPOSITION AND QUALIFICATION OF MEMBERS The Commission is composed of a Chairman and four (4) members who must be natural born citizens of the Philippines and a majority of whom must be members of the Bar. The term of office, other qualifications, and disabilities shall be provided for by law. (PHIL CONST., art. XIII, §17[2]) The appointment of the CHR members is not subject to CA confirmation; and the CHR is not of the same level as the COMELEC, CSC, or COA.

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IV. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE, AND SPORTS TOPIC OUTLINE UNDER THE SYLLABUS A. ACADEMIC FREEDOM

A. ACADEMIC FREEDOM Academic freedom shall be enjoyed in all institutions of higher learning. (PHIL CONST., art XIV, § 5, ¶ 2) Whose Academic Freedom? 1. Institutions 2. Faculty 3. Students Note: Freedom of the institution and freedom of the faculty are different. Freedom of the Faculty It is the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their competence, subject to control of the methods. (Garcia v. Faculty Admission Committee, G.R. No. L-40779, Nov. 28, 1975) Faculty Members Have: 1. Full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties. 2. Freedom in the classroom in discussing their subjects, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subjects. 3. Freedom from institutional censorship or discipline, when faculty members speak or write in their capacity as citizen. Institutional Academic Freedom From the standpoint of the institution: to provide that atmosphere which is most conducive to speculation, experimentation, and creation. The four essential freedoms of a university are: a. Who may teach b. What may be taught c. How it shall teach d. Who may be admitted to study (Garcia v. Faculty Admission Committee, G.R. No. L40779, Nov. 28, 1975; citing J. Frankfurter, concurring in Sweezy v. New Hampshire, 354 US 234, June 17, 1957) Right to Decide for Itself Institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint.

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Right to Discipline Students The right to discipline the student likewise finds basis in the freedom "what to teach." Indeed, while it is categorically stated under the Education Act of 1982 that students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject to the established academic and disciplinary standards laid down by the academic institution. (DLSU Inc., v. CA, G.R. No. 127980, Dec. 19, 2007)

Limitations: a. Police power of the State b. Social interest of the community

Freedom to Determine Who May be Admitted to Study Includes: a. Right to determine who may be granted degrees b. Right to determine who are entitled to the grant of honors (University of San Carlos v. CA, G.R. No. 79237, Oct. 18, 1988)

Right to Select Profession or Course of Study Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements. (PHIL CONST., art XIV, § 5, ¶ 3)

Institutions cannot be compelled by mandamus to admit students because there is no duty to admit. At most, students can lay claim to a privilege, NOT a right. (Garcia v. Faculty Admission Committee, G.R. No. L-40779, Nov. 28, 1975) Right to Education Subject to Academic Freedom Right to education is subject to broad academic freedom to impose fair, reasonable, and equitable admission and academic requirements. Right to receive education is not a right to be admitted to institutions. (Pimentel v. LEB, G.R. No. 230642, July 2, 2019) General Rule on the State’s Power The state’s power over educational institutions is only supervisory and regulatory. The state can only impose minimum regulations. (Pimentel v. LEB, G.R. No. 230642, July 2, 2019) Exceptions: 1. Marked arbitrariness or grave abuse of discretion on the part of the institution 2. Overriding public welfare (Pimentel v. LEB, G.R. No. 230642, July 2, 2019)

Constitutional Right of Speech and Assembly Academic freedom cannot be used to discriminate against students exercising constitutional right of speech and assembly. However, it is NOT protected when speech materially disrupts classwork or causes disorder or invasion of the right. (Non v. Dames, G.R. No. 89317, May 20, 1990)

Rights of Teachers and Other Personnel The State shall enhance the right of teachers to professional advancement. Non-teaching academic and non-academic personnel shall enjoy the protection of the State. (PHIL CONST., art. XIV, § 5, ¶ 4) Non-teaching and non-academic personnel also enjoy protection. They are essential to the success of the education system. Highest Budgetary Priority to Education The State shall assign the highest budgetary priority to education and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment. (PHIL CONST., art XIV, § 5, ¶ 5) This provision does not mean that all must yield to giving highest budgetary priority to education. This cannot deprive the Congress from responding to national interest and other state policies or objectives. For instance, allocation of larger share to debt service than education is NOT unconstitutional. (Guingona v. Carague, G.R. No. 9457, Apr. 22, 1991) ————- end of topic ————-

A state-imposed pass or fail exam that dictates upon schools who are to be admitted exceeds minimum standards. It goes beyond mere supervision and regulation. It violates academic freedom to determine who may be admitted. (Pimentel v. LEB, G.R. No. 230642, July 2, 2019) Rights of Students Students have the right to enjoy in school the guarantees of the Bill of Rights. Page 251 of 479 BACK TO TOC

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I. REGALIAN DOCTRINE Three-Fold Goal of the National Economy 1. More equitable distribution of opportunities, income and wealth; 2. Increase of wealth for the benefit of the people, and 3. Increased productivity (Phil. CONST, Art.XII, § 1)

REGALIAN DOCTRINE IMPERIUM Government authority possessed by the State which is appropriately embraced in sovereignty.

DOMINIUM The capacity of the State to own and acquire property. It refers to lands held by the government in a proprietary character.

What is the Regalian doctrine? (Jura Regalia) Universal feudal theory that all lands were held from the Crown. All lands not otherwise clearly appearing to be privately owned are presumed to belong to the State. (Cariño v. Insular Government, 212 U.S. 449, Feb. 23, 1909) State Owned: (PWEFFOM) 1. Lands of the Public domain 2. Waters 3. Minerals, coals, petroleum, and other mineral oils 4. All sources of potential Energy 5. Fisheries 6. Forests or timber 7. Wildlife 8. Flora and fauna 9. Other natural resources (PHIL. CONST. art. XII, § 2) General Rule: All natural resources cannot be alienated. Exception: Agricultural lands Limitations on the disposition of the State of alienable lands of the public domain 1. Only agricultural lands of the public domain may be alienated; 2. Only Filipino citizens may acquire lands not more than 12 hectares by purchase, homestead or grant or lease no more than 500 hectares. Private corporations may lease not more than 1,000 hectares for 25 years renewable for another 25 years. (PHIL. CONST. art. XII, § 3)

The exploration, development and utilization (EDU) of all natural resources shall be under the full control and supervision of the State either by directly undertaking such EDU or through coproduction, joint venture, or production sharing agreements with qualified persons. The use and enjoyment of the marine wealth of the archipelagic waters, territorial sea, and the EEZ shall be reserved for Filipino citizens Utilization of natural resources in rivers, lakes, bays and lagoons may be allowed only on a ‘small scale’ to Filipino citizens or cooperatives— with priority for subsistence fishermen and fish workers. (PHIL. CONST. art.XII, § 2)

Exception with respect to rule on EDU For large-scale EDU of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance. 25-year Limitation All agreements with the qualified private sector (i.e Filipino citizens or corporations or associations at least 60% whose capital is owned by Filipino citizens) may be for only a period not exceeding 25 years, renewable for another 25. Note that the 25-year limit is not applicable to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of power.

II. PUBLIC TRUST DOCTRINE The Public Trust Doctrine, while derived from English common law and American jurisprudence, has firm Constitutional and statutory moorings in our jurisdiction. The doctrine speaks of an imposed duty upon the State and its representative of continuing supervision over the taking and use of appropriated water. Thus, "[p]arties who acquired rights in trust property [only hold] these rights subject to the trust and, therefore, could assert no vested right to use those rights in a manner harmful to the trust." In this framework, a relationship is formed - "the state is the trustee, which manages specific natural resources the trust principal - for the trust principal for the benefit of the current and future generations - the beneficiaries." The State has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. The public is regarded as the beneficial Page 253 of 479

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owner of trust resources, and courts can enforce the public trust doctrine even against the government itself. In essence, the public trust doctrine is based on the notion that private individuals cannot fully own trust resources but can only hold them subject to a servitude on behalf of the public. States can accomplish this goal more efficiently through statutory regulation which was essentially done through the legislation of the Clean Water Act, and the urgency and significance of which is now fortified by the courts under the Public Trust Doctrine as clamored for by the circ*mstances of this case. (Maynilad Water Services, Inc. v. Secretary of the DENR, G.R. No. 202897, August 06, 2019)

III. NATIONALIST AND CITIZENSHIP REQUIREMENT PROVISIONS Rule on Private Lands General Rule: Private lands CAN only be conveyed to: 1. Filipino citizens 2. Corporations or associations incorporated in the Philippines, at least 60% of whose capital is owned by Filipino citizens (PHIL. CONST. art.XII, § 7) Exceptions: ● In intestate succession, where an alien heir of a Filipino is the transferee of private land. (PHIL. CONST. art.XII, § 7). ● A natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private land, subject to limitation provided by law. Hence, land can be used only for residential purposes. In this case, he only acquires derivative title (PHIL. CONST. art.XII, § 7). However, a former natural born Filipino citizen who became a citizen of other countries may acquire land for business and other purposes. (R.A. No. 8179, § 5). ● Foreign states may acquire land but only for embassy and staff residence purposes. When Filipino Citizenship Required Filipino citizenship is only required at the time the land is acquired. Thus, loss of citizenship after acquiring the land does not deprive ownership. Scope of Restriction Restriction against aliens only applies to acquisition of ownership. Therefore:

1. 2. 3.

Aliens may be lessees or usufructuaries of private lands Aliens may be mortgagees of land, as long as they do not obtain possession thereof and do not bid in the foreclosure sale. Land tenure is not indispensable to the free exercise of religious profession and worship. A religious corporation controlled by non-Filipinos cannot acquire and own land, even for religious purposes.

Instance when an Alien-Filipino couple buys land When a couple buys land, where one is an alien and one is Filipino, the property does not become part of the conjugal property. It will only be owned by the Filipino spouse (Cheeseman v. IAC, G.R. No. 74833, Jan. 21, 1991). An alien cannot challenge any act of administration, enjoyment, or alienation of his/her Filipino spouse over a piece of land his/her spouse acquired. (Matthews v. Taylor Spouses, G.R. No. 164584, June 22, 2009). Remedies to Recover Private Lands from Disqualified Aliens: ERR 1. Escheat proceedings 2. Action for Reversion under the Public Land Act 3. An action by the former Filipino owner to Recover the land Although the sale of a lot to an alien violated the constitutional prohibition on aliens acquiring land, the acquisition by succession by Filipino citizens qualified to acquire lands, can no longer be impugned on the basis of the invalidity of the initial transfer. The flaw in the original transaction is considered cured and the title of the transferee is deemed valid considering that the objective of the constitutional proscription against alien ownership of lands, that is to keep our lands in Filipino hands, has been achieved. (Republic v. Register of Deeds, G.R. 158230, July. 16, 2008). Considering that the rights and liabilities of the parties under the Contract to Sell is covered by the Condominium Act wherein petitioner as unit owner was simply a member of the Condominium Corporation and the land remained owned by respondent, then the constitutional proscription against aliens owning real property does not apply to the present case. There being no circumvention of the constitutional prohibition, the Court's pronouncements on the invalidity of the Contract of Sale should be set aside (Hulst v. PR Builders, G.R. 156364, Sept. 25, 2008).

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Private corporations 1. They can only hold alienable lands of the public domain BY LEASE. 2. Period: Cannot exceed 25 years, renewable for not more than 25 years 3. Area: Lease cannot exceed 1,000 hectares. NOTE: A corporation sole is treated like other private corporations for the purpose of acquiring public lands. Filipino citizens 1. Can lease up to 500 hectares 2. Can ACQUIRE not more than 12 hectares by purchase, homestead or grant National Economy and Patrimony Investments Powers of Congress: 1. Reserve to Filipino citizens or to corporations or associations at least 60% of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investment. This may be done when the national interest dictates. 2. Enact measures to encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos (PHIL. CONST., art. XII, § 10). In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. This provision is self-executory. The Supreme Court banked on this to uphold the decision of GSIS to grant the Manila Hotel project to a Filipino corporation, even though a Malaysian firm turned out to be the highest bidder. (Manila Prince Hotel v. GSIS, G.R. 122156, Feb. 3, 1997). However, the GATT Treaty (which placed aliens on the same footing as Filipinos) was upheld by the Supreme Court. It reasoned that the provision which mandates preference to Filipinos is only enforceable with respect to “grant of rights, privileges and concessions covering national economy and patrimony,” and not all aspects of trade and commerce. (Tanada v. Angara, G.R. 118295, May 2, 1997). The Retail Trade Liberalization Act of 2000 (RA 8762) is constitutional. It allowed foreign nationals to engage in retail trade business in the Philippines. It also allowed natural-born Filipino citizens, who had lost their citizenship and now reside in the Philippines, to engage in the retail trade business with the same rights as Filipino citizens. The mandate for the State to develop a “self-reliant and

independent national economy effectively controlled by Filipinos” is not self-executory. The control and regulation of trade in the interest of the public welfare is of course an exercise of the police power of the State. A person’s right to property, whether he is a Filipino citizen or foreign national, cannot be taken from him without due process of law. The Court is not convinced that the implementation of RA 8762 would eventually lead to alien control of the retail trade business. Petitioners have not mustered any concrete and strong argument to support its thesis. The law itself has provided strict safeguards on foreign participation in that business. (Espina v. Zamora, G.R. 143855, Sept. 21, 2010). ACTIVITY EXPLORATION OF NATURAL RESOURCES OPERATION OF PUBLIC UTILITIES ACQUISITION OF ALIENABLE LANDS OF THE PUBLIC DOMAIN

PRACTICE OF ALL PROFESSIONS

MASS MEDIA

ADVERTISING

EDUCATIONAL INSTITUTION

CITIZENSHIP AND/OR EQUITY REQUIREMENTS 1. Filipino citizens 2. Domestic Corporations (60% Filipino owned) 1. Filipino citizens 2. Domestic Corporations (60% Filipino owned) 1. Filipino citizens 2. Domestic Corporations (60% Filipino owned) 3. Former natural-born citizens of RP (as transferees with certain legal restrictions) 4. Alien heirs (as transferees in case of intestate succession) 1. Filipino citizens only (natural persons) 2. Congress may, by law, otherwise prescribe 1. Filipino citizens 2. Domestic Corporations (100% Filipino owned) 1. Filipino citizens 2. Domestic Corporations (70% Filipino owned) 1. Filipino citizens 2. Domestic Corporations (60% Filipino owned) Exception: Schools established by religious groups and mission boards.

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Congress may, by law, increase Filipino requirements for ALL educational institutions.

OTHER ECONOMIC ACTIVITIES

IV. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES 1.

Congress may, by law, reserve to Filipino citizens or to Domestic Corporations (60% Filipino owned or higher) certain investment areas.

Tests used to determine Nationality of a corporation: 1. Voting Control Test – the ownership threshold must be complied by the voting shares. 2. Beneficial Ownership Test – the ownership threshold must also apply to the outstanding capital. And “capital” should be interpreted to include only voting shares. Hence, in the computation for “capital,” only common stock will be considered and not preferred shares. (Gamboa, et.al. v. Finance Secretary, G.R. 176579, June 28, 2011). ‘Capital’ The term “capital” in Section II, Article XII of the 1987 Constitution refers only to shares of stock entitled to vote in the election of directors, and thus in the present case only to common shares, and not to the total outstanding capital stock (common and nonvoting shares). Pursuant to the Gamboa directive, Section 2 of SEC-MC No. 8 provides: “Section 2. All categories shall, at all times, observe the constitutional or statutory ownership requirement. For purposes of determining compliance therewith, the required percentage of Filipino ownership shall be applied to BOTH (a) the total number of outstanding shares of stock entitled to vote in the election of directors; and, (b) the total number of outstanding shares of stock, whether or not entitled to vote.” (Roy III v. Herbosa, G.R. No. 207246, Nov. 22, 2016)

2. 3.

Shall be under the full control and supervision of the State MEANS: The state may directly undertake such activities. The state may enter into coproduction, joint venture or productionsharing arrangements with Filipino citizens or corporations or associations at least 60% of whose capital is owned by such citizens. LIMITATIONS: Period: It should not exceed 25 years, renewable for not more than 25 years. Under terms and conditions as may be provided by law. In case of water rights, water supply, fisheries, industrial uses other than the development of water power. The beneficial use may be the measure and limit of the grant.

Under the 1987 Constitution, the state must always be involved in the control and supervision of the exploration, development and utilization of inalienable natural resources, even if the person engaged is Filipino. EO 211 of President Aquino authorized the Secretary of Natural Resources to authorize such EDU agreements entered into under the 1987 Constitution. Small-scale utilization of natural resources 1. Congress may, by law, authorize smallscale utilization of natural resources by Filipino citizens. 2. Congress may also authorize cooperative fish farming with priority given to subsistence fishermen and fish workers in the rivers, lakes, bays and lagoons. Large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils 1. The President may enter into agreements with foreign owned corporations involving technical or financial assistance for largescale exploration, etc. of minerals, petroleum, and other mineral oils. These agreements should be in accordance with the general terms and conditions provided by law.

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They should be based on the real contributions to economic growth and general welfare of the country. In the agreements, the State should promote the development and use of local scientific and technical resources. The President should notify Congress of every contract under this provision within 30 days from its execution. Management and service contracts are not allowed under this rule.

Under the 1987 Constitution, the Philippine Government may still enter into service contracts, but only for financial and technical agreements with respect to large scale development of minerals, petroleum, and other mineral resources. Management powers may be given to a completely foreign corporation with whom the State enters a service contract. But, such power will only be to the extent necessary to carry out the technical and financial agreement. A foreign corporation may enter into financial and technical assistance agreement with the government involving the management and operation of a mining enterprise. Section 2, Article XII of the Constitution allows other forms of assistance or activities having to do with technical or financial assistance and it will not prohibit the involvement of foreign corporations in the management of mining ventures. The policy recognizes that foreign corporations who will invest in mining will require that they be given a say in the management to ensure its success. The Constitutional Commission understood technical or financial agreements as interchangeable with service contracts. (La BugalB’laan Tribal Association, Inc. v. Ramos, G.R. 127882, Jan. 27, 2004, affirmed in 2005). Also, the grant of such service contracts must be subject to the following safeguards: 1. it must be in accordance with a general law 2. the President must be the signatory for the government 3. the President must report the executed agreement to Congress within 30 days. (La Bugal-B’laan Tribal Association, Inc. v. Ramos, G.R. 127882, Jan. 27, 2004, affirmed in a MR in 2005). There is no vested right to mining rights, save for patented mining claims that were granted under the Philippine Bill of 1902. However, when the 1935

Constitution was passed, it prohibited the alienation of mineral lands and allowed only lease rights to mining claimants. This was also maintained by 1943 and 1973 Constitution. On the other hand, the authority of the State to administer inalienable natural resources through “license, concession or lease” was notably absent under the 1987 Constitution. Under the present Constitution, the state is expected to take a more hands-on approach and it exercises control and supervision through the following modes: (1) The State may directly undertake such activities. (2) co-production/joint venture/production sharing agreements with Filipino citizens or qualified corporations, (3) Congress may allow small-scale utilization of natural resources by Filipino citizens and lastly (4) For large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical/financial assistance. Instead of a first-in-time, first-in right approach toward applicants for mining claims and mining rights, the State decides what the most beneficial method is when it comes to exploring, developing, and utilizing minerals. It may choose to either directly undertake mining activities by itself or enter into co-production, joint venture, or production sharing agreements with qualified applicants. (Naredico v. Krominco, G.R. 196892, Dec. 5, 2018). Protection of Marine Wealth 1. The State shall protect its marine wealth in its archipelagic waters, territorial sea and EEZ. 2. The State shall reserve its use and enjoyment exclusively to Filipino citizens. 3. License Agreement — "a privilege granted by the State to a person to utilize forest resources within any forest land with the right of possession and occupation thereof to the exclusion of others, except the government, but with the corresponding obligation to develop, protect and rehabilitate the same in accordance with the terms and conditions set forth in said agreement" (PD 705, § 3). 4. Private rights must yield when they come in conflict with this public policy and common interest. They must give way to the police or regulatory power of the State, in this case through the DENR, to ensure that the terms and conditions of existing laws, rules and regulations, and the IFMA itself are strictly and faithfully complied with. (Republic v. Pagadian City Timber, G.R. 159308, Sept. 16, 2008).

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V. ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC AND PRIVATE LANDS Lands of the public domain are classified into: (MAN-F) 1. Mineral lands 2. Agricultural 3. National Parks 4. Forest or timber (PHIL. CONST., art. XII, § 3). Rule on Reclassification or Conversion of Lands Reclassification or conversion of lands require the positive act of government, mere issuance of title is not enough. An affirmative act from the executive or legislative is necessary to reclassify property of public dominion. (Laurel v. Garcia, GR No. 92013, Jul. 25, 1990) Reclassification: 1. Public (mineral and agricultural) lands – exclusive prerogative of the executive department. But this is only a delegated power. 2. Forest and national parks - Congress has the sole power to reclassify. Classification is descriptive of the legal nature of the land and NOT what it looks like. Thus, the fact that forest land is denuded does not mean it is no longer forest land (Secretary of DENR v. Yap, G.R. 167707, Oct. 8, 2008). Only the President, upon recommendation of the DENR secretary, may now classify lands of public domain. This prerogative has been delegated to it by Congress under CA 141. (Director of lands v. Court of Appeals, G.R. 58867, Jun. 22, 1984). Classification should be categorical; a land cannot have a mixed classification. For example: an owner of an agricultural land in which minerals are discovered has no right to utilize such minerals. The State may discontinue his/her ownership after just compensation in order to extract such minerals. (Republic v. Court of Appeals, G.R. L-43938, Apr. 15, 1988). Reclassification from forest reserves into non-forest reserves – now exclusively a DENR prerogative. There is no need to wait for Congressional concurrence. (Apex Mining v. Southeast Mindanao Gold, G.R. 152613/152628, Nov. 20, 2009). Can the occupation of forest lands prior to its classification as alienable and disposable land

be considered for purposes of complying with the requirements for judicial confirmation of title? Yes. Congress prescribed no requirement that the land subject of the registration should have been classified as agricultural since June 12, 1945, or earlier. As such, A’s imperfect or incomplete title is derived only from possession and occupation since June 12, 1945, or earlier. (Public Land Act, § 48(b)) This means that the character of the property subject of the application as alienable and disposable agricultural land of the public domain determines its eligibility for land registration, not the ownership or title over it. Alienable public land held by a possessor, either personally or through his predecessors-in-interest, openly, continuously and exclusively during the prescribed statutory period is converted to private property by the mere lapse or completion of the period. By virtue of this doctrine, corporations may now acquire lands of the public domain for as long as the lands were already converted to private ownership, by operation of law, as a result of satisfying the requisite period of possession prescribed by the Public Land Act. (Republic vs Sogod Development Corp, G.R. No. 175760, Feb. 17, 2016) Limitations Regarding Alienable Lands of Public Dominion Means by which Land of Public Dominion Becomes Private Land: 1. Acquired from the Government by purchase or grant. 2. Uninterrupted possession by the occupant and his predecessors-in-interest since time immemorial. 3. Open, exclusive, and undisputed possession of ALIENABLE (agricultural) public land for a period of 30 years. a. Upon completion of the requisite period, the land becomes private property ipso jure without need of any judicial or other sanction. b. Possession since time immemorial leads to the presumption that the land was never part of public domain. c. In computing 30 years, start from when the land was converted to alienable land, not when it was still forest land d. Presumption is always that land belongs to the State. NHA is an “end-user agency” authorized by law to administer and dispose of reclaimed lands. The moment titles over reclaimed lands based on the special patents are transferred to the NHA by the

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Register of Deeds, they are automatically converted to patrimonial properties of the State which can be sold to Filipino citizens and private corporations, 60% of which are owned by Filipinos. (Chavez v. NHA, G.R. 164527, Aug. 15, 2007).

over the subject lands had been vested in CMU as early as 1958. Consequently, transferring the lands in 2003 to the indigenous peoples around the area is not in accord with the IPRA. (CMU v. Executive Secretary, G.R. 184869, Sept. 21, 2010).

Reclaimed foreshore and submerged lands are lands of public domain, and can only be alienated as private property if it is classified by competent authority as alienable. (Republic v. Enciso, G.R. 160145, Nov. 11, 2005).

VII. PRACTICE OF PROFESSIONS

Perfected mining claims under the Old Mining Law do not entitle claimants to private ownership (Director of Lands v. Kalahi Investments Inc., G.R. 48066, Jan. 31, 1989).

The practice of all professions in the Philippines shall be limited to Filipino citizens save in cases prescribed by law (PHIL. CONST., art. XII, § 14).

————- end of topic ————

VI CONCEPT OF ANCESTRAL DOMAIN Protection of Indigenous Cultural Communities: 1. The State protects the rights of indigenous cultural communities to their ancestral land subject to: a. Constitutional provisions b. Subject to national development policies and programs 2. In determining ownership and extent of ancestral domain, Congress may use customary laws on property rights and relations. Ancestral Domain It refers to lands which are considered as pertaining to a cultural region. This includes lands not yet occupied, such as deep forests. Native Title Refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by indigenous cultural communities and indigenous people, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish conquest. (IPRA, § 3(l)). P.P. 310, distributing 670 hectares of CMU’s property, to the indigenous peoples is unconstitutional. The lands by their character have become inalienable from the moment President Garcia dedicated them for CMU’s use in scientific and technological research in the field of agriculture. They have ceased to be alienable public lands. Besides, when Congress enacted the IPRA or RA 8371 in 1997, it provided in Section 56 that "property rights within the ancestral domains already existing and/or vested" upon its effectivity "shall be recognized and respected." In this case, ownership

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BAR OPERATIONS 2023

A. GENERAL PRINCIPLES

I. LAW ON PUBLIC OFFICERS TOPIC OUTLINE UNDER THE SYLLABUS A. GENERAL PRINCIPLES B. MODES OF ACQUIRING PUBLIC OFFICE

TITLE

C. MODES AND KINDS OF APPOINTMENT D. ELIGIBILITY AND REQUIREMENTS

QUALIFICATION

E. DISABILITIES AND INHIBITIONS F.

POWERS AND DUTIES OF PUBLIC OFFICERS

Public Office The right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. (Agpalo, Administrative Law, Law on Public Officers and Election Law, 247-48, 2005) Law on Public Officers This branch of law deals with public office, its creation, modification and dissolution, as well as the eligibility of public officers, the manner of their election or appointment and assumption of office, their rights, duties, powers, inhibitions, and liabilities and the modes of terminating their official relations.

G. RIGHTS OF PUBLIC OFFICERS

Public Office Refers to Either Two Concepts:

H. LIABILITIES OF PUBLIC OFFICERS 1. Preventive Suspension and Back Salaries 2. Illegal Dismissal, Reinstatement And Back Salaries

(1) Functional unit of government – It is within the framework of government organization, and refers to any major functional unit of a department or bureau including regional office.

IMMUNITY OF PUBLIC OFFICERS

(2) Position - Held by an individual whose functions are defined by law or regulation

DISTINGUISH: DE FACTO AND DE JURE OFFICERS

K. TERMINATION RELATIONS L.

OFFICIAL

THE CIVIL SERVICE 1. Scope 2. Appointments To The Civil Service 3. Personnel Actions

M. ACCOUNTABILITY OF PUBLIC OFFICERS 1. Types of Accountability 2. Discipline 3. Impeachment v Quo Warranto 4. The Ombudsman and the Office of the Special Prosecutor 5. The Sandiganbayan N. TERM LIMITS

(Agpalo, Administrative Law, Law on Public Officers and Election Law, 247, 2005) Public Office Not a Property Right It is not a property right but a protected right. It cannot be taken from its incumbent without due process. It is property in the broad sense since the right to hold office includes everything of pecuniary value to its possessor. The right to public office is protected by the right to security of tenure, which is guaranteed by the Constitution. A public office is personal to the public officer and is not transmissible to his heirs upon his death. No heir may be allowed to continue holding his office in his place. (Segovia v. Noel, 47 Phil. 543, 1925) Public office is not a property It is, however, well settled x x x that a public office is not property within the sense of the constitutional guaranties of due process of law, public trust or agency. x x x The basic idea of the government x x x is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual Page 261 of 479

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right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people he represents. (Montesclaros v. COMELEC, GR

No. 152295, 2002) Public Office Not a Contract The right of an incumbent of an office does not depend on any contract in the sense of an arrangement or bargain between him and the public. Generally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right. (De Leon, The Law on Public Officers and Election Law, 6-7, 2011) How created: (1) By the Constitution (e.g. Office of the President) (2) By valid statutory enactments (e.g. Office of the Insurance Commissioner) (3) By authority of the law (e.g. the Davide Commission) Essential characteristics of “public office” (1) Authority conferred by law; (2) Fixed tenure of office; (3) Power to exercise some of the sovereign functions of government; (4) Key element of such test is that “officer is carrying out a sovereign function;” (5) Essential elements to establish public position as “public office” are: (a) Position must be created by Constitution, legislature, or through authority conferred by legislature; (b) Portion of sovereign power of government must be delegated to position; (c) Duties and powers must be defined, directly or impliedly, by legislature or through legislative authority; (d) Duties must be performed independently without control of superior power other than law; and (e) Position must have some permanency. Elements of Public Office: (LSDIP) (1) Created by Law or by authority of law; (2) Possesses a delegation of portion of Sovereign powers of government, for benefit of the public; (3) Powers conferred and duties imposed Defined by Constitution, legislature, or by its authority; (4) Duties performed Independently and only controlled by law unless placed under general control of superior office or body; (5) Permanent or continuous. (State v. Taylor, 144 N.W. 2d. 289,1966; Javier v. Sandiganbayan, G.R. 147026-27, 2009).

Public Officer, Definitions (1) Administrative Code. "Officer" as distinguished from "clerk" or "employee", refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function. [Section 2(14), Introductory Provisions, Administrative Code of 1987] (2) Revised Penal Code. Any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches, public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. [Article 203, Revised Penal Code] (3) Anti-Graft and Corrupt Practices Act. "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government [Section 2(b), RA 3019]. (4) Code of Conduct and Ethical Standards for Public Officers. "Public Officials" includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount. [Section 3(b), RA 6713] (5) Plunder Law. “Public Officer” means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. [Section 1(a), RA 7080] Employee A person in the service of government or any of its agencies, divisions, subdivisions, or instrumentalities. (1987 Administrative Code) Public Officer v. Employee, Distinguished "Officer" as distinguished from "clerk" or "employee," refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with Page 262 of 479

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reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function. [Section 2(14), Introductory Provisions, Administrative Code of 1987] Thus, an officer is distinguishable from a mere employee in the sense that: (1) Position has greater importance, dignity and independence; (2) Required to take an official oath, and to give an official bond; (3) Greater liability to account for misfeasance or nonfeasance in office; (4) Tenure of office is usually different from that of an ordinary employee. Classifications of Public Officer (1) Constitutional or statutory (2) National or local (3) Legislative, executive or judicial (4) Lucrative or honorary (5) Discretionary or ministerial (6) Appointive or elective (7) Civil or military (8) De jure or de facto

B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE

retaining Sec. 66) of the Omnibus Election Code through Sec. 14 of R.A. No. 9006, elective officials are not deemed resigned (but appointive officials are) upon the filing of a certificate of candidacy. (Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, 2003) Elective Position vs Appointive Position ELECTIVE APPOINTIVE ACQUIRED BY VIRTUE OF Mandate of electorate Appointing authority, who can either be an elective or appointive official LENGTH OF TENURE Occupies office for a Generally, has security definite term of tenure and therefore, permanent BASIS OF REMOVAL Can only be removed Can only be removed for on the basis of just cause or at the constitutional or pleasure of appointing statutory grounds authority PARTICIPATION IN PARTISAN ACTIVTIES Allowed to engage in Generally prohibited partisan or political (with exceptions electoral activities including political appointees or those serving political offices)

By Election Elective officials occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. (Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, 2003)

Appointment The act of designation by the executive officer, board, or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office. It is to be distinguished from the selection or designation by a popular vote.

By Appointment Appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. (Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, 2003)

Designation The mere imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions. The implication is that he/she shall hold office only in a temporary capacity and may be replaced at will by the appointing authority. It does not confer security of tenure on the person designated. (Tapispisan v. CA, G.R. No.120082, June 8, 2005)

NOTE: Since the classification justifying Section 14 of Republic Act No. 9006 (Fair Election Act), i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed. Thus, with the repeal of Sec. 67 (but

Election The act of selecting or choosing a person by popular vote to occupy the office. Commission Page 263 of 479

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A written authority from a competent source given to the officer as his/her warrant for the exercise of the powers and duties of the office to which he is commissioned. It is the written evidence of the appointment, but not the appointment itself. (De Leon, The Law on Public Officers and Election Law, 81, 2011) Appointment v. Designation APPOINTMENT DESIGNATION AS TO NATURE Executive, Irrevocable Legislative, revocable AS TO EFFECT Selection of an Mere imposition by law of individual who is to additional duties on an exercise the functions incumbent official of a given office Results in security of Does not result in tenure when completed security of tenure Can be subject of a Cannot be subject of a protest before the CSC protest before the CSC AS TO EFFECTIVITY Connotes permanency Implies temporariness Nature of Appointments It is essentially a discretionary power and cannot be delegated, it must be performed by the officer upon whom it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required be law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred .(Luego v. Civil Service Commission, GR No 69137, August 5, 1986) Requisites for a Valid Appointment (1) Position is vacant (2) The appointing authority must be vested with the power to appoint at the time appointment is made; (3) The appointee should possess all the qualifications including appropriate civil service eligibility and none of the disqualifications; (4) The appointee accepts the appointment by taking the oath and entering into discharge of duty (Garces v. CA, GR No. 114795, July 17, 1996) The concurrence of all these elements should always apply, regardless of when the appointment is made, whether outside, just before, or during the appointment ban. These steps in the appointment process should always concur and operate as a single process. There is no valid appointment if the process lacks even one step. (Velicaria-Garafil v. OP, GR No. 203372, 2015)

Steps in a regular appointment (NCIAO) (1) Nomination by President (2) Confirmation by Commission on Appointments (In case of Presidential appointments, this confirmation applies only to numbers 1 to 5 in the list of Officers that the President shall appoint (see below)) (3) Issuance of the commission or the written authority from a competent source given to the officer as his warrant for the exercise of the powers and duties of the office to which he is commissioned. (4) Acceptance by the appointee (5) Oath and assumption Ad interim appointments are made while Congress is NOT in session or during its recess, whether such recess is voluntary (before adjournment) or compulsory (when Congress adjourns). The appointment shall cease to be effective upon rejection by the COA, or if not acted upon, at the adjournment of the next session of Congress, whether regular or special. Temporary or acting appointments are those which last until a permanent appointment is issued. The Commission on Appointments cannot confirm their appointments because confirmation presupposes a valid nomination or ad-interim appointment. Thus, the appointee has no personality to bring a quo warranto proceeding because he is not entitled to office. Steps in an ad-interim appointment (AIAC) (1) Appointment by the appointing authority (2) Issuance of the commission (3) Acceptance by the appointee (4) Confirmation by the CA Steps for appointments that do not require confirmation: (AIA) (1) Appointment by the appointing authority (2) Issuance of the commission (3) Acceptance by the appointee Absolute Appointment v. Confirmation Required It is long settled in the law that where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. However, where the assent or confirmation of some other officer or body is required, the commission can issue or the appointment may be complete only when such assent or confirmation is obtained. In either case, the appointment becomes Page 264 of 479

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complete when the last act required of the appointing power is performed. Until the process is completed, the appointee can claim no vested right in the office nor invoke security of tenure. (Corpuz v. CA, G.R. 123989, 1998) Where the power of appointment is absolute and the appointee has been determined upon, no further consent or approval is necessary and the formal evidence of the appointment, the commission, may issue at once. The appointment is deemed complete once the last act required of the appointing authority has been complied with. A written memorial that can render title to public office indubitable is required. This written memorial is known as the commission. For purposes of appointments to the judiciary, therefore, the date the commission has been signed by the President is the date of the appointment. Such date will determine the seniority of the members of the Court of Appeals in connection with Section 3, Chapter I of BP 129, as amended by RA 8246. In other words, the earlier the date of the commission of an appointee, the more senior he is over the other subsequent appointees. (Re: Seniority among the four most recent appointments to the position of Associate Justices of the Court of Appeals, A.M. 10-4-22-SC, 2010)

C. MODES AND KINDS OF APPOINTMENT General Rule: Acceptance of appointment is not necessary for the completion or validity of appointment. Exception: Acceptance is necessary to possession of office, and to enable appointees to the enjoyment and responsibility of an office. General Rule: An appointment to an office, once made and complete, is not subject to reconsideration or revocation. Exception: An officer is removable at the will of the appointing power. Acceptance may be express when it is done verbally or in writing. Acceptance is implied when, without formal acceptance, the appointee enters upon the exercise of the duties and functions of an office. Kinds of Appointment under the Civil Service Law

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(1) Permanent appointments - issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of the laws, rules, and standards promulgated in pursuance thereof (2) Temporary appointments – issued in the absence of any eligibles, when necessary to public interest, in order to fill a vacancy with a person who meets all the requirements for the position to which he/she is being appointed, except the appropriate civil service eligibility. • Appointment in an acting capacity is merely temporary, one which is good only until another appointment is made to take its place • Temporary appointments shall not exceed 12 months. • The appointee may be replaced sooner if a qualified civil service eligible becomes available. • Where a temporary appointee acquires civil service eligibility during his tenure as such, his temporary appointment does not thereby automatically become permanent. What is required is a new appointment. • Temporary appointment given to a non-civil service eligible is without a definite tenure and is dependent upon the pleasure of the appointing power. • Acquisition of civil service eligibility during tenure of a temporary appointee does not necessarily translate to permanent appointment. A new appointment which is permanent is necessary. (Province of Camarines Sur v. CA, G.R. No. 104639, 1995) • Power of President to make temporary appointment: The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: i. The officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or Page 265 of 479

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ii. there exists a vacancy Instances of Temporary Appointment (1) Appointee does not possess civil service eligibility (2) Appointment by the President in an executive office during the absence or incapacity of the incumbent (3) Designation as officer in charge (4) Appointment held at the pleasure of the appointing power

(3) Regular Appointment - made by the President while Congress is in session and becomes effective after the nomination is confirmed by the Commission on Appointments. (4) Provisional Appointment - A person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment. (5) Ad Interim Appointment - it is made while Congress is not in session, before confirmation by the CA; it is immediately effective, and ceases to be valid if disapproved or by-passed by the CA or until the next adjournment of the Congress. (6) Midnight Appointment - made by the President or acting president within 2 months immediately before the next presidential elections and up to the end of his term, whether or not it is confirmed by the Commission. Officers that the President Shall Appoint: (EMA2CJC2AR-NL2) (1) Heads of Executive departments (2) Ambassadors (3) Other public Ministers and consuls (4) Officers of the Armed forces from the rank of colonel or naval captain (5) Other officers whose appointment are vested in him in the Constitution a. Regular members of the Judicial and Bar Council b. The Chairman and Commissioners of the Civil Service Commission c. The Chairman and Commissioners of the COMELEC d. The Chairman and Commissioners of the Commission on Audit e. Members of the Regional Consultative Commission

(6) Officers whose appointments are Not otherwise provided for by law (7) Officers whom the president may be authorized by Law to appoint (8) Officers Lower in rank whose appointments the Congress, by law, vested in the President Constitutional Limitations on the Presidential Power to Appoint: (1) Nepotism (see discussion and exceptions below) (2) Midnight appointments (3) Those relating to an Acting President (Sections 13, 14 and 15 of Art. VII) The constitutional limitations refer to appointments in the executive and not the judicial branch of government. (De Castro v. JBC, G.R. 191002, 2010) Revocability of Appointment General Rule: Appointment to an office once made and completed, is not subject to reconsideration or revocation because revocation after a complete appointment is tantamount to removal. Exception: Where the appointment is temporary. (Ong v. Office of the President, GR No 184219, January 30, 2012) Nepotism Since a public office is a public trust, created for the benefit and in the interest of the people, appointments thereto should be based solely on merit and fitness uninfluenced by any personal or filial consideration. (1) The Constitution prohibits the president from appointing his close relatives (within the 4th civil degree by consanguinity or affinity to the president or his spouse) to high positions in government during his tenure. No relative of the President, within the 4th civil degree, shall be appointed to/as: (a) Constitutional Commission (b) The Office of the Ombudsman (c) Secretary of a Department (d) Undersecretary of a Department (e) Chairman or Head of Bureaus of Offices (f) Any GOCC (g) Any GOCC subsidiary (2) Under the Civil Service Decree, all appointments in the national, provincial, city, and municipal governments or in any branch or instrumentality, including GOCCs, made in favor of the appointing or recommending authority, or of the chief of the bureau of the office, or of persons exercising supervision over him, are prohibited. As used in the Civil Service Page 266 of 479

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Law, the term “relative” and members of the family referred to those within the 3rd degree of consanguinity or affinity. Exceptions: (CTAP) (1) Persons employed in Confidential capacity (2) Teachers (3) Physicians (4) Members of AFP The restriction shall not be applicable to any member who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau. In this event, the employment or retention therein of both husband and wife may be allowed. The mere issuance of appointment in favor of a relative within the third degree of consanguinity or affinity is sufficient to constitute nepotism. Also, even if the case is one of falsification of public documents, the requirement of disclosure of relationship to the appointing power in the local government units simply aims to ensure strict enforcement of the prohibition against nepotism. (Galeos v. People, G.R. 174730-37, 2011) The rule on nepotism also applies to designations made in favor of a relative of the authority making a designation. A designation accomplishes the same purpose as appointment. (Laurel v. Civil Service Commission, G.R. No. 71562, 1991) Vacancy There is a vacancy when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and perform its duties. There can be no appointment to a non-vacant position. CAUSES: (I-RACED-PAR2C) (1) Impeachment (2) Removal from office or resignation of the incumbent (3) Abandonment (4) Conviction of a crime (5) Expiration of term (6) Death (7) Permanent disability (8) Acceptance of incompatible office (9) Reaching the age limit (10) Recall (11) Creation of a new profile For appointments not needing confirmation, removal may be by President or officer designated by law. If the appointment is permanent, removal is allowed only for cause.

Principles of Vacancy (1) A person no matter how qualified cannot be appointed to an office which is not vacant (Costin v Quimbo, GR No 32271, January 27, 1983) (2) One who is legally dismissed from office is, by fiction of law, deemed not to have vacated his office (Fernandez v Cuneta, GR No 14392, May 30, 1960)

D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS Eligibility State of being legally fit to be chosen. It is of a continuing nature and must exist both at the commencement and during the occupancy of an office. (De Leon, The Law on Public Officers and Election Law, 19, 2011) Eligible Under the Admin Code, it is used to refer to a person who obtains a passing grade in a civil service examination and whose name is entered in the register of eligibles from which appointments must be made. (ADMIN CODE, Book V, TITLE 1-a, SEC.5, PAR. (8)) Nature of Right to Hold Public Office The right to hold public office is not a natural right. It exists only because and by virtue of some law expressly or impliedly creating and conferring it. The qualifications which relate to an office must be complied with by persons seeking that office. An election or appointment to office of a person who is ineligible or unqualified gives him no right to hold the office. Qualifications Acts which a person is required to do before entering upon position. Means two things: (1) Endowments, qualities, or attributes that make an individual eligible for public office (2) Act of entering into performance of public office

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Two Meanings of Qualifications WHEN REFERRING TO WHEN USED IN THE THE ACT OF ENTERING SENSE OF INTO THE ENDOWMENTS, PERFORMANCE OF THE QUALITIES OR FUNCTIONS OF A ATTRIBUTES PUBLIC OFFICE The individual must Failure of an officer to possess the perform an act required by qualifications at the law could affect the officer’s time of appointment or title to the office. election and continuously for as NOTE: long as the official Prolonged failure or refusal relationship continues. to take the office could result in forfeiture of office. NOTE: An oath of office taken Property qualifications before one who has no may not be imposed authority to administer oath for the exercise of the is no oath at all. right to run for public office. Loss of any of Once proclaimed and duly the qualifications sworn in office, a public during incumbency will officer is entitled to assume be a ground for office and to exercise the termination. functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office. Formal Qualifications: (CAP-CARES) (1) Citizenship (2) Age (3) Political affiliation (4) Civil service examination (5) Ability to read and write (6) Residence (7) Education (8) Suffrage Only accountable public officers or those who are entrusted with the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals are required to give an official bond. Improper notarization is not among the grounds for disqualification as stated under the OEC and LGC. Apart from the qualifications provided for in the Constitution, the power to prescribe additional qualifications for elective office and grounds for disqualification therefrom, consistent with the constitutional provisions, is vested in Congress. (Amora v. COMELEC, G.R. 19228, 2011) An officer who misrepresented his or her qualification, e.g. educational attainment and

eligibility for government service, is guilty of plain and simple dishonesty as it refers to the act of intentionally making a false statement on any material fact in securing one’s appointment. (Momongan v. Sumayo, A.M. No. P-10-2767, 2011) All public officers and employees shall take an oath or affirmation to uphold and defend the Constitution. (Phil. Const., art. IX-B, § 4) Limits on Legislature’s Power to Prescribe Qualifications: 1. The legislature may not reduce or increase the qualifications prescribed in an exclusive manner by the Constitution. 2. The legislature may prescribe only general qualifications. 3. The qualifications must be relevant to the office for which they are prescribed. Where a person is prohibited from holding two offices at the same time, his appointment or election to a second office may operate to vacate the first or he may be ineligible for the second. A person who accepts and qualifies for a second and incompatible office is deemed to vacate, or by implication, to resign from the first office. The same rule obtains where the holding of more than one position is prohibited by constitutional or statutory provision although the second position is not incompatible with the first. In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. Those Prescribed by the Constitution POSITION QUALIFICATIONS 1. A natural-born citizen of the Philippines 2. A registered voter 3. Able to read and write President and 4. At least 40 years of age on Vice President the day of the election; and 5. A resident of the Philippines for at least 10 years immediately preceding such election. 1. A natural-born citizen of the Philippines 2. On the day of the election, is Senators at least 35 years of age 3. Able to read and write 4. A registered voter; and Page 268 of 479

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5. A resident of the Philippines for not less than 2 years immediately preceding the day of the election

Members of the House of Representatives

Members of the SC and lower collegiate court

Chairman and the Commissioners of the CSC

1. A natural-born citizen of the Philippines 2. On the day of the election, is at least 25 years of age 3. Able to read and write 4. Except the party-list representatives, a registered voter in the district in which he shall be elected; and 5. A resident thereof for a period of not less than 1 year immediately preceding the day of the election. 1. A natural-born citizen of the Philippines 2. A Member of the SC must be at least 40 years of age; and 3. Must have been for 15 years or more, a judge of a lower court or engaged in the practice of law in the Philippines. 4. A member of the judiciary must be a person of proven competence, integrity, probity and independence. (1987 Consti, art. VIII, sec. 7(3)) 1. Natural-born citizens of the Philippines and 2. At the time of their appointment, at least 35 years of age 3. With proven capacity for public administration; and 4. Must not have been candidates for any elective position in the elections immediately preceding their appointment.

Chairman and the Commissioners of the COMELEC

Chairman and the Commissioners of the COA

Chairman and Members of the Commission on Human Rights

1. Natural-born citizens of the Philippines and 2. At the time of their appointment, at least 35 years of age 3. Holders of a college degree; and 4. Must not have been candidates for any elective positions in the immediately preceding elections 5. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years. 1. A natural-born citizens of the Philippines 2. At the time of their appointment, at least 35 years of age 3. Certified Public Accountants with not less than 10 years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least 10 years; and 4. Must not have been candidates for any elective position in the elections immediately preceding their appointment 5. At no time shall all Members of the Commission belong to the same profession. 1. Natural-born citizens of the Philippines; and 2. A majority of whom shall be members of the Bar. 3. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law.

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E. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS Disqualification It is the presence of circ*mstances and qualities which makes an individual ineligible from holding a public office. Lack of disqualifications is itself a qualification. Disqualifications: (IM-RIPE-C2ORN-LG) (1) Mental or physical Incapacity (2) Misconduct or crime (3) Removal or suspension from office (4) Impeachment (5) Previous tenure of office (6) Being an Elective official (7) Consecutive terms (8) Having been a Candidate for any elective position (9) Holding more than One office (10) Relationship with the appointing power (11) Office Newly created or the emoluments of which have been increased (12) Grounds under the Local Government Code General Rule: Appointive and elective officials cannot hold multiple employment or office during their tenure. Exception: Appointive officials may hold other office when allowed by law or by the primary functions of their positions. (Sec 7, Art IX-B) Exception to holding multiple offices: (1) Those provided for under the Constitution, such as: (a) President as head of NEDA (Art XII, Sec. 9) (b) VP may be appointed as Cabinet Member (Art VII, Sec. 3) (c) VP as Acting President (Art VII, Sec. 7) (d) In and ex-officio capacity (CLU v. Exec. Sec., G.R. No. 83896, 1991) and (2) Posts occupied by Executive officials specified in Section 13, Article VII without additional compensation in ex officio capacities as provided by law and as required by the primary functions of the officials’ offices. (Funa v. Agra, G.R. 191644, 2013) General Disqualifications under the Constitution: (1) No candidate who lost in an election shall, within one year after such election, be appointed to any office in Government. (Phil. Const. art. IX-B, §VI) BACK TO TOC

(2) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (Phil. Const., art. IX-B, §7(1)) (3) Unless otherwise provided by law or by the primary functions of his position, no appointive official shall hold any other position in Government. (Phil. Const., art. IX-B, § 7(2)) Special Disqualifications under the Constitution: (1) The President, Vice-president, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. (Phil. Const. art. VIII, §13) (2) No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term, without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increase during the term for which he was elected. (Phil. Const. art. VI, § 13) (3) The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasijudicial or administrative functions. (Phil. Const. art. VIII, § 12) (4) No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. (Phil. Const. art. IX-A, § 2) The same disqualification applies to the Ombudsman and his deputies. (Phil. Const. art. XI, § 8) (5) The Ombudsman and his Deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from office. (Phil. Const. art. XI, § 11) (6) Members of Constitutional Commissions, the Ombudsman and his deputies must not have been Candidates for any elective position in the elections immediately preceding their appointment. (Phil. Const. art. IX-B, IX-C, IX-D, §. 1; art. XI, § 8) (7) Members of the Constitutional Commissions, the Ombudsman and his deputies are appointed to a term of seven (7) years, without reappointment. (Phil. Const. art. IX-B, § 1(2); art. IX-C, § 1(2); Art. IX-D, §. 1(2); art. IX, §11) (8) The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Page 270 of 479

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Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations (Phil. Const.art. VII, § 13, Art. VII) PD 807, Sec. 49 prohibits the appointment of a Senator or Congressman to any office which may have been created or emoluments thereof increased during the term for which he was elected. When the Constitution has attached a disqualification to the holding of any office, Congress cannot remove it under the power to prescribe qualifications as to such offices as it may create. The Constitution imposes limitations on the right of certain officials to hold more than one office at the same time. (1) The President, Vice President, Members of the Cabinet, their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. (2) A Senator or Member of the House of Representatives may not hold any office or employment in the Government, or any subdivision, agency, or instrumentality, including GOCCS or their subsidiaries, during his term (not tenure) without forfeiting his seat. (3) The members of the Supreme Court and of other courts established bylaw shall not be designated to any agency performing quasijudicial or administrative functions. (4) A member of the Constitutional Commission shall not, during his tenure, hold any other office or employment. (5) During their tenure, the Ombudsman and his deputies are subject to the same disqualifications and prohibitions as provided for members of the Constitutional Commissions. (6) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency, or instrumentality, including GOCCs or their subsidiaries. (7) No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the government including GOCCs or any of their subsidiaries.

Spoils Systems and Political Lame Ducks SPOILS SYSTEM

POLITICAL LAME DUCKS

No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (1987 Const, art. IX-B, sec. 7)

No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government of any government-owned or controlled corporations or in any of its subsidiaries. (1987 Const, Art. IX-B, Sec. 6)

The disqualification subsists only during the tenure in office of the elective official. He may be appointed provided he forfeits his seat. Examples of exceptions: 1. The Vice President may be appointed as a Cabinet member 2. A Congressman may sit in the Judicial and Bar Council 3. To be eligible to hold any other office, the elected official must first resign from his office

Members of the Civil Service shall not have been candidates for any elective position in the elections immediately preceding their appointment. (1987 Const, art. IX-B, sec. 1(1))

Except for losing candidates in barangay elections no candidate who lost in any election shall, within 1 year after such election, be appointed to any office in the Government or any government-owned or controlled corporations or in a any of their subsidiaries.” (Local Government Code, Sec. 94)

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Power of Congress to Prescribe Disqualifications In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. Restrictions (1) Congress may not add disqualifications where the Constitution has provided them in such a way as to indicate an intention that the disqualifications provided shall embrace all that are to be permitted; and (2) When the Constitution has attached a disqualification to the holding of any office, Congress cannot remove it under the power to prescribe qualifications as to such offices as it may create Divestment When a public official is in a conflict-of-interest situation. Such official must resign from his position in any private business enterprise within 30 days from his assumption of office and/ or divest himself of his shareholdings or interest within 60 days from such assumption. Duration of Qualification Eligibility to an office should be construed as of a continuing nature and must exist at the commencement of the term and during occupancy of the office. The reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment and not the date of its approval by the CSC or the date of resolution of the protest against it (CSC v de la Cruz, GR No 158737, August 31, 2004) Persons required to take an Oath of Office under the Constitution (1) All public officers and employees (2) President, VP, or the acting President (3) All members of the AFP Oath of Office It is a qualifying requirement for a public office. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered plenary and complete. Until then, he has none at all and for as long as he has not qualified, the holdover officer is the rightful occupant. Inhibitions It is a restraint upon the public officer against the doing of certain acts which may be legally done by others.

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Inhibitions under the Constitution (1) The President, Vice-President, Cabinet Members and their deputies and assistants shall not, during tenure, directly or indirectly practice any other profession, participate in any business or be financially interested in any contract with the Government. They shall strictly avoid conflict of interest in the conduct of their office. (2) No Senator or Member of the House may hold any other office or employment in the Government during his term without forfeiting his seat (3) No Senator or Member of the House may personally appear as counsel before any court of justice or before the Electoral Tribunal, or quasi-judicial and other administrative bodies (4) No Senator or Member of the House shall directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, during his term of office (5) No Member of the Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or special privilege granted by the Government during his term of office. This inhibition applies as well to the Ombudsman and his deputies. (6) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. Practice of Profession (1) All governors, city and municipality mayors, are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives; (2) Sanggunian members may practice their professions, engage in any occupation, or teach in schools, except during session hours, Sanggunian members who are also members of the Bar shall not: (a) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency or instrumentality of the government is the adverse party; (b) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; Page 272 of 479

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(c) Collect any fee for their appearance in administrative proceeding involving the local government until of which he is an official; and (d) Use property and personnel of the Government except when the Sanggunian member concerned is defending the interest of the government (3) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency, provided that officials concerned do not derive monetary compensation therefrom.

F. POWERS AND DUTIES OF PUBLIC OFFICERS Extent of Powers or Authority (1) Expressly conferred upon him by the law under which he has been appointed or elected. (2) Expressly annexed to the office by the law which created it or some other law referring to it. (3) Attached to the office as an incident to it. Consequence of Holding Office To hold an office means to possess or to occupy the office, or to be in possession and administration of the office, which implies nothing less than the actual discharge of the functions and duties of the office. (Funa v. Agra, G.R. 191644, 2013) Doctrine of necessary implication All powers necessary to the exercise of the power expressly granted are deemed impliedly granted. The fact that a particular power has not been expressly conferred does not necessarily mean that it is not possessed by the officer claiming it. Ministerial Powers v. Discretionary Powers Ministerial Powers Discretionary Powers When it is absolute, When it requires the certain, and imperative exercise of reason and involving merely discretion in determining execution of a specific how or whether the act duty arising from fixed shall be done or the and designated facts. course pursued. NOTE: The law exacting its discharge prescribes NOTE: The officer is and defines the time, expected to discharge mode, and occasion of its the duty directly and not performance with such through the intervening certainty that nothing is mind of another. left for judgment or discretion.

It is susceptible of delegation and can be compelled by judicial action.

General Rule: It cannot be delegated to another Exception: Power of the President to conclude treaties may be assigned to a treaty panel, which can negotiate the treaty on his behalf, under his instructions and subject to his approval.

Constitutional Duties of Public Officers (1) To be accountable to the people, to serve them with utmost responsibility, integrity, loyalty, and efficiency; to act with patriotism and justice; and to lead modest lives (2) Submit a declaration under oath of assets, liabilities, and net worth upon assumption of officer and thereafter as may be required; (3) Owe the State and Constitution allegiance at all times. Duties of Public officers, In General (1) Duty to obey the law; (2) Duty to accept and continue in office; (3) Duty to accept burden of office; (4) Duty as to diligence and care in the performance of official duties; (5) Duty in choice and supervision of subordinates; (6) Duty to perform official acts honestly, faithfully, and to the best of his ability; (7) Duty not to use his official power to further his own interest Territorial Limitation and Duration of Authority The authority of all public officers is limited and confined to that territory over which the law, by virtue of which they claim, has sovereign force. The authority is limited in its exercise to that term during which he is by law invested with the rights and duties of the office. Alter Ego Principle The acts of the Secretaries of the departments, performed and promulgated in the regular course of business are, unless disapproved or reprobated by the President, presumptively the acts of the President. (Carpio v Executive Secretary, GR No 96409, February 14, 1992)

Limits of the Alter Ego Doctrine There are certain powers that are reserved to the President which cannot be exercised by the Secretaries of the departments such as: Page 273 of 479

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(1) Declaration of Martial Law (2) Suspension of the privilege of writ of habeas corpus (3) Pardoning Power (4) Purely discretionary powers (e.g. Presidential Appointments) Principle of Hold-Over In the absence of any express of implied constitutional or statutory provision to the contrary, the public officer is entitled to hold office until his successor shall have been duly chosen and shall have qualified. (Lecaroz v. Sandiganbayan, GR No 130872, March 25, 1999) Effect when law fixes specific date for the end of a term When the law fixes a specific date for the end of the term, there is an implied prohibition against holdover (Nueno v Angeles, GR no 89, February 1, 1946) Nature of Officer during Hold-Over During the period of hold-over, the public officer is a de jure officer (Bautista v Fajardo, GR No 13799, September 23, 1918) Classifications of Powers and Duties As to their Nature (1) Ministerial — the law exacting its discharge prescribes and defines the time, mode and occasion of its performance and requires neither judgment nor discretion. This kind of duty is susceptible of delegation. (2) Discretionary — a public officer has the right to decide how and when the duty shall be performed. A public officer cannot delegate this kind of duty. General Rule: Mandamus will not lie for the performance of a discretionary duty Exceptions: (a) When the discretion granted is only as to the manner of its exercise and not the discretion to act or not to act, the court may require a general action (b) Grave abuse of discretion

As to the obligation of the officer to perform his powers and duties (1) Mandatory — where the provisions of a statute relating to public officers are intended for the protection of the citizen and

to prevent a sacrifice of his property, and by a disregard of such provision, his rights might be and generally would be injuriously affected (2) Permissive — statutes define the time and mode in which the public officers will discharge their duties, and those which are obviously designed merely to secure order, uniformity, system and dispatch in public business. As to the relationship of the officer to his subordinates (1) Power of Control — power of an officer to manage, direct or govern, including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter (2) Power of Supervision — it is the power of mere oversight over an inferior body and does not include any restraining authority over such body. The officer merely sees to it that rules are followed but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.

G. RIGHTS OF PUBLIC OFFICERS In General (1) Rights incident to public office (a) The rights of one elected or appointed to office are, in general, measured by the Constitution or the law under which he was elected or appointed (b) Right to office –The just and legal claim to exercise the powers and the responsibilities of the public office. (2) Rights as a citizen (a) Protection from publication commenting on his fitness and the like • The mere fact that one occupies a public office does not deprive him of the protection accorded to citizens by the Constitution and the laws. • However, by reason of the public character of his employment or office, a public officer is, in general, held not entitled to the same protection Page 274 of 479

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from publications commenting on his fitness and the like, as is accorded to the ordinary citizen. (b) Engaging in certain political and business activities • The governmental interest in maintaining a high level service by assuring the efficiency of its employees in the performance of their tasks may require public employees to suspend or refrain from certain political or business activities that are embraced within the constitutional rights of others, when such activities are reasonably deemed inconsistent with their public status and duties. (1) Right to Wages; (2) Right to Preference in Promotion subject to the discretion of the appointing authority; (3) Right to Vacation and Sick leave; (4) Right to Maternity Leave; (5) Right to Retirement Pay; (6) Other rights: a. Right to reimbursem*nt for expenses incurred in due performance of duty (but this does not include transportation allowance for those using government vehicles); b. Right to be indemnified against liabilities they may incur in bona fide discharge of duties; c. Right to longevity pay; d. Right to self-organization

Salary not subject to garnishment Reasons: (1) While the money is still in the hands of the disbursing officer, it belongs to the government (2) Public policy forbids such practice since it would be fatal to the public service

(3) The garnishment or attachment of an officer’s salary is tantamount to a suit against the State in its own court, which is prohibited except with his consent Prohibition on Double Compensation The purpose of the prohibition against additional or double compensation for public officials: to manifest a commitment to the fundamental principle that a public office is a public trust. It is expected of a government official or employee that he keeps uppermost in mind the demands of public welfare. He is there to render public service. He is entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the overriding consideration. The temptation to further personal ends, public employment as a means for the acquisition of wealth, is to be resisted. There must be awareness on the part of the officer or employee of the government that he will receive only such compensation as may be fixed by law. With such a realization, he is expected not to avail himself of devious or circuitous means to increase the remuneration attached to his position. (Veloso v. COA, G.R. 193677, 2011) Claims for double retirement benefits fall under the prohibition against the receipt of double compensation when they are based on exactly the same services and on the same creditable period. (Ocampo v. Commission on Audit, G.R 188716, 2013) RIGHT TO ORGANIZATION This shall not be denied to government employees. The Constitution grants to government employees in the civil service the right to form unions enjoyed by workers in the private sector. Section 8 of Article 3 – “Right of the people including those employed in the public and private sectors to form associations, unions, or societies for purposes not contrary to law shall not be abridged.” Section 3 Par 2 of Article 13 which mandates the State to “guarantee the rights of all workers to self organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. PROMOTION The movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay. Page 275 of 479

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DEMOTION There is demotion when an employee is appointed to a position resulting in diminution of duties, responsibilities, status or rank, which may or may not involve a reduction in salary. Where an employee is appointed to a position with the same duties and responsibilities but with rank and salary higher than those enjoyed in his previous position, there is no demotion and the appointment is valid. (Bautista v. CSC, G.R. 185215, 2010)

of solutio indebiti (GSIS v. COA, G.R. No. 138381, 2004).

Demotion to a lower rate of compensation is equivalent to removal if no cause is shown for it when it is not part of any disciplinary action. In this case, demotion is not proper.

Exceptions: (BM-NID) (1) Bad faith (2) Malice; (3) Negligence; (4) Death or Injury to persons or damage to property

NEXT-IN-RANK RULE The person next in rank shall be given preference in promotion when the position immediately above his is vacated. The concept of next-in-rank does not import any mandatory or peremptory requirement that the person next in rank must be appointed to the vacancy. The appointing authority has the discretion to fill the vacancy under the next-in-rank rule or by any other method authorized by law (e.g. by transfer). HOLD-OVER When a public officer’s term has expired or his services are terminated, but he should continue holding his office until his successor is appointed or chosen and qualifies. RETIREMENT Retirement has been defined as a withdrawal from office, public station, business, occupation, or public duty. It involves a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter, after reaching a certain age, agrees and/or consents to sever his employment with the former. Retirement plans create a contractual obligation in which the promise to pay benefits is made in consideration of the continued faithful service of the employee for the requisite period. Before a right to retirement benefits vests in an employee, he must have met the stated conditions of eligibility with respect to the nature of employment, age, and length of service. This is a condition precedent to his acquisition of rights thereunder. (Reyes v. CA, G.R. 167002, 2011) If retirement benefits have been given to an entity disqualified to receive the same, there is an obligation to return the amounts under the principle

H. LIABILITIES OF PUBLIC OFFICERS General Rule: A public officer is not liable for injuries sustained by another due to official acts done within the scope of his authority. (REVISED PENAL CODE, art. 11 (5)).

Administrative liability is separate from and independent of criminal and civil liability It is a fundamental principle in the law on public officers that administrative liability is separate and distinct from penal and civil liabilities for the same act or omission. A simple act or omission can give rise to criminal, civil or administrative liability, each independently of the others. This is known as the threefold liability rule. Thus, absolution from a criminal charge is not a bar to an administrative prosecution, and vice versa. The dismissal of the administrative cases against the petitioners will not necessarily result in the dismissal of the criminal complaints filed against them. In the same vein, the finding of civil liability against a public officer will not necessarily lead to a similar finding in the administrative action; nor will a favorable disposition in the civil action absolve him from administrative liability. (Regidor, Jr. v. People, G.R. 166086-92, 2009; Office of the President v. Cataquiz, G.R. 183445, 2011) Proof of damage or actual injury Proof of damage or actual injury is not required for administrative liability to attach to a public officer. It is enough that the act was contrary to the established norms of conduct for government service. However, an employee of GSIS who altered IP addresses without authority, not in the performance of his duties, will not be guilty of grave misconduct but conduct prejudicial to the best interest of service. To constitute misconduct, the act or acts must have a direct relation to and be connected with the performance of official duties. (GSIS v. Mayordomo, G.R. No. 191218, 2011) Page 276 of 479

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Presumption of good faith in the discharge of official duties Every public official is entitled to the presumption of good faith in the discharge of official duties. Although a public officer is the final approving authority and the employees who processed the transaction were directly under his supervision, personal liability does not automatically attach to him but only upon those directly responsible for the unlawful expenditures. (Dimapilis-Baldoz v. Commission on Audit, G.R. 199114, 2013) Concept of public office is a public trust The concept of public office is a public trust and the corollary requirement of accountability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective local official's administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office, or even another elective post. Election is not a mode of condoning an administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for a different term is fully absolved of any administrative liability arising from an offense done during a prior term. (CarpioMorales v. CA and Binay, G.R. 217126-27, 2015) Liability for acts done by direction of superior officer No accountable officer shall be relieved from liability by reason of his having acted under the direction of a superior officer in paying out, applying, or disposing of the funds of property with which he is chargeable, unless prior to that act, he notified the superior officer in writing of the illegality of the payment, application, or disposition. (De Leon, The Law on Public Officers and Election Law, 306-307, 2019) Liability of Subordinate Officers No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instructions ofhis superiors (Sec. 39, Chapter 9, Book I, Admin. Code) Non-Applicability of the Doctrine of Command Responsibility and the Principle of Respondeat Superiorto Public Officers Neither the principle of command responsibility (in military or political structural dynamics) nor the doctrine of respondeat superior(in quasi delicts)

applies in the law of public officers. The negligence of the subordinate cannot be ascribed to his superior in the absence of evidence of the latter’s own negligence (Reyes v. Rural Bank of San Miguel, G.R. No. 154499, 2004) Exception: The President, being the commanderin-chief of all armed forces, necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine. (In the Matter of the Petition for Writ of Amparo and Habeas Data in favor of Noriel H. Rodriguez; Rodriguez v. MacapagalArroyo,G.R. No. 191805, 2011) Three-Fold Responsibility of Public Officers A public officer is under a three-fold responsibility for violation of duty or for wrongful act or omission: (1) Civil Liability: if the individual is damaged by such violation, the official shall, in some cases, be held liable civilly to reimburse the injured party (2) Criminal Liability: if the law has attached a penal sanction, the officer may be punished criminally. The mere fact that an officer is acting in an official capacity will not relieve him from criminal liability. (3) Administrative Liability: such violation may also lead to imposition of fine, reprimand, suspension or removal from office, as the case may be. (De Leon, The Law on Public Officers and Election Law, 249-250, 2019) Sexual harassment engenders threefold liability Under RA 7877, sexual harassment engenders three-fold liability, one of which is administrative liability in order to protect public service. The purpose of an administrative action is to protect the public service by imposing administrative sanctions to an erring public officer. Courts and administrative bodies should not hesitate to penalize insidious acts of sexual harassment, especially when committed by high-ranking public officers. In the government, the CSC promulgated CSC Resolution No. 01-0940 which applies to all government officials and employees. The said resolution provides for the definition of sexual harassment, how it may take place, and the different forms it may be demonstrated. The Court stated that casual gestures of friendship and camaraderie, done during festive or special occasions and with other people present, do not constitute sexual harassment. However in this case, the Court found that the acts done by the petitioner such as grabbing her hand, kissing her, touching her thigh, etc. constituted sexual harassment. (Escandor v. Page 277 of 479

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People, G.R. No. 211962, July 06, 2020; Penned by J. Leonen) Liability of Ministerial Officers (1) Nonfeasance -Neglect or refusal to perform an act which is the officer’s legal obligation to perform (2) Misfeasance –Failure to use that degree of care, skill, and diligence required in the performance of official duty (3) Malfeasance–The doing, through ignorance, inattention or malice, of an act which he had no legal right to perform Statutory Liability (1) Art. 32, Civil Code – liability for failure or neglect to perform official duty (2) Art. 33, Civil Code – liability for violating rights and liberties of private individuals (3) Art. 34, Civil Code–liability of peaceofficers for render aid or protection to a person; subsidiary liability of municipal corporations in such case4.Sec. 38(2), Chapter 9, Book I, Admin. Code–liability for neglecting to perform a duty without just cause within (i) a period fixed by law or regulation; or (ii)a reasonable period, if no period is fixed (Nachura, Outline review in political Law)

1. PREVENTIVE SUSPENSION AND BACK SALARIES PREVENTIVE SUSPENSION Merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then, as a penalty, he is suspended, removed or dismissed. (Villasenor v. Sandiganbayan, G.R. No. 180700, 2008) Two kinds of preventive suspension of government employees charged with offenses punishable by removal or suspension: (1) Preventive suspension pending investigation; and (2) Preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation; the purpose thereof is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. (Ombudsman v. Francisco, G.R. 172553, 2011) It is now settled that Sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public official against whom a valid information charging violation of that law, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property is filed. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continuing committing malfeasance in office. (Villasenor v. Sandiganbayan, G.R. 180700, 2008) There is no dispute as to the power of the Ombudsman to place a public officer charged with an administrative offense under preventive suspension. That power is clearly confined under Section 24 of R.A. No. 6770. The law sets forth two conditions that must be satisfied to justify the issuance of an order of preventive suspension pending an investigation, to wit: (1) The evidence of guilt is strong; and (2) Either the following circ*mstance co-existing with the first requirement: (a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) The charge would warrant removal from the service; or (c) The respondent’s continued stay in office may prejudice the case filed against him. (Ombudsman v. Valeroso, G.R. 167828, 2007) Prior notice and hearing are not required in the issuance of a preventive suspension order. Settled is the rule that prior notice and hearing are not required in the issuance of a preventive suspension order. (Carabeo v. CA, G.R. 178000/178003, 2009) GROUNDS FOR PREVENTIVE SUSPENSION OF POLICE OFFICERS [RA 8551, SEC. 55] (Preventive Suspension Pending Criminal Case) Page 278 of 479

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The court shall immediately suspend the accused from office for a period not exceeding 90 days from arraignment: (1) Upon the filing of a complaint or information sufficient in form and substance against a member of the PNP; (2) For grave felonies where the penalty imposed by law is 6 years and 1 day or more. Exception: If it can be shown by evidence that the accused is harassing the complainant and/or witnesses, the court may order the preventive suspension of the accused PNP member even if the charge is punishable by a penalty lower than 6 years and 1 day. General Rule: The period of preventive suspension shall not be more than 90 days. Exception: If the delay in the disposition of the case is due to the fault, negligence or petitions of the respondent. The preventive suspension may be sooner lifted by the court in the exigency of the service upon recommendation of the chief, PNP. Such case shall be subject to continuous trial and shall be terminated within 90 days from arraignment of the accused. Back salaries during preventive suspension General Rule: A public official is not entitled to any compensation if he has not rendered any service. (Reyes v. Hernandez, G.R. No. Apr. 8, 1941) Two conditions before an employee may be entitled to back salaries in preventive suspension cases: (1) The employee must be found innocent (or exonerated) of the charges; and (2) His suspension must be unjustified or the official was innocent. (CSC v. Cruz, G.R. 187858, 2011) REMEMBER: 1) For Preventive Suspension Pending Investigation – No payment of salary during the suspended period even if exonerated. (Gloria v. CA, GR No. 131012, 21 April 1999) 2) For Preventive Suspension Pending Appeal – Payment of salary allowed during the suspended period if exonerated and suspension is unjustified. (Gloria v. CA, GR No. 131012, 21 April 1999) Thus: a) Exonerated means that the finding of administrative liability is reversed OR the

ultimate finding is not the same as the administrative charge. If administrative penalty is suspension, then suspension is justified – not entitled to back salary.

The reasoning behind these conditions runs this way: although an employee is considered under preventive suspension during the pendency of a successful appeal, the law itself only authorizes preventive suspension for a fixed period; hence, his suspension beyond this fixed period is unjustified and must be compensated. The rule on payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, is already settled in this jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed not only if he is found innocent of the charges that caused his suspension (Sec. 35, RA 2260), but also when the suspension is unjustified. (CSC v. Cruz, G.R. 187858, 2011). The mere reduction of the penalty on appeal does not entitle a government employee to back salaries if he was not exonerated of the charge against him. If the exoneration of the employee is relative (as distinguished from complete exoneration), an inquiry into the factual premise of the offense charged and of the offense committed must be made. If the administrative offense found to have been actually committed is of lesser gravity than the offense charged, the employee cannot be considered exonerated if the factual premise for the imposition of the lesser penalty remains the same. (CSC v. Cruz, G.R. No. 187858, 2011). Preventive Suspension Pending Investigation vs. Pending Appeal PREVENTIVE SUSPENSION PENDING INVESTIGATION

PREVENTIVE SUSPENSION PENDING APPEAL

Not a penalty. It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that

If the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated. No back salaries shall be due for the period of preventive suspension PENDING INVESTIGATION but Page 279 of 479

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BAR OPERATIONS 2023 period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation, respondent is found innocent of the charges and is exonerated, he should be reinstated. (CSC v. Alfonso, G.R. 179452, 2009)

only for the period of preventive suspension PENDING APPEAL, in the event the employee is exonerated. (Gloria v. CA, G.R. 131012, 1999)

2. ILLEGAL DISMISSAL, REINSTATEMENT AND BACK SALARIES Reinstatement The issuance of an appointment to a person who has been previously appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, or to the restoration of one who has been exonerated of the administrative charges filed against him. (Galang v. Land Bank, G.R. 175276, 2011) The rule is settled that back salaries may be awarded to civil servants only if they have been illegally dismissed and thenceforth ordered reinstated, or to those acquitted of the charge against them. (Tanjay Water District v. Quinit, Jr., G.R. 160502, 2007) When an official or employee was illegally dismissed and his reinstatement has later been ordered, for all legal purposes he is considered as not having left his office. Therefore, he is entitled to all the rights and privileges that accrue to him by virtue of the office he held. (Galang v. Land Bank, G.R. 175276, 2011) A public officer is not entitled to reinstatement and back salaries, when removal or suspension is lawful. The denial of salary to an employee during the period of his suspension, if he should later be found guilty, is proper because he had given ground for his suspension. It does not impair his constitutional rights because the Constitution itself allows suspension for cause as provided by law and the law provides that an employee may be suspended pending an investigation or by way of penalty. (Bangalisan v. CA, G.R. 124678, 1997) A public officer is entitled after his acquittal not only to reinstatement but also to payment of the salaries, allowances, and other benefits withheld from him by

reason of his discharge from the service even if there has been valid suspension from the service pending the adjudication of the criminal case. (P/Chief Superintendent Calinisan v. SPO2 Roaquin, G.R. 159588, 2010) Reinstatement v. Backwages: REINSTATEMENT

BACKWAGES

Restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal and is, as an ordinary rule, entitled only to the last salary in that position.

A form of relief that restores the income that was lost by reason of unlawful dismissal.

Where to file claims for backwages: The claim for recovery of back salaries involves settlement of accounts or claims against the government and should therefore be filed with the Commission on Audit. Amount of Back Salaries An illegally terminated civil service employee is entitled to back salaries limited only to a maximum period of five years, and not full back salaries from his illegal termination up to his reinstatement. (Galang v. Land Bank, G.R. 175276, 2011)

IMMUNITY OF PUBLIC OFFICERS

Official immunity Only protects public officials from tort liability for damages arising from acts or functions in the performance of their official duties. Public officers may be sued to restrain them from enforcing an act claimed to be unconstitutional. Exceptions: when liability does not devolve ultimately to the State such as: (1) A petition to require official to do his duty; (2) A petition to restrain him from doing an act; (3) To recover taxes from him; (4) Those where the officer impleaded may by himself alone comply with the decision of the court; (5) Where the government itself has violated its own laws. Page 280 of 479

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Where a public officer has committed an ultra vires act, or where there is a showing of bad faith, malice or gross negligence, the officer can be held personally accountable even if such acts are claimed to have been performed in connection with official duties. (Wylie v. Rarang, G.R. 74135, 1992) Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. (Republic v. Sandoval, G.R. 84607, 1993) Where the public officer is sued in his personal capacity, state immunity will not apply. (Lansang v. CA, G.R. 102667, 2000) Presidential Immunity Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people but he may be removed from office only in the mode provided by law and that is by impeachment. (David v. Arroyo, G.R. No. 171396, 2006)

J. DISTINGUISH: DE FACTO AND DE JURE OFFICERS De Facto Officer In Luna v. Rodriguez, GR No. L-12647, 26 November 1917, the Supreme Court explained/described the doctrine as follows: [O]ne whose acts, though not those of a lawful officer, the law, upon principles of policy and justice will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised: (a) Without a known appointment/election, but under such circ*mstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumes to be; (b) Under color of a known or valid appointment or election, where the officer has failed to conform to some precedent requirement or conditions, for example, a failure to take the oath or give a bond or similar defect; (c) Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of

some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public; and (d) Under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such. [Citing State v. Carroll, 38 Conn., 449; Wilcox v. Smith, 5 Wendell [N.Y. ], 231; 21 Am. Dec., 213; Sheehan’s Case, 122 Mass., 445; 23 Am. Rep., 323.] Requisites (1) Valid and legitimate office; (2) Actual physical possession of the office in good faith; (3) Color of right or general acquiescence by the public Legal Effects of Acts of De Facto Officers: The De Facto Office Doctrine The primordial concern that the doctrine seeks to address remains to be the protection of the public, who rely on the acts of a person performing the duties of an office pursuant to an irregular or defective authority. Precluding its application to cases where there was no good faith possession of the office, despite having a color of authority or right to the office, would render the doctrine's purpose nugatory. [Arroyo v. CA, GR No. 202860, 10 April 2019] A de facto officer’s acts are just as valid for all purposes as those of a de jure officer, in so far as the public or third persons who are interested therein are concerned, viz.: “A de facto officer is one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. He may also be one who is in possession of an office, and is discharging [his] duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent is not a mere volunteer. Consequently, the acts of the de facto officer are just as valid for all purposes as those of a de jure officer, in so far as the public or third persons who are interested therein are concerned.” (Funa v. Agra, GR No. 191644, 19 February 2013) So far as the rights of a third person are concerned, the lawful acts of a de facto officer if done within the scope and by the apparent authority of the office, is considered valid and binding as if he were the officer legally elected and qualified for the office and in full possession thereof.

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Entitlement to Salary General Rule: Rightful incumbent may recover from a de facto officer the salary received by the latter during the time of wrongful tenure even though the latter is in good faith and under color of title. Exception: When there is no de jure officer, the de facto officer is entitled to salaries for the period when he actually discharged functions. (Civil Liberties Union v. Executive Secretary, GR No 83896, February 22, 1991) How De Facto Officer Ousted A de facto officer may be ousted in a direct proceeding where the title will be the principal issue, not in a collateral action or in an action to which he is not a party. The proper remedy is to institute quo warranto proceeding under Rule 66 of the ROC. The title to a public office may not be contested except directly, by quo warranto. De Jure Officer One who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. When the officer de jure is also the officer de facto, the lawful title and possession are united. Usurper One who takes possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent. Note that it is the color of authority, not the color of title, that distinguishes an officer de facto from a usurper. It means that the authority to hold office is by some election or appointment, however irregular or informal. De Jure v De Facto Officer A de jure officer has a legal right to the office but he may not be in possession of the office; while a de facto officer possesses the office because of the color of authority. De Facto v. Usurper DE FACTO OFFICER

USURPER

AS TO MODE OF ACQUIRING POSSESSION OF OFFICE Officer under any of the 4 circ*mstances mentioned.

authority, either actual or apparent. AS TO COLOR OF AUTHORITY Has color of authority

Has neither lawful title nor color of right or title to office

AS TO VALIDITY OF ACTS Acts are valid as to the public until such time as his title to the office is adjudged insufficient

Acts are absolutely void and can be impeached in any proceeding at any time, unless and until he continues to act for so long a time as to afford a presumption of his right to act

AS TO ENTITLEMENT OF SALARIES May be entitled to compensation for services rendered

Not entitled to compensation

K. TERMINATION OF OFFICIAL RELATION General rule: Upon the expiration of the officer’s term, his rights, duties and authority as a public officer must ipso facto cease. Exception: Unless he is authorized by law to hold over. Where an office is created, or an officer is appointed, for the purpose of performing a single act or the accomplishment of a given result, the office terminates and the officer’s authority ceases with the accomplishment ofthe purposes which called it into being. Term of office–the time during which the officer may claim to hold the office as of right and fixes the interval after which the several incumbents shall succeed one another. It is a fixed and definite period oftime to hold office, perform its functions and enjoy its privileges and emoluments until the expiration of said period. Tenure of office–the period during which the incumbent actually holds office.

One who takes possession of an office and undertakes to act officially without any Page 282 of 479

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Modes of Termination: (TAD PAIR CAIRR) (1) Natural causes: (TAD) (a) Expiration of the Term or tenure of office - his/her rights and duties ipso facto ceases, unless authorized to holdover. i. Tenure represents the term during which the incumbent actually holds office. ii. The tenure may be shorter (or, in case of holdover, longer) than the term for reasons within or beyond the power of the incumbent. However, a term, or the time during which the officer may claim to hold the office as of right, is not affected by the holdover. (Valle Verde v. Africa, G.R. 151969, 2009) (b) Reaching the Age limit (retirement) 65 years for public officers and employees (c) Death or permanent disability Acts or neglect of officer: (PAIR) (a) Prescription of Right to Office - Quo warranto is the proper remedy against a public officer or employee for his/her ouster from office which should be commenced within 1 year after the cause of such ouster; otherwise the action shall be barred. (b) Abandonment of Office - the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. There are, therefore, two essential elements of abandonment: first, an intention to abandon and second, an overt or “external” act by which the intention is carried into effect. Generally, a person holding a public office may abandon such office by nonuser or acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However, nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an

abandonment of the office. (Canonizado v. Aguirre, G.R. 133132, 2001) (c) Acceptance of an Incompatible office - It is a well-settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties. The incompatibility contemplated is not the mere physical impossibility of one person’s performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other. (Canonizado v. Aguirre, G.R. 133132, 2001). (d) Resignation – Formal renunciation or relinquishment of office. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment. Resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish the office, and its acceptance by competent and lawful authority. A "courtesy resignation" cannot properly be interpreted as resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power. (Ortiz v. COMELEC, G.R. 78957, 1988) Cessation from office by virtue of intervening resignation did not warrant the dismissal of the administrative complaint against the public officer, for the act complained of had been committed when he or she was still in the service. (Concerned Citizen v. Catena, A.M. OCA IPI 02-1321-P, 2013) Acts of the government or people: (CAIRR) (a) Conviction of a crime - termination results when the penalties of perpetual or temporary absolute disqualification or penalties of perpetual or temporary special disqualification Page 283 of 479

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are imposed upon conviction by final judgment in a trial court (b) Abolition of office (c) Impeachment - way of removing the President, Vice President, Members of the Supreme Court and the Constitutional Commissions and the Ombudsman. (d) Removal - ouster of the incumbent before the expiration of his/her term Grounds: i. Members of Congress – each House may punish its members for disorderly behavior with the concurrence of 2/3 of ALL its members. Suspension if imposed shall not exceed 60 days. ii. Civil Service Officers or Employees – for causes provided by law As a matter of law, a department secretary’s decision confirming the removal of an officer under his authority is immediately executory, even pending further remedy by the dismissed public officer. (Dimapilis-Baldoz v. Commission on Audit, G.R. 199114, 2013)Recall - refers to the election itself by means of which voters decide whether they should retain their local official or elect replacement. The ground for recall is “loss of confidence.” A petition for recall should be initiated by at least 25% of the total number of registered voters of the concerned LGU. REORGANIZATION involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. It alters the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them to make the bureaucracy more responsive to the needs of the public clientele as authorized by law. It could result in the loss of one’s position through removal or abolition of an office. A valid reorganization for the purpose of economy or for making the bureaucracy more efficient must pass the test of good faith; otherwise it is void ab initio. (Pan v. Pena, G.R. 174244, 2009)

If the reorganization was done in good faith, the abolition of positions, which resulted in loss of security of tenure of affected government employees, would be valid. Except those who hold constitutional offices, which provide for special immunity as regards salary and tenure, no one can be said to have any vested right to an office or salary. (Banda v. Ermita, G.R. No. 166620, 2010) The creation of the Truth Commission does not fall within the President’s power to reorganize. Section 31 of the Revised Administrative Code refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These refer to situations where a body or an office is already existent but a modification or alteration thereof has to be effected. (Biraogo v. The Philippine Truth Commission, G.R. 192935-36, 2010). The existence of any or some of the following circ*mstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: (1) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (2) Where an office is abolished and others are performing substantially the same functions is created; (3) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (4) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same function as the original offices; (5) Where the removal violates the order of separation provided in Section 3 hereof. (Cotiangco v. Province of Biliran, G.R. 157139, 2011) Prohibition on Financial Accommodation (PHIL. CONST., art. XI, § 16.) No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any governmentowned or controlled bank or financial institution to the: (1) President (2) Vice President Page 284 of 479

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(3) Members of the (a) Cabinet (b) Congress (c) Supreme Court (d) Constitutional Commissions (4) Ombudsman (5) Any firm or entity in which they have controlling interest, during their tenure Statement of Assets and Liabilities and Net Worth (PHIL. CONST., art. XI, § 17.) A public officer or employee shall upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. The following are required to disclose their declaration to the public in the manner provided by law: 1. President 2. Vice President 3. Members of the a. Cabinet b. Congress c. Supreme Court d. Constitutional Commissions e. Other constitutional offices 4. Officers of the Armed Forces with general or flag rank Involuntary Retirement Retirement is the termination of one's own employment or career, especially upon reaching a certain age or for health reasons. Retirement is voluntary when one decides upon one's own unilateral and independent volition to permanently cease the exercise of one's occupation. Retirement is deemed involuntary when one's profession is terminated for reasons outside the control and discretion of the worker. Impeachment resulting in removal from holding office falls under the column on involuntary retirement. (Re: Letter of Mrs. Ma. Cristina Roco Corona, A.M. No. 20-07-10-SC, January 12, 2021)

L. THE CIVIL SERVICE 1. SCOPE Civil Service Commission (CSC) Central personnel agency of the government Composition • Chairman and 2 commissioners BACK TO TOC

•

Appointed by the President with consent of the Commission on Appointments for a term of 7 years, without reappointment

Coverage of the Civil Service All branches, subdivisions, instrumentalities, and agencies of the government including GOCC with original charters. Authority of the Civil Service Commission (1) Limited to reviewing appointments on the basis of the Civil Service Law (2) Only allowed to check whether the appointee possesses the appropriate civil eligibility or the required qualification; CSC has no discretionary power Limitations to the power to appoint (1) The power does not include authority to make the appointment itself or to direct the appointing authority to change the employment status of an employee. (2) No authority to revoke appointment simply because it believed that another person is better qualified (3) No power to pass upon the qualifications or tenure of the appointing officer or declare the latter’s position vacant for an act that produced forfeiture of his office (4) Cannot change the tenure of office granted to appointee such as where the appointing authority indicated permanent appointment but CSC approved as temporary such appointment

2. Appointments to Civil Service Classifications (1) Career Characteristics: (1) Entrance based on merit and fitness to be determined by competitive examinations or based on highly technical qualifications; (2) Opportunity for advancement to higher career positions; and (3) Security of tenure Levels of Positions 1st Level: Clerical, trades, crafts and custodial service positions involving non-professional/subprofessional in a non-supervisory or supervisory capacity requiring less than 4 years of collegiate studies. 2nd Level: Professional, technical and scientific positions in a non-supervisory/supervisory capacity Page 285 of 479

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requiring at least 4 years of college work up to division chief level. 3rd Level: Career Executive Service positions The position of department manager is not a third level position which is appointed by the President. For said reason, a PEZA department manager only needs the approval of the PEZA Director-General to validate his appointment or re-appointment. As he need not possess a CESO or CSEE eligibility, the CSC has no valid and legal basis in invalidating his appointment or re-appointment. (Agyao v. CSC, G.R. 182591, 2011)

3. Personnel Actions

(2) Non-career Characteristics: (1) Entrance on bases other than those of the usual test of merit and fitness; (2) Tenure which is limited to: (a) Period specified by law; (b) Coterminous with that of appointing authority; (c) Subject to appointing authority’s pleasure; (d) Limited to the duration of a particular project. They, however, enjoy constitutional guarantee that they cannot be removed except for cause and after due hearing. Oppositions to Appointment Any person who feels aggrieved by the appointment of a person may file a protest against the appointment. Causes for protesting appointment (1) Appointee not qualified; (2) Appointee is not the next-in-rank; (3) In the case of appointment by transfer, reinstatement, or by original appointment, that the protestant is not satisfied with the written special reason(s) given by the appointing authority. Meaning of “For Cause” For reasons which the law and sound public policy recognized as sufficient warrant for approval, that is, legal cause, and not merely causes which appointing power in the exercise of discretion may deem sufficient. The cause must relate to and affect the administration of the office, and must be restricted to something substantial in nature. Revocation or Recall of Appointment General Rule: Appointment once made irrevocable and not subject to reconsideration.

Grounds when CSC has power to recall, on its own initiative, an appointment initially approved: (1) Non-compliance with the procedures/criteria provided in the agency’s merit promotional plan (2) Failure to pass through the agency’s selection/promotion board (3) Violation of the existing collective agreement between management and employees relative to promotion (4) Violation of other existing civil service law, rules and regulations

Personnel action Any action denoting movement or progress of personnel in the civil service. (EO 292, Rule V, § 1, cited in City Mayor Debulgado v. CSC, G.R. 111471, 1994). Includes the following: (PART R2D2) (1) Appointment through certification (2) Promotion (3) Transfer (4) Reinstatement (5) Reemployment (6) Detail (7) Reassignment (8) Demotion It is the CSC which is empowered to look into the validity of creation of positions and appointments of personnel appointed by the Mayor whose appointments were confirmed by the CSC. There being a valid appointment confirmed by CSC and the concerned personnel having rendered services, payment of their salaries is proper and legal. (Tolentino v. Loyola, G.R. 153809, 2011) Valid personnel actions (1) Extending temporary appointment, however, this must not amount to removal. (2) Transfer or re-assignment but this must not involve a reduction in rank, status, and salary, without break in service. (3) Detail must be made in the interest of public service, absent showing of manifest abuse or improper motive or purpose. Personnel actions amounting to removal (1) Shortening term is removal (2) Control does not extend to removal (3) Demotion (4) Denial of optional retirement and refusal to reinstate Page 286 of 479

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While a temporary transfer or assignment of personnel is permissible even without the employee’s prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position, or designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service. (Garcia v. Lejano, G.R. L-12220, 1960). Waiver of security of tenure Acceptance of temporary appointment or assignment, without reservations is a waiver of security of tenure.

M. ACCOUNTABILITY OF PUBLIC OFFICERS 1. TYPES OF ACCOUNTABILITY a. Administrative Liability Grounds for Discipline: (DOOD IPOD MINI MUG) (1) Discourtesy in the course of official duties; (2) Refusal to perform Official duty or render overtime service; (3) Falsification of Official documents; (4) Habitual Drunkenness; (5) Inefficiency and incompetence in the performance of official duties; (6) Willful refusal to Pay just debts or willful failure to pay taxes due to the government; (7) Oppression; (8) Dishonesty; (9) Misconduct; (10) Disgraceful and Immoral conduct; (11) Neglect of duty; (12) Physical or mental Incapacity due to immoral or vicious habits; (13) Conviction of a crime involving Moral turpitude; (14) Being notoriously Undesirable; (15) Gambling Negligence v. Dishonesty NEGLIGENCE

DISHONESTY

In the case of public officials, there is negligence when there is a breach of duty or failure to perform the obligation, and there is

Dishonesty begins when an individual intentionally makes a false statement in any material fact, or practicing or attempting to practice any deception or

gross negligence when a breach of duty is flagrant and palpable.

fraud in order to secure his examination, registration, appointment or promotion.

Failing to comply with his duty to provide a detailed list of his assets and business interests in his SALN and for relying on the family bookkeeper/ accountant to fill out his SALN and in signing the same without checking or verifying the entries is negligence. (Presidential Anti-Graft Commission and the Office of the President v. Pleyto, G.R. 176058, 2011)

It should be emphasized only when the accumulated wealth becomes manifestly disproportionate to the employee’s income or other sources of income and his failure to properly account or explain his other sources of income does he become susceptible to dishonesty. (Ombudsman v. Nieto, G.R. 185685, 2011)

Good Faith Good faith is ordinarily used to describe that state of mind denoting honesty of intention and freedom from knowledge of circ*mstances which ought to put the holder upon inquiry. In other words, good faith is actually a question of intention. Although this is something internal, one can ascertain a person’s intention not from his own protestation of good faith, which is self-serving, but from evidence of his conduct and outward acts. (Dumduma v. CSC, G.R. 182606, 2011) Every public official who signs or initials documents in the course of standard operating procedures does not automatically become a conspirator in a crime that transpired at some stage in which the official had no participation. (Peralta v. Desierto, G.R. 153152, 2005) Even if the dishonest act was committed by the employee prior to entering government service, such act is still a ground for disciplinary action. (Orbase v. Ombudsman, G.R. 175115, 2009) Misconduct in office refers to "any unlawful behavior by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act." In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule must be manifest. Corruption as an Page 287 of 479

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element of grave misconduct consists in the act of an official or employee who unlawfully or wrongfully uses his station or character to procure some benefit for himself or for another, contrary to the rights of others. (Gabon v. Merka, A.M. P-11-3000, 2011)

assistance, maltreatment of prisoners, anticipation, prolongation and abandonment of the duties and powers of public office, usurpation of powers and unlawful appointments

Grave misconduct Consists in a government official’s deliberate violation of a rule of law or standard of behavior. It is regarded as grave when the elements of corruption, clear intent to violate the law, or flagrant disregard of established rules are present. In particular, corruption as an element of grave misconduct consists in the official’s unlawful and wrongful use of his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others. Rigging by a public official at a bidding in the organization where he belongs is a specie of corruption. (NPC v. CSC, G.R. 152093, 2012)

(2) Anti-Graft and Corrupt Practices Act (3) Code of Conduct and Ethical Standards (a) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him.

Simple neglect of duty Defined as the failure of an employee to give proper attention to a required task or to discharge a duty due to carelessness or indifference. On the other hand, gross neglect of duty is characterized by want of even the slightest care, or by conscious indifference to the consequences, and in cases involving public officials, by flagrant and palpable breach of duty. It is the omission of that care that even inattentive and thoughtless men never fail to take on their own property. (Land Bank of the Philippines vs. San Juan Jr., G.R. 192890, 2013) Ultra vires acts Acts which are clearly beyond the scope of one's authority. They are null and void and cannot be given any effect. The doctrine of estoppel cannot operate to give effect to an act which is otherwise null and void or ultra vires. (Acebedo Optical Company v. CA, G.R. No. 100152, 2000)

b. Criminal Liability Crimes peculiar to certain public officers Crimes committed by public officers are classified under: (1) Revised Penal Code (a) Malfeasance and misfeasance in office (b) Frauds and illegal exactions and transactions (c) Malversation of public (d) Infidelity of public officers (e) Other offenses and irregularities committed by public officers which include disobedience, refusal of

(4) Forfeiture of Unexplained Wealth Act (5) Civil Service Decree (a) For any violation of the provisions on: i. Warrant and checks receivables for taxes or other indebtedness of the government ii. Issuance of official receipts iii. Limitation on cash advances iv. Liability for acts done by direction of a superior officer v. Prohibition against pecuniary interest (6) (7) (8) (9)

Government Auditing Code Local Government Code National Internal Revenue Code Omnibus Election Code

Public officers may not be held criminally liable for failure to perform a duty commanded by law when, for causes beyond their control, performance is impossible. However, the absence of corrupt intent is not a defense to an action against an officer for a statutory penalty for misconduct such as taking illegal fees, or for willful failure or refusal to perform a mandatory ministerial duty. The mere expiration of his term of office will not prevent the prosecution and punishment of a public officer for a misdemeanor committed in office; nor the re-election of a public official extinguishes the criminal liability incurred by him during his previous term of office.

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2. DISCIPLINE a. Grounds General Rule: A public officer is not liable for injuries sustained by another due to official acts done within the scope of his authority. Exceptions: (BM-NID) (1) Bad faith; (2) Malice; (3) Negligence; (4) Death or Injury to persons or damage to property Administrative liability is separate from and independent of criminal liability It is a fundamental principle in the law on public officers that administrative liability is separate from and independent of criminal liability. A simple act or omission can give rise to criminal, civil or administrative liability, each independently of the others. This is known as the threefold liability rule. Thus, absolution from a criminal charge is not a bar to an administrative prosecution, and vice versa. The dismissal of the administrative cases against the petitioners will not necessarily result in the dismissal of the criminal complaints filed against them. (Regidor, Jr. v. People, G.R. 166086-92, 2009; Office of the President v. Cataquiz, G.R. 183445, 2011) Proof of damage or actual injury Proof of damage or actual injury is not required for administrative liability to attach to a public officer. It is enough that the act was contrary to the established norms of conduct for government service. However, an employee of GSIS who altered IP addresses without authority, not in the performance of his duties, will not be guilty of grave misconduct but conduct prejudicial to the best interest of service. To constitute misconduct, the act or acts must have a direct relation to and be connected with the performance of official duties. (GSIS v. Mayordomo, G.R. No. 191218, 2011) Presumption of good faith in the discharge of official duties Every public official is entitled to the presumption of good faith in the discharge of official duties. Although a public officer is the final approving authority and the employees who processed the transaction were directly under his supervision, personal liability does not automatically attach to him but only upon those directly responsible for the unlawful expenditures. (Dimapilis-Baldoz v. Commission on Audit, G.R. 199114, 2013)

Concept of public office is a public trust The concept of public office is a public trust and the corollary requirement of accountability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective local official's administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office, or even another elective post. Election is not a mode of condoning an administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for a different term is fully absolved of any administrative liability arising from an offense done during a prior term. (CarpioMorales v. CA and Binay, G.R. 217126-27, 2015) Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. The basic idea of government in the Philippines is that of a representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men had a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of law and holds the office as a trust for the people whom he represents. (Bernas, 1987 Philippine Constitution: A Commentary, 924, 2009, citing Cornejo v. Gabriel, 41 Phil. 188, 1920) Public Officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law (PHIL. CONST., art. XI, § 18.)

b. Jurisdiction Jurisdiction in Disciplinary Cases (1) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decision shall be final in case the penalty imposed is suspension for not more than 30 days or fine in an amount not exceeding 30 days’ salary. (2) In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and Page 289 of 479

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(3)

(4)

(5)

(6)

(7)

(8)

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pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than 30 days, or fine in an amount exceeding 30 days’ salary, demotion in rank or salary, transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department, agency, official, or group of officials to conduct the investigation. Disciplinary cases and cases involving “personnel actions” affecting employees in the civil service are within the exclusive jurisdiction of the Civil Service Commission, which is the sole arbiter of controversies relating to the civil service. Executive Order No. 151, or the Presidential Commission Against Graft and Corruption, exercises jurisdiction to investigate all administrative complaints involving graft and corruption filed in any form or manner against presidential appointees in the executive department of the government, including those in GOCCs. Such jurisdiction extends to nonpresidential appointees who may have acted in conspiracy or who may have been involved with a presidential appointee. The Sandiganbayan has exclusive original jurisdiction over presidents, directors or trustees, or managers of GOCCs, without any distinction with respect to the manner of their creation, whenever charges of graft and corruption are involved. RA No. 4670, otherwise known as the Magna Carta for Public School Teachers, covers and governs administrative proceedings involving public school teachers.

c. Dismissal, Preventive Suspension, Reinstatement and Back Salaries Dismissal Section 11(b) of Republic Act No. 6713 explicitly states that dismissal from the service may be warranted through an administrative proceeding, even if the erring officer is not subjected to criminal prosecution. This is in keeping with the three (3)-fold liability rule in the law on public officers, "which states that the wrongful acts or omissions of a public officer may give rise to civil, criminal and BACK TO TOC

administrative liability. An action for each can proceed independently of the others (Domingo v. Rayala, G.R. No. 155831, February 18, 2008 citing OCA v Enriquez, A.M. No. P-89-290, January, 29, 1993). Preventive Suspension FOR ALL APPOINTIVE AND ELECTIVE OFFICIALS AND EMPLOYEES EXCEPT EXCLUDED OFFICIALS (i.e. IMPEACHABLE OFFICERS) The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Sec. 24 RA 6770 The Ombudsman Act of 1989) FOR APPOINTIVE NATIONAL OFFICIALS AND EMPLOYEES An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered shall be considered having been under preventive suspension during the pendency of the appeal in the event he wins an appeal (EO 292, Book V, Title IA, § 47(4)). The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending as investigation, if the charge against such officers or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service (EO 292, Book V, Title IA, § 51). When the administrative case against the officers or employee under preventive suspension is not finally decided by the disciplining authority within the Page 290 of 479

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period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondents, the period of delay shall not be counted in computing the period of suspension herein provided (EO 292, Book V, Title IA, § 52). FOR ELECTIVE LOCAL OFFICIALS (a) Preventive suspension may be imposed: (1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; (2) By the governor, if the respondent is an elective official of a component city or municipality; or (3) By the mayor, if the respondent is an elective official of the barangay. (b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. (c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. (d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority (RA 7160, The Local Government Code, § 63).

during such suspension; but upon subsequent exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments accruing during such suspension (RA 7160, The Local Government Code, § 64). An appeal shall not prevent a decision from becoming final or executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal (RA 7160, The Local Government Code, § 68). FOR LOCAL APPOINTIVE OFFICIALS AND EMPLOYEES (a) The local chief executives may preventively suspend for a period not exceeding sixty (60) days and subordinate official or employee under his authority pending investigation if the charge against such official or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service. (b) Upon expiration of the preventive suspension, the suspended official or employee shall be automatically reinstated in office without prejudice to the continuation of the administrative proceedings against him until its termination. If the delay in the proceedings of the case is due to the fault, neglect or request of the respondent, the time of the delay shall not be counted in computing the period of suspension herein provided (RA 7160, The Local Government Code, § 85). Reinstatement When a government official or employee has been illegally dismissed, and his reinstatement has later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges to accrue to him by virtue of the office that he held (Cuevas v. Bacal, G.R. No. 139382. December 6, 2000) The general rule is that a person suspended or dismissed from the public office through no fault of his own is entitled to be reinstated to his former position or at least to a comparable position, if feasible. (De Leon, The Law on Public Officers and Election Law, 237, 2011)

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Back Salaries The "no work, no pay" principle does not apply where it has been sufficiently shown that a public official was wrongfully prevented from entering the office and carrying out his duties. He may recover his salary for the duration that he was thus prevented from assuming his post, and it is immaterial that his appointment is temporary because what is material is not the nature of the appointment but the act of wrongful deprivation of office. (De Leon, The Law on Public Officers and Election Law, 234, 2011 citing Celerian v. Tantuico Jr., G.R. No. L-50147, 1990) If the illegal dismissal is found to have been made in bad faith by the superior officers, then they will be held personally accountable for back salaries of the illegally dismissed employee. (De Leon, The Law on Public Officers and Election Law, 234, 2011 citing David v. Gania, G.R. No. 156039, 1990)

d. Condonation Doctrine The condonation doctrine is the doctrine that provides that a reelected official should no longer be made accountable for an administrative offense committed during his previous term. In Carpio-Morales, the Court abandoned the "condonation doctrine," explaining that "election is not a mode of condoning an administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for a different term is fully absolved of any administrative liability arising from an offense done during a prior term." The abandonment should be prospectively applied. (Dimapilis v. Commission on Elections, G.R. No. 227158, April 18, 2017) The ruling promulgated in Carpio-Morales v. Court of Appeals on the abandonment of the doctrine of condonation had, indeed, become final only on April 12, 2016, and thus the abandonment should be reckoned from April 12, 2016. (Crebello v. Ombudsman, GR No. 232325, 2019) NOTE: Thus, OMB decisions prior to April 12, 2016 absolving respondent public officials from administrative charges by reason of the application of the doctrine of condonation would still be valid.

3. IMPEACHMENT v. QUO WARRANTO Impeachment Pertains to the power of Congress to remove a public official for serious crimes or misconduct as provided in the Constitution. It is a mechanism designed to check abuse of power. (Chief Justice Renato C. Corona v. Senate of the Philippines sitting as an Impeachment Court, G.R. No. 200242, 2012) Who may be impeached: (VP-SOC) (1) President (2) Vice President (3) Supreme Court Justices (4) Constitutional Commission members (5) Ombudsman (Phil. Const., art. XI, sec. 2) Grounds: (GOT BBC) (1) Graft and corruption (2) Other high crimes (3) Treason (4) Betrayal of public trust (5) Bribery (6) Culpable violation of the Constitution (Phil. Const., art. XI, sec. 2) It is an exclusive list. Congress cannot add to the list of impeachable offenses. These officers cannot be charged in court with offenses that have removal from office as penalty. But after an official has been impeached, he can be charged with the appropriate offense. Resignation by an impeachable official does not place him beyond the reach of impeachment proceedings; he can still be impeached. Disbarment. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumvent and hence to ran afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. (Cuenco v. Fernan, GR No. 3135, 1988) Other public officers and employees They may be removed from office as provided by law but, not by impeachment. (Phil. Const., art. XI, sec. 2) Page 292 of 479

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Who may initiate impeachment case The House of Representatives has exclusive power to initiate all cases of impeachment. (Phil. Const., art. XI, sec. 3, par. (1)) Procedure: (1) Filing of a verified complaint for impeachment, which may be filed by: (a) Any member of the House of Representatives or • If the verified complaint or resolution is filed by at least 1/3 of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall proceed (b) Any citizen upon a resolution or endorsem*nt by any Member of the House (2) Inclusion of the complaint in the Order of Business within 10 session days (3) Referral to the proper Committee (i.e. Committee on Justice) within 3 session days (4) Submission by the Committee of its report with the corresponding resolution, after hearing and by a majority vote, to the House within 60 days from such referral (5) Calendaring of the resolution for consideration by the House within 10 session days from receipt thereof (6) At least 1/3 vote of all the members of the House shall be necessary to: (a) Affirm the resolution with the Articles of Impeachment of the Committee or (b) Override its contrary resolution (Phil. Const., art. XI, sec. 3, par. (2) to (4)) Roles of the 3 branches of Government in impeachment: (1) Senate has sole power to try and decide cases of impeachment (Phil. Const., art. XI, sec. 3, par. (6)); (2) If the President is on trial, the Chief Justice presides but does not vote (Id.); (3) The Supreme Court can determine if Congress committed grave abuse of discretion amounting to lack or excess of jurisdiction (ex. recognizing two impeachment complaints). For impeachment, judgment of conviction requires the concurrence of 2/3 of all the Members of the Senate. (Phil. Const., art. XI, sec. 3, par. (6))

Limitation Only one impeachment proceeding should be initiated against an impeachable officer within a period of one year. (Gutierrez v. House Committee on Justice, G.R. 193459, 2011) The SC found it well-within its power to determine whether Congress committed a violation of the Constitution or gravely abused its discretion in the exercise of its functions and prerogatives that could translate as lack or excess of jurisdiction in taking cognizance of two impeachment complaints that are inquisitorial in function, akin to a preliminary investigation. (Gutierrez v. House Committee on Justice, G.R. 193459, 2011). 1-year period; When reckoned The 1-year period shall be counted from the time of the filing of the first impeachment complaint. Impeachment proceedings pertain to the proceedings in the House of Representative which commences from the initiation of the complaint, to the referral to proper committees, to submission of the report to the House, subsequent deliberation, and ends with the transmittal of the Article of Impeachment to the Senate. An impeachment case pertains to a trial in the Senate which commences at the time the Articles of Impeachment are transmitted to the Upper House. (Gutierrez v. House Committee on Justice, G.R. 193459, 2011). Effects of impeachment: (LDR) (1) Removal from office of the official concerned (2) Disqualification to hold any public office (3) Public officer still Liable to prosecution, trial, and punishment if the impeachable offense committed also constitutes a felony or crime. (Phil. Const., art. XI, sec. 3, par. (7)) Sufficiency of form and substance of the complaint The determination of sufficiency of form and substance of an impeachment complaint is an exponent of the express constitutional grant of rulemaking powers of the House of Representatives. In the discharge of that power and in the exercise of its discretion, the House has formulated determinable standards as to the form and substance of an impeachment complaint. Furthermore, the

Impeachment Rules are clear in echoing the constitutional requirements and providing that there must be a "verified complaint or resolution,” and that the substance requirement is met if there is "a recital of facts constituting the offense Page 293 of 479

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charged and determinative of the jurisdiction of the committee.” The Supreme Court cannot look into the narration of facts constitutive of the offenses, because such would require the Court to make a determination of what constitutes an impeachable offense. Such a determination is considered to be purely a political question and thus left to the sound determination of the legislature. (Gutierrez v. House Committee on Justice, G.R. 193459, 2011). Impeachment v. Quo Warranto While both impeachment and quo warranto seek the ultimate removal of an incumbent government officer, the two differ as to nature, jurisdiction, grounds, the applicable procedural rules, and limitations. Impeachment is political; quo warranto is judicial. In impeachment, the Congress is the prosecutor, the trier, and the judge, whereas quo warranto petitions are instituted either by the Solicitor General in behalf of the Republic of the Philippines or by an individual claiming the public office in issue, both of which petitions are cognizable only by the Supreme Court. Impeachment proceedings seek to confirm and vindicate the breach of the trust reposed by the Filipino people upon the impeachable official, but quo warranto determines the legal right, title, eligibility, or qualifications of the incumbent to the contested public office. The 1987 Constitution, as supplemented by the internal rules of procedure of the Congress, directs the course of impeachment proceedings. Quo warranto cases, on the other hand, are dictated by the Rules of Court. The end result of an impeachment proceeding is the removal of the public officer, and his or her perpetual political disqualification from holding public office. On the other hand, when a quo warranto petition is granted, ouster from office is likewise meted, but the Court can likewise impose upon the public officer additional penalties such as reimbursem*nt of costs pertaining to the rightful holder of the public office and such further judgment determining the respective rights in and to the public office, position, or franchise of all the parties to the action as justice requires. [Re: Letter of Mrs. Ma. Cristina Roco Corona, A.M.No. 20-7-10-SC, January 12, 2011]

4. THE OMBUDSMAN AND THE OFFICE OF THE SPECIAL PROSECUTOR a. Functions The Ombudsman The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. (Sec. 13, R.A. 6770) Powers, Functions and Duties of the Office of the Ombudsman (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursem*nt or use of public funds or properties and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. Page 294 of 479

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(6) Publicize matters covered by its investigation when circ*mstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. (Sec. 13, Art. XI, 1987 Constitution)

b. Judicial Review in Administrative Proceedings c. Judicial Review in Penal Proceedings Judicial Review in Administrative Proceedings v. Judicial Review in Penal Proceedings ADMIN.

PENAL

Appeals from resolutions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals via Petition for Review under Rule 43 of the Rules of Court. (Fabian v. Desierto, G.R. 129742, 1998)

Supreme Court is not precluded from reviewing the Ombudsman’s action when there is an abuse of discretion, in which case Rule 65 of the Rules of Court. (GarciaRueda v. Pascasio, G.R. 118141, 1997)

Non-Administrative v. Administrative FROM Ombudsman administrative cases)

APPEAL TO (non-

Supreme Court via Rule 65

Ombudsman (administrative cases ONLY)

Court of Appeals via Rule 43

The Office of the Special Prosecutor The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution. (PHIL. CONST., art. XI, § 7.)

Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the Tanodbayan Ombudsman) and can investigate and prosecute cases only upon the latter's authority or orders. The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to do so by the Ombudsman. Even his original power to issue subpoena, which he still claims under Section 10(d) of PD 1630, is now deemed transferred to the Ombudsman, who may, however, retain it in the Spedal Prosecutor in connection with the cases he is ordered to investigate. (Zaldivar v. Sandiganbayan, G.R. No. 79690-707, April 27, 1988). Under PD 1487, as amended by PD 1607, Tanodbayan was both prosecutor and Ombudsman. Harmonisation of the laws left the Special Prosecutor to continue to exercise powers of the former Tanodbayan except those specifically passed on to the Ombudsman. Since the power to investigate has been vested to the Ombudsman, the Special Prosecutor can only investigate and prosecute if authorised by the Ombudsman.

5. THE SANDIGANBAYAN Jurisdiction, in general (1) Violations of Anti-graft and Corrupt Practices Act (R.A. No. 3019); (2) Republic Act No. 1379 (3) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (4) One or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (a) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (i) Provincial governors, vice-governors, members of the Sangguniang Panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads; Page 295 of 479

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City mayors, vicemayors, members of the Sangguniang Panlungsod, city treasurers, assessors, engineers and other city department heads; (iii) Officials of the diplomatic service occupying the position of consul and higher; (iv) Philippine army and air force colonels, naval captains, and all officers of higher rank; (v) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (vi) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (vii) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (b) Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989; (c) Members of the judiciary without prejudice to the provisions of the Constitution; (d) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; (e) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. (5) Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned above in relation to their office.

(6) Civil and criminal cases filed pursuant to and in connection with EO Nos. 1, 2, 14 and 14-A, issued in 1986 [Cases in connection with the ill-gotten wealth of Marcos and his family members and cronies that are filed and prosecuted by the PCGG. NOTE: The INFORMATION for the aforementioned offenses committed by the covered public officers, in order to be under the EXCLUSIVE ORIGINAL JURISDICTION of the Sandiganbayan, must allege damage to the government or bribery arising from the same or closely related transactions or acts in an amount exceeding One million pesos (P1,000,000.00). [Sec. 4, RA 8249 as amended by RA 10660] Otherwise, the Regional Trial Court shall have EXCLUSIVE ORIGINAL JURISDICTION where the information: (a) does not allege any damage to the government or any bribery; or (b) alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding One million pesos (P1,000,000.00). [Sec. 4, RA 8249 as amended by RA 10660 The modified exclusive original jurisdiction of the Sandiganbayan in relation to the expanded exclusive original jurisdiction of the RTC shall be effective 05 May 2015. All offenses committed by covered public officers prior to 05 May 2015 shall still be under the Sandiganbayan. [People v. Bacaltos, GR No. 248701, 2020; Ampongan v. Sandiganbayan, GR No. 234670, 2019] THUS: INFORMATION

JURISDICTION

Damage + more than PhP1M

Sandiganbayan

Bribery + more than PhP1M

Sandiganbayan

Damage + PhP1M and below

RTC

Bribery + more than PhP1M

RTC

No Damage or No Bribery

RTC

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EFFECTIVITY of RA 10660: 05 May 2015 Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14- A, issued in 1986. [Cases in connection with the ill-gotten wealth of Marcos and his family members and cronies that are filed and prosecuted by the PCGG]. [Sec. 4, RA 8249 as amended by RA 10660] The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. [Sec. 4, RA 8249 as amended by RA 10660] REGIONAL TRIAL COURT: EXCLUSIVE ORIGINAL JURISDICTION (1) The Regional Trial Court shall have exclusive original jurisdiction where the information: (a) does not allege any damage to the government or any bribery; or (b) alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding One million pesos (P1,000,000.00). [Sec. 4, RA 8249 as amended by RA 10660] (2) Subject to the rules promulgated by the Supreme Court, the cases falling under the jurisdiction of the Regional Trial Court under this section (Sec. 4 as amended) shall be tried in a judicial region other than where the official holds office. [Sec. 4, RA 8249 as amended by RA 10660] Failure to comply with this jurisdictional requirement as conferred by law shall cause the dismissal of the criminal case, with all the actions and proceedings undertaken declared as null and void, for lack of jurisdiction even if the Supreme Court has not yet promulgated the rules. [Non v. Sandiganbayan, GR No. 251177, 2020] (3) In cases where none of the accused are occupying positions corresponding to Salary Grade ’27’ or higher, as prescribed in the said Republic Act No. 6758 (now RA 11466), or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the

proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. [Sec. 4, RA 8249 as amended by RA 10660] Offenses committed in relation to public office (1) Accused is any one of the Public Officers and Employees in Subsection (a) of Section 4 of RA 8249 or with Salary Grade 27 and above; (2) Accused commits any other offense/felony, than those specified in Subsection (a), whether simple or complexed with other crimes; (3) The offender commits such other offense/felony in relation to his office. “In relation to his office” [WIC] (1) It cannot exist Without the office, or (2) If the office is a Constituent element of the crime as defined in the statute, or (3) Must be Intimately connected with the office of the offender APPELLATE JURISDICTION Cases decided by the RTC filed against lower level public officials or those classified as Grade 26 and lower, involving: (1) Violations of RA 3019; (2) RA 1379; (3) Direct/indirect bribery and Corruption of Public officials It is the Sandiganbayan which has jurisdiction over appeals from criminal cases where the accused is a government employee. Pursuant to RA 8249, the Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. (Filomena v. People, G.R. 188630, 2011) While it is the Ombudsman who has the full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case so much so that the Information may not be dismissed without the approval of said court. In this case, the Sandiganbayan ordered the Special Prosecutor to conduct a reinvestigation and subsequently granted his motion to withdraw the informations, after finding Page 297 of 479

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no probable cause against the latter on reinvestigation. The Sandiganbayan thus gave its approval to the withdrawal of the informations and ordered the dismissal of the cases. Since no appeal was taken by the Special Prosecutor from the order of dismissal within the reglementary period, the same had become final and executory. (City Government of Tuguegarao v. Ting, G.R. 19243536, 2011) In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its Special Prosecutor, shall represent the People, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A. A private complainant in a criminal case before the Sandiganbayan is allowed to appeal only the civil aspect of the criminal case after its dismissal by said court. (City Government of Tuguegarao v. Ting, G.R. 192435-36, Sept.14, 2011) The special civil action of certiorari is not the proper remedy to challenge a judgment conviction rendered by the Sandiganbayan. Petitioner should have filed a petition for review on certiorari under Rule 45. Pursuant to Section 7 of Presidential Decree No. 1606, as amended by Republic Act No. 8249, decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court. (Icdang v. Sandiganbayan, G.R. 185960, 2012) The Sandiganbayan has the authority to order the preventive suspension of an incumbent Senator charged with violation of the provisions of RA 3019 or the Anti-Graft and Corrupt Practices Act. (Santiago vs. Sandiganbayan, G.R. 128055, 2001)

Term limits for National and Local Elective Officials NO. OF YEARS PER TERM

TERM LIMIT

President

6 years

1 term

Vice President

6 years

2 terms

Senator

6 years

2 terms

Member of the House of Representatives

3 years

3 terms

Governor

3 years

3 terms

POSITION

Vice Governor Member of the Sangguniang Panlalawigan Mayor Vice Mayor Member of the Sangguniang Panlungsod/ Bayan Punong Barangay Members of the Sangguniang Barangay Sangguniang Kabataan

N. TERM LIMITS Term v. Tenure Term is the period during which an official is entitled to hold office. Tenure is the period during which the official actually holds office. Tenure can be shortened, e.g., by death or removal, but term is changed only by amendment. (Dimaporo v. Mitra, Jr., G.R. No. 96859, 1991)

Term limit for the President and Vice-President The President is given a fixed term of six (6) years. He or she is not eligible for reelection. (Phil. Const., art. VII, sec. 4, para. 1) However, a person who has succeeded as President for a period not exceeding four (4) years shall be qualified for election to the same office. (Id.) On the other hand, the Vice-President shall have a term of six (6) years, but shall not serve for more than two successive terms. (Id., para. 2)

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Term limit for Members of Congress No senator shall serve for more than two consecutive terms. (Phil. Const., art. VI, sec. 4, para. 2) This limitation means that a senator who has served two consecutive terms could run again three years after the expiration of his second term. (Bernas, S.J., 2009 ed., p. 699) For example, a senator who has fully served two terms ending in 2019, may run again at the 2022 elections. On the other hand, Members of the House of Representatives are allowed to serve for a term of three years, but shall not serve for more than three consecutive terms. (Phil. Const., art. VI, sec. 7) Voluntary renunciation for any length of time shall not be considered as an interruption in the continuity of his/her service for the full term for which he was elected. (Phil. Const., art. VI, sec. & 7) If one is elected to serve the unexpired term of another, that unexpired term, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed. (Bernas, S.J., 2009 ed., p. 720) CIVIL SERVICE COMMISSION. The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven (7) years without reappointment. Of those first appointed, the Chairman shall hold office for seven (7) years, a Commissioner for five (5) years, and another Commissioner for three (3) years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. [Sec. 1(2), Art. IX-B, 1987 Constitution] COMMISSION ON ELECTIONS. The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven (7) years without reappointment. Of those first appointed, three (3) Members shall hold office for seven (7) years, two (2) Members for five (5) years, and the last Members for three (3) years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. [Sec. 1(2), Art. IX-C, 1987 Constitution] COMMISSION ON AUDIT. The Chairman and the Commissioners shall be appointed by the President

with the consent of the Commission on Appointments for a term of seven (7) years without reappointment. Of those first appointed, the Chairman shall hold office for seven (7) years, one (1) Commissioner for five (5) years, and the other Commissioner for three (3) years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. [Sec. 1(2), Art. IX-D, 1987 Constitution] OMBUDSMAN. The Ombudsman and his Deputies shall serve for a term of seven (7) years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office. [Sec. 11, Art. XI, 1987 Constitution] In case of death, resignation, removal, or permanent disability of the Ombudsman, the new Ombudsman shall be appointed for a full term. Undoubtedly, Sec. 8(3), R.A. No. 6770 is consistent with Sec. 11, Art. XI of the 1987 Constitution in so far as it provides that the Ombudsman and the deputies shall serve for a term of seven years. [Ifurung v. Carpio-Morales, GR No. 232131, 2018] Term limit for local elective officials; When considered fully served The term of office of elective local officials, except barangay officials, shall be three (3) years and no such official shall serve for more than three (3) consecutive terms. (Phil. Const., art. X, sec. 8, para. 1) Furthermore, the voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (Id., para. 2) The 2nd paragraph of Article X, Section 8 of the Constitution "simply explains when an elective local official may be deemed to have served his full term of office. The term served must therefore be one for which the official concerned was elected. The purpose of this provision is to prevent a circumvention of the limitation on the number of terms an elective local official may serve. Conversely, if he is not serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such official cannot be considered to have fully served the term notwithstanding his voluntary renunciation of office prior to its expiration." (Borja, Jr. v. Commission on Elections, G.R. No. 133495, 1998) Page 299 of 479

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"The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply." (Id.)

NOT AN INTERRUPTION TO THE FULL TERM (3-TERM LIMIT APPLIES – HENCE, BARRED) CONSTITUTIONAL RULE: The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. [Sec. 8, Art. X, 1987 Constitution; also Sec. 43(b), RA 7160] (1) Running, winning and serving a different elective position is voluntary renunciation. Punong barangay, while serving 3rd term, ran and won as municipal councilor and served the full term. Considered as voluntary renunciation. (Bolos v. COMELEC, G.R. No. 184082, 2009) (2) Circumvention. After serving 3 terms as Punong Barangay, got elected as barangay kagawad with sister elected as Punong Barangay, who resigned the following day after oath of office to allow succession. Considered as a conspiracy and hence, a circumvention of the 3-term limit. (Aguilar v. Benlot, G.R. No. 232806, 2019) (3) Conversion. Conversion of a municipality to a city with no break in the service as a local chief executive. (Latasa v. COMELEC, GR No. 154829, 2003; Halili v. COMELEC, G.R. No. 231643, 2019) (4) Reapportionment of District. Served for 2 terms (2004, 2007) as Provincial Board Member (BM) in the Cam. Sur 2nd dist. Cam. Sur was reapportioned by RA9716. In 2010 and 2013 he ran and won as BM in the 3rd dist (which is essentially the same as the old 2nd dist). (Naval v. COMELEC, G.R. No. 207851, 2014) (5) Merger. Municipalities were merged and converted into a city, but the Punong Barangay from the former municipality is the same as that in the city as the new political unit with the same territory and inhabitants (hence, same group of voters). (Laceda v. Limena, G.R. No. 182867, 2008)

(6) Preventive Suspension. Preventive suspension is not an interruption. Just a temporary inability; not unseated and continued to hold office; just temporarily barred to exercise functions. (Aldovino v. COMELEC, G.R. No. 184836, 2009) (7) Election protest but served 3 Full Terms. Election protest, but able to serve 3 full terms, including the 2nd term (fully served) where the proclamation was voided. (Ong v. COMELEC, G.R. N0. 163295, 2006; Rivera v. COMELEC, G.R. No. 167591, 2007) AN INTERRUPTION TO THE FULL TERM (3TERM LIMIT DOES NOT APPLY – HENCE, NOT BARRED) (1) Succession. Assumption by succession is by operation of law. To count as a term, one must have been elected and fully served. Law allows the severance to effectuate succession. (Borja v. COMELEC, G.R. No. 133495, 1998; Montebon v. COMELEC, G.R. No. 180444, 2008) (2) Recall Election. Previously served for 3 full terms as mayor, then participated in a recall election; not barred. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. (Socrates v. COMELEC, GR No. 154512, 2002) Previously served for 2 full terms as mayor (1992-1998), ran for a 3rd term (1998-2001) but lost, then subsequently participated in a recall election (2000), which he won served the unexpired term; not barred to run again for another term – not elected for 3 consecutive terms, continuity as mayor was disrupted with the defeat, and was a private citizen for 2 years prior to the recall election. (Adormeo v. COMELEC, G.R. No. 147927, 2002) (3) Dismissal as Penalty. Dismissals (as penalties) were involuntary interruptions; not considered to have fully served a 3rd successive term of office. (Tallado v. COMELEC, G.R. No. 246679, 2019)

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(4) Election Protest. (a) Unseated during 3rd term as mayor because of an election protest; not barred as not deemed to have been elected for that term – merely assumed office as a presumptive winner. (Lonzanida v. COMELEC, G.R. No. 135150, 1999) (b) Served as mayor in 2001, 2004, and 2007, but the 2004 (2nd term) was by virtue of an election protest and served only the remainder of the 2nd term; not barred to run in 2010. (Abundo v. COMELEC, G.R. No. 201716, 2013) (c) Unseated for running and winning a 4th term (NOTE: 4th term was invalidated by the SC in Rivera v. COMELEC), then relinquished office; not barred to run in the subsequent election. (Dizon v. COMELEC, GR No. 182088, 2009) ————- end of topic ————

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II. ADMINISTRATIVE LAW TOPIC OUTLINE UNDER THE SYLLABUS

A. GENERAL PRINCIPLES B. ADMINISTRATIVE AGENCIES C. POWERS OF ADMINISTRATIVE AGENCIES 1. Quasi-Legislative (Rule-Making) Power a. Kinds Of Administrative Rules And Regulations b. Requisites For Validity 2. Quasi-Judicial (Adjudicatory) Power a. Administrative Due Process b. Administrative Appeal And Review c. Administrative Res Judicata 3. Fact-Finding, Investigative, Licensing, And Rate-Fixing Law Powers D. JUDICIAL RECOURSE AND REVIEW 1. Doctrine of Primary Administrative Jurisdiction 2. Doctrine of Exhaustion of Administrative Remedies 3. Doctrine of Finality of Administrative Action

A. GENERAL PRINCIPLES Administrative Law 1) Dean Roscoe Pound: It is the branch of modern law under which the executive department of the government, acting in a quasi-legislative or quasijudicial capacity, interferes with the conduct of the individual for the purposes of promoting the wellbeing of the community, as under laws regulating public interest, professions, trades and callings, rates and prices, laws for the protection of public health and safety, and the promotion of public convenience. (Carlo Cruz, Philippine Administrative Law 1, 2016) 2) Professor Goodnow: That part of public law which fixes the organization of the government and determines the competence of the authorities who execute the law and indicates to the individual remedies for the violation of rights. (Carlo Cruz, Philippine Administrative Law 2, 2016) 3) Justice Frankfurter: That branch of the law which deals with the field of legal control exercised by law-administering agencies other than courts, and the field of control exercised by courts over such agencies. (Carlo Cruz, Philippine Administrative Law 2, 2016) Administration: Internal or External. INTERNAL ADMINISTRATION

EXTERNAL ADMINISTRATION

Covers those rules defining the relations of public functionaries inter se and embraces the whole range of the law of public officers, i.e. qualifications, powers, rights, duties, and liabilities.

Defines the relations of the public office with the public in general.

(Carlo Cruz, Philippine Administrative Law 8, 2016)

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Administration of Government v. Administration of Justice ADMINISTRATION OF GOVERNMENT

ADMINISTRATION OF JUSTICE

Administrative officers must determine what is the law in order to determine whether they are competent to act and if it is wise to act.

Work done consists in the decision of controversies between individuals and government officers, as to the applicability in the cases in question; all that judicial officers have to do is determine what law is applicable to the facts brought before them. (De Leon, Administrative Law: Text and Cases 19, 2016)

ADMINISTRATION

GOVERNMENT

Refers to the aggregate of persons in whose hands the reins of the government are entrusted by the people for the time being. (US v. Dorr)

Institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a civilized state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. Government is the aggregate of authorities which rule a society. (US v. Dorr, GR No. 1051, 1903)

B. ADMINISTRATIVE AGENCIES Definitions: (1) Government of the Republic of the Philippines - refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other

forms of local government (Sec. 2(1), Introductory Provisions, Administrative Code). (2) National Government - refers to the entire machinery of the central government, as distinguished from the different forms of local governments (Sec. 2(2), Introductory Provisions, Administrative Code). The National Government then is composed of the three great departments: the executive, the legislative and the judicial. (Mactan Cebu International Airport Authority v. Marcos, G.R. No. 120082) (3) Local Government - refers to the political subdivisions established by or in accordance with the Constitution (Sec. 2(3), Introductory Provisions, Administrative Code). (4) Agency - refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein (Sec. 2(4), Introductory Provisions, Administrative Code). Agency v. Instrumentality Agency

Instrumentality

Any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein.

Any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually, through a charter. This term includes regulatory agencies, chartered institutions and governmentowned and controlled corporations.

(Mactan Cebu International Airport Authority v. Marcos, G.R. No. 120082)

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(5) National Agency - refers to a unit of the National Government (Sec. 2(5), Introductory Provisions, Administrative Code). (6) Local Agency - refers to a local government or a distinct unit therein (Sec. 2(6), Introductory Provisions, Administrative Code). (7) Department - refers to an executive department created by law. For purposes of Book IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a department, regardless of its name or designation (Sec. 2(7), Introductory Provisions, Administrative Code). (8) Bureau - refers to any principal subdivision or unit of any department. For purposes of Book IV, this shall include any principal subdivision or unit of any instrumentality given or assigned the rank of a bureau, regardless of actual name or designation, as in the case of department-wide regional offices (Sec. 2(8), Introductory Provisions, Administrative Code). (9) Office - refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation (Sec. 2(9), Introductory Provisions, Administrative Code). (10) Instrumentality - refers to any agency of the National Government, not integrated within the department framework vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations (Sec. 2(10), Introductory Provisions, Administrative Code). NOTE: Definition of “Instrumentality” under the Administrative Code is still relevant, especially to regulatory agencies EXCEPT for those corporate entities or those endowed with corporate powers, which are now covered under the definition of GICP/GCE under the GOCC Governance Act of 2011. When the law vests in a government instrumentality corporate powers, the instrumentality does not become a corporation. Unless the government

instrumentality is organized as a stock or non-stock corporation, it remains a government instrumentality exercising not only governmental but also corporate powers (Manila International Airport Authority v. Court of Appeals, G.R. No. 155650). Many government instrumentalities are vested with corporate powers but they do not become stock or non-stock corporations, which is a necessary condition before an agency or instrumentality is deemed a government-owned or controlled corporation. Examples are the Mactan International Airport Authority, the Philippine Ports Authority, the University of the Philippines and Bangko Sentral ng Pilipinas. All these government instrumentalities exercise corporate powers but they are not organized as stock or non-stock corporations as required by Section 2(13) of the Introductory Provisions of the Administrative Code (Manila International Airport Authority v. Court of Appeals, G.R. No. 155650). (11) Government-Owned or -Controlled Corporation (GOCC) - refers to any agency organized as a stock or nonstock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government of the Republic of the Philippines directly or through its instrumentalities either wholly or, where applicable as in the case of stock corporations, to the extent of at least a majority of its outstanding capital stock: Provided, however, That for purposes of this Act, the term "GOCC" shall include GICP/GCE and GFI as defined herein. (GOCC Governance Act of 2011, Republic Act No. 10149, [June 6, 2011]) (12) Government Instrumentalities with Corporate Powers (GICP)/Government Corporate Entities (GCE) - refer to instrumentalities or agencies of the government, which are neither corporations nor agencies integrated within the departmental framework, but vested by law with special functions or jurisdiction, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy usually through a charter (Sec. 3(n), GOCC Governance Act of 2011). An agency will be classified as a government instrumentality vested with corporate powers when the following elements concur: a. it performs governmental functions; and b. it enjoys operational autonomy. It does not matter that the government instrumentality is endowed with corporate powers (Light Page 305 of 479

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Rail Transit Authority v. Quezon City, G.R. No. 221626, 2019). NOTE: Legal consequence of being classified as a government instrumentality is that it’s exempted from real property tax. (Light Rail Transit Authority v. Quezon City, G.R. No. 221626, 2019) Hence, in addition to government-owned and controlled corporations (GOCCs) and instrumentalities, a third category of government agencies under the jurisdiction of the OGCC is now recognized — government instrumentalities vested with corporate powers or government corporate entities. These entities remain government instrumentalities because they are not integrated within the department framework and are vested with special functions to carry out a declared policy of the national government. An agency will be classified as a government instrumentality vested with corporate powers when the following elements concur: a) it performs governmental functions, and b) it enjoys operational autonomy. The PHC passes these twin criteria. (Philippine Heart Center v. Local Government of Quezon City, G.R. No. 225409, [March 11, 2020]) (13) Regulatory agency - refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interest of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council (Sec. 2(11), Introductory Provisions, Administrative Code). (14) Chartered institution - refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes the state universities and colleges and the monetary authority of the State (Sec. 2(12), Introductory Provisions, Administrative Code). (15) “Officer” - as distinguished from “clerk” or “employee”, refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, “officer” includes any government employee, agent or body having authority to do the act or exercise that function (Sec. 2(14), Introductory Provisions, Administrative Code).

(16) “Employee” - when used with reference to a person in the public service, includes any person in the service of the government or any of its agencies, divisions, subdivisions or instrumentalities (Sec. 2(15), Introductory Provisions, Administrative Code).

C. POWERS OF ADMINISTRATIVE AGENCIES Nature of Powers (1) Special and Limited Jurisdiction. In general, the jurisdiction of administrative officers and agencies is special and limited. They possess a limited jurisdiction, or purely constitutional or statutory powers, and they possess only such powers and authority as have been specifically conferred upon them by the Constitution or specifically granted to them by their enabling statutes and those as may be necessarily implied in the exercise thereof or incidental to the attainment of their purposes or objectives. (2) Broad Powers within Jurisdiction. However, the powers conferred on them must be commensurate with the duties to be performed and the purposes to be lawfully effected. In various instances, the powers of particular administrative bodies have been held broad and plenary within their fields, and in such case, it is only where such power and authority have been manifestly abused that a court may interfere. (3) Powers Limited by Constitution, Law, and Regulations. A government agency must respect the presumption of constitutionality and legality to which statutes and administrative regulations are entitled until such statute or regulation is repealed or amended, or until set aside in an appropriate case by a competent court, and ultimately by the Supreme Court. It is not authorized to substitute its own judgment for any applicable law or administrative regulation with the wisdom or propriety of which it does not agree, at least not before such law or regulation is set aside by the authorized agency of the government. (De Leon, Administrative Law: Text and Cases 66, 2016) While it is a fundamental rule that an administrative agency has only such powers as are expressly granted to it by law, it is likewise a settled rule that an administrative agency has also such powers as are necessarily implied in the exercise of its express powers. (LLDA v. CA, GR No. 110120, 1994) Page 306 of 479

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The Laguna Lake Development Authority also has power to impose fines in the exercise of its function as a regulatory and quasi-judicial body with respect to pollution cases in the Laguna Lake region. (Public Hearing Committee of the Laguna Lake Development Authority v. SM Prime Holding, G.R. 170599, 2010). Discretionary vs. Ministerial 1. Discretionary - The power or right conferred upon them by law to act officially under certain circ*mstances, according to the dictates of their own judgment and conscience, and not controlled by the judgment or conscience of others. 2. Ministerial - Nothing is left to discretion; a simple, definite duty arising under conditions admitted or proved to exist, and imposed by law; a duty performed in response to what has been imposed by law under conditions specified by law not being dependent upon the officer’s judgment or discretion. DETERMINATIVE POWERS To better enable the administrative body to exercise its executive functions, it is also vested with Determinative powers classified generally by Professor Freund as follows: Enabling – Permits the doing of an act, without which it would be unlawful (e.g. issuing of licenses and permits). Directing – Orders the doing or performance of particular acts to ensure compliance with the law and are often exercised for corrective purposes. (e.g. installation of safety devises in common carriers). Dispensing – Relaxes the general operation of law or exempts the performance from a general duty (e.g. exemption from taxes by certain industries). Summary – Uses force upon persons or things without prior judicial warrant (e.g. padlocking by Mayor of a business for lack of permit; confiscation of items prohibited per se). Examining – Inspects records and premises; investigates persons, entities, and activities coming under its jurisdiction (e.g. DOLE visitorial power; Ombudsman powers).

NOTE: According to Professor Cruz, determinative powers are part of the exercise of quasi-judicial authority. It is submitted, however, that these determinative powers can also be exercised as part of the quasi-legislative authority and are very much part of the executive and regulatory functions of administrative bodies whenever allowed by their charters.

1. QUASI-LEGISLATIVE (RULEMAKING) POWER DEFINITION. The authority delegated by the lawmaking body to the administrative body to adopt rules and regulations intended to carry out the provisions of a law and implement legislative policy. (Carlo Cruz, Philippine Administrative Law 36, 2016) Administrative agencies are endowed with powers legislative in nature or quasi-legislative (i.e., to make rules and regulations), and, in practical effect, with the power to make law. However, the essential legislative functions may not be delegated to administrative agencies and in this sense, it is said that administrative agencies have no legislative power and are precluded from legislating in the strict sense.' What may be granted to an administrative agency is rule-making power to implement the law it is entrusted to enforce. It necessarily includes the power to amend, revise, alter, or repeal its rules and regulations. It is a standard provision in administrative rules that prior issuances that are inconsistent therewith are declared repeated or modified. (De Leon, Administrative Law: Text and Cases 90, 2016) Authority delegated by Congress to the administrative body to adopt rules and regulations intended to carry out the provisions of a law, and implement legislative policy. This is a form of delegated legislation. Valid regulations have the force and effect of law. LEGISLATIVE

QUASI-LEGISLATIVE

Involves the discretion to determine what the law shall be

Only involves the discretion to determine how the law shall be enforced

Cannot be delegated

Can be delegated

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NON-DELEGABILITY PRINCIPLE. The rule is that what has been delegated cannot be delegated, or as expressed in the Latin maxim: potestas delegate non delegare potest. This rule is based upon the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. This rule however admits of recognized exceptions such as the grant of rulemaking power to administrative agencies. They have been granted by Congress with the authority to issue rules to regulate the implementation of a law entrusted to them. Delegated rule-making has become a practical necessity in modern governance due to the increasing complexity and variety of public functions. [Dagan v. Philippine Racing Commission, GR No. 175220, 2009] Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-making authority to implementing agencies for the limited purpose of either filling up the details of the law for its enforcement (supplementary rule-making) or ascertaining facts to bring the law into actual operation (contingent rule-making). TESTS OF DELEGATION. Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate. It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegate's authority and prevent the delegation from running riot. To be sufficient, the standard must specify the limits of the delegate's authority, announce the legislative policy and identify the conditions under which it is to be implemented. (Abakada Guro v. Purisima, GR No. 166715, 2008) NOTE: (1) If the law passes the completeness test (e.g. K to 12 Law), there is no need to comply with the sufficient standard test, it would constitute as a valid delegation. (2) If the law is not complete, but passes the sufficient standard test, it would constitute as a valid delegation. (3) If the law fails the sufficient standard test, then it would constitute as an undue delegation and hence, unconstitutional.

Exceptions (To the Rule Requiring Standards; When Not Required): (SPIRPE) (1) Handling of State property or funds (2) When the law does not involve Personal or property rights (3) Matters of Internal administration (4) Power of the board to make Recommendation (5) Matters involving Privileges (like use of property, engaging in profession) (6) Regulation or Exercise of police power to protect general welfare, morals and public policy NOTE: Still subject to reasonableness standard: (1) Bear reasonable relation to the purpose sought to be accomplished (2) Supported by good reasons (3) Free from constitutional infirmities or charge of arbitrariness. EXAMPLES OF VALID DELEGATION (1) Issuance prohibiting selling of shares without prior license for public interest. (People v. Rosenthal, GR No. 46076, 1939) (2) Prohibition of animal drawn carriage to use the roads during certain times for public convenience and welfare. (Calalang v. Williams, GR No. 47800, 1940) (3) Authorizing President to make reforms and changes in GOCCs for economy and efficiency. (Cervantes v. Auditor General, GR No. L-4043, 1952) (4) K to 12 Law implementation is complete in conditions and parameters through the legislative policy on the power delegated to the DepEd, CHED, and TESDA. (Council of Teachers v. Secretary of Education, GR No. 216930, 2018) EXAMPLES OF INVALID/UNDUE DELEGATION (1) 2013 PDAF article – Post enactment identification of by the legislators. (Belgica v. Ochoa, GR No. 208566, 2013) (2) Section 8, PD 910 (Malampaya Fund) - The phrase "and for such other purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an undue delegation of legislative power. (Belgica v. Ochoa, GR No. 208566, 2013) (3) Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Page 308 of 479

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Fund may be used "to [first,] finance the priority infrastructure development projects” which gives a carte blanche authority to use the fund for any infrastructure project that the President may deem as a priority. (Belgica v. Ochoa, GR No. 208566, 2013) (4) EO 626 s.1980 that authorized the distribution of confiscated carabao to charitable institutions that the Chairman of the National Meal Inspection Commission “may see fit;” (Ynot v. IAC, GR No. 74457, 1987) (5) Act No. 2868 authorized Governor-General to issue “in his discretion” a proclamation fixing price of palay and making the violation a crime. (US v. Ang Tang Ho, GR No. L-17122, 1922) DELEGATED RULE-MAKING. The conceptual treatment and limitations of delegated rule-making were explained in the case of People v. Maceren as follows: “The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the nondelegation of legislative powers. Administrative regulations or "subordinate legislation" calculated to promote the public interest are necessary because of "the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law." xxx xxx xxx [Nevertheless, it must be emphasized that] [t]he rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (Belgica v. Ochoa, GR No. 208566, 2013) Rule means any agency statement of general applicability that (1) implements or (2) interprets a law, (3) fixes and describes the procedures in, or practice requirements of, an agency, including its regulations. The term includes memoranda or statements concerning the (4) internal administration or management of an agency not affecting the rights of, or procedure available to, the public. [Book VII, Chapter 1, Sec. 2 (2), Administrative Code of 1987] Rule-making means an agency process for the formulation, amendment, or repeal of a rule. [Book BACK TO TOC

VII, Chapter 1, Sec. 2 (4), Administrative Code of 1987] Limitations on the Rule-Making Power A public administrative body may make only such rules and regulations as are within the limits of the powers granted to it or what is found in the legislative enactment itself; otherwise, they become void. (1) Must not be inconsistent with the provisions of the Constitution or a statute, particularly the statute it is administering or which created it, or which are in derogation of, or defeat, the purpose of a statute. (2) It may not, by its rules and regulations, amend, alter, modify, supplant, enlarge or expand, restrict or limit the provisions or coverage of the statute as this power belongs to the legislature. (3) There is no dispute that in case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of the basic law. (4) A rule or regulation should be uniform in operation, reasonable, and not unfair or discriminatory.(De Leon, Administrative Law: Text and Cases 96, 2016) Rule-Making Making Principles: (CURLAP) (1) It must be Consistent with the law and the constitution. (2) It must be Uniform in operation, reasonable and not unfair or discriminatory. (3) It must have a Reasonable relationship to the purpose of the law. (4) It must be within the Limits of the powers granted to administrative agencies. (5) May not Amend, alter, modify, supplant, enlarge, limit or nullify the terms of the law. (6) Must be promulgated in accordance with the Prescribed procedure. NOTE: (1) According to Justice Carpio in his Separate Concurring Opinion in Abakada Guro v. Purisima cited in Genuino v. De Lima: The inherent power of the Executive to adopt rules and regulations to execute or implement the law is different from the delegated legislative power to prescribe rules. The inherent power of the Executive to adopt rules to execute the law does not require any legislative standards for its exercise while the delegated legislative power requires sufficient Page 309 of 479

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legislative standards for its exercise. xxx xxx xxx Whether the rule-making power by the Executive is a delegated legislative power or an inherent Executive power depends on the nature of the rule-making power involved. If the rule-making power is inherently a legislative power, such as the power to fix tariff rates, the rule-making power of the Executive is a delegated legislative power. In such event, the delegated power can be exercised only if sufficient standards are prescribed in the law delegating the power. If the rules are issued by the President in implementation or execution of selfexecutory constitutional powers vested in the President, the rule-making power of the President is not a delegated legislative power. x x x. The rule is that the President can execute the law without any delegation of power from the legislature. Otherwise, the President becomes a mere figure-head and not the sole Executive of the Government. (Genuino v. De Lima, G.R. Nos. 197930, 199034 & 199046, April 17, 2018) (2) However, the questioned circular in Genuino v. De Lima does not come under the inherent power of the executive department to adopt rules and regulations as clearly the issuance of HDO and WLO is not the DOJ's business. As such, it is a compulsory requirement that there be an existing law, complete and sufficient in itself, conferring the expressed authority to the concerned agency to promulgate rules. On its own, the DOJ cannot make rules, its authority being confined to execution of laws. (Genuino v. De Lima, G.R. Nos. 197930, 199034 & 199046, April 17, 2018)

a. Kinds of Administrative Rules and Regulations An administrative regulation may be classified as follows (Republic v. Drugmaker's Laboratories, Inc., G.R. No. 190837, 2014): (1) Legislative rules are in the nature of subordinate legislation and designed to implement a primary legislation by providing the details thereof. They usually implement existing law, imposing general, extra-statutory obligations pursuant to authority properly delegated by Congress and effect a change in existing law or

policy which obligations.

affects

individual

rights

and

(2) Interpretative rules are intended to interpret, clarify or explain existing statutory regulations under which the administrative body operates. Their purpose or objective is merely to construe the statute being administered and purport to do no more than interpret the statute. Simply, they try to say what the statute means and refer to no single person or party in particular but concern all those belonging to the same class which may be covered by the said rules. When an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law. (CIR v. Court of Appeals, G.R. No. 119761, 1996) (3) Contingent rules are those issued by an administrative authority based on the existence of certain facts or things upon which the enforcement of the law depends. Congress may provide that a law shall take effect upon the happening of future specified contingencies leaving to some other person or body the power to determine when the specified contingency has arisen. (1) It may delegate a power not legislative which it may itself rightfully exercise. The power to ascertain facts is such power which may be delegated. (2) The finding by an administrative authority of the existence of conditions defined in the statute under which its provisions shall become operative comes under the head of rule-making since it usually involves judgment, if not discretion. The true distinction, therefore, is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring an authority of or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done, to Page 310 of 479

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the latter, no valid objection can be made. (De Leon, Administrative Law: Text and Cases 108, 2016) Kinds of Administrative Rules (1) Non-Legislative Rule (a) No force of law (b) No need for notice, comment and publication (c) Exception: When rule affects third persons (Tañada v. Tuvera, GR No. L63915, 1986) (d) Examples: (SIPI) (1) Supplementary - Those which supply details, also known as detailed legislation. (2) Interpretative - Those that do no more than to interpret a statute. These are given weight and respect but are not conclusive to the courts. NOTE: Recall that administrative agencies are possessed of specialized knowledge (3) Procedural - Those which describe the method by which the agency will carry out its appointed functions (4) Internal - Those issued by a superior administrative or executive officer to his subordinates for the proper and efficient administration of law. (2) Legislative/Substantive Rule (a) With force of law (b) Needs notice, comment, and publication (Chap 2. Book VII, Administrative Code and Art. 2, Civil Code) (c) Examples: (PCS) (i) Penal - Those that carry out penal or criminal sanctions for violation of the same. (ii) Contingent - Those which determine when a statute will go into effect. Power to ascertain the happening of such facts may be delegated to administrative agencies (iii) Supplementary - Those which only supply details, also known as detailed legislation.

b. Requisites for Validity To be valid, an administrative issuance must comply with the following requisites (Executive Secretary v. Southwing Heavy Industries, Inc., G.R. Nos.

164171, 164172 & 168741, 2006 citing Carlo Cruz, Philippine Administrative Law) (1) Its promulgation must be authorized by the legislature. There is a delegation made by Congress subject to the Completeness Test and the Sufficient Standard Test. (2) It must be promulgated in accordance with the prescribed procedure. (a) Notice and Hearing GENERAL RULE: Prior notice and hearing not required in the following (Provincial Bus Operators v. DOLE, GR No. 78385, 2018, J. Leonen): (i) Interpretative Rule no real consequence more than what the law itself prescribes (Cawad v. Abad, GR No. 207145, 2015); (ii)

Administrative regulation or issuance is of general application (i.e. applies to all; not just to a selected class) (Philippine Consumers Foundation, Inc. v. Secretary of Education, Culture and Sports, G.R. No. 78385, 1987);

(iii)

Internal in nature (Board of Trustees v. Velasco, GR No. 170463, 2011);

(iv)

Rule is procedural (Rules of Procedure; since it’s also of general application);

(v)

Rule is merely a legal opinion (hence, advisory and no adjudication; e.g. BIR or SEC opinions);

(vi)

Substantive rule where class affected is at large and questions to be resolved require use of discretion by the rulemaking body. (Corona v. United Harbor Pilots, GR No. 111953, 1997)

EXCEPTIONS: Prior notice & hearing required if: (i) Legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate hearing or consultation (i.e. contained in the law itself);

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(ii)

Rule requires determination of past events or facts (through a hearing or proceeding);

(iii)

Regulation is settlement of a controversy between specific parties (hence, considered as adjudication) (Philcomsat v. Alcuaz, GR No. 84818, 1989);

(iv)

Rate-fixing in the exercise of quasijudicial authority (Philippine Consumers Foundation, Inc. v. Secretary of Education, Culture and Sports, G.R. No. 78385, 1987)

than what the law itself prescribes (Cawad v. Abad, GR No. 207145, 2015; Tañada v. Tuvera, GR No. L-63915, 1986) (ii)

Those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. (Board of Trustees v. Velasco, GR No. 170463, 2011; Tañada v. Tuvera, GR No. L63915, 1986

(iii)

Letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. (Tañada v. Tuvera, GR No. L-63915, 1986)

(b) Publication GENERAL RULES: Publication required in the following: (i) Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. (Tañada v. Tuvera, GR No. L-63915, 1986) (ii)

(iii)

If the administrative rule substantially adds or increases the burden of those governed, publication is required. (Manila Public School Teachers v. Garcia, GR No. 192708, 2017) Every rule establishing an offense or defining an act which, pursuant to law, is punishable as a crime or subject to a penalty shall in all cases be published in full text. [Sec. 6(2), Chapter 2, Book VII, Administrative Code of 1987]

Special Requisites of Penal Rules: (PFPO) (1) The law which authorizes the promulgation of rules and regulations must itself Provide for the imposition of a penalty for their violation; (2) The law must Fix or define such penalty; (3) The violation for which the rules and regulations impose a Penalty must be punishable under the law itself; and (4) The rules and regulations must be published in the Official Gazette or Newspaper of General Circulation and archived at the UP Law Center. EXCEPTIONS: Publication not required in the following: (i) Interpretative rule/circular/regulations, which add no real consequence more

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules on guidelines to be followed by their subordinates in the performance of their duties. (VFP v. Reyes, G.R. No. 155027, 2006) Summary Rules on the Publication and Notice and Hearing Requirements of Administrative Rules and Regulations PUBLI CATIO N

NOTICE AND COMMENT

KIND (SIC PIP)

GRANT

Legislative (Supplementary/ Subordinate)

Express or Implied

Yes

Yes/No

Interpretative

Express or Implied

Contingent

Express

Yes

Procedural

Express or Implied

Yes

Internal

Express or Implied

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Express

Yes

(c) Filing with the UP Law Center-Office of the Administrative Registrar Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Each rule shall become effective fifteen (15) days from the date of filing. [Secs. 3-4, Chapter 2, Book VII, Administrative Code of 1987] According to the Administrative Code, 3 copies of every rule should be filed in the Office of the National Administrative Register (ONAR) of the UP Law Center. Failure to comply with this makes the administrative issuance ineffective & may not be enforced. (GMA v. MTRCB, G.R. 148579, 2007) This registration requirement is part of publication. Not all rules and regulations adopted by every government agency are to be filed with the UP Law Center. Only those of general or of permanent character are to be filed. Internal rules which are meant to regulate the personnel of the GSIS are not subject to filing with the UP Law Center. (Board of Trustees v. Velasco, G.R. 17046, 2011). NOTE: Whenever publication is required, it is the condition sine qua non that will make the regulation effective. Thus, filing alone without publication is not the operative act that will make the administrative rule effective. [Republic v. Express Telecommunications, GR No. 147096, 2002] (3) It must be within the scope of the authority given by the legislature (must not be ultra vires) This simply means that the resulting IRRs must not be ultra vires as to be issued beyond the limits of the authority conferred. It is basic that an administrative agency cannot amend an act of Congress for administrative IRRs are solely intended to carry out, not to supplant or to modify, the law. The administrative agency issuing the IRRs may not enlarge, alter, or restrict the provisions of the law it administers and enforces, and cannot engraft additional non-contradictory requirements not contemplated by the Legislature. (Lokin, Jr. v. Commission on Elections, G.R. Nos. 179431-32 & 180443, 2010) The DOH’s power under the Milk Code to control information regarding breast milk vis-a-vis breast milk substitutes is not absolute, as the power to

control does not encompass the power to absolutely prohibit the advertising, marketing, and promotion of breast milk substitutes. Neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or impose administrative fines. Without any express grant of power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. The DOH exceeded its authority by providing for such fines or sanctions in the RIRR. (Pharmaceuticals and Health Care Association of the Philippines v. Duque, G.R. 173034, 2007) (4) It must be reasonable. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. And if distinction and classification ha[ve] been made, there must be a reasonable basis for said distinction. (PBOAP v. DOLE citing Ichong v. Hernandez)

2. QUASI-JUDICIAL (ADJUDICATORY) POWER Powers and functions which involve the decision or determination by administrative agencies of the rights, duties, and obligations of specific individuals and persons, as contrasted with powers (i.e., rulemaking) of administrative agencies which, while they may involve decisions or determinations in the broadest sense, involve persons generally rather than specially, and usually operate only prospectively. (De Leon, Administrative Law: Text and Cases 172, 2016) DEFINITION. The Quasi-Judicial Power has been defined as the power of the administrative authorities to make determinations of facts in the performance of their official duties and to apply the law as they construe it to the facts so found. The exercise of this power is only incidental to their main function, which is the enforcement of the law. (Carlo Cruz, Philippine Administrative Law 49, 2016) QUASI-JUDICIAL BODY. A quasi-judicial body has been defined as "an organ of government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule making." The most common types of such bodies have been listed as follows [Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989 citing GONZALES, ADMINISTRATIVE LAW, A TEXT 1315 (1979)]: Page 313 of 479

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(1) Agencies created to function in situations wherein the government is offering some gratuity, grant, or special privilege, like the defunct Philippine Veterans Board, Board on Pensions for Veterans, and NARRA, and Philippine Veterans Administration. (2) Agencies set up to function in situations wherein the government is seeking to carry on certain government functions, like the Bureau of Immigration, the Bureau of Internal Revenue, the Board of Special Inquiry and Board of Commissioners, the Civil Service Commission, the Central Bank of the Philippines. (3) Agencies set up to function in situations wherein the government is performing some business service for the public, like the Bureau of Posts, the Postal Savings Bank, Metropolitan Waterworks & Sewerage Authority, Philippine National Railways, the Civil Aeronautics Administration. (4) Agencies set up to function in situations wherein the government is seeking to regulate business affected with public interest, like the Fiber Inspections Board, the Philippine Patent Office, Office of the Insurance Commissioner. (5) Agencies set up to function in situations wherein the government is seeking under the police power to regulate private business and individuals, like the Securities & Exchange Commission, Board of Food Inspectors, the Board of Review for Moving Pictures, and the Professional Regulation Commission. (6) Agencies set up to function in situations wherein the government is seeking to adjust individual controversies because of some strong social policy involved, such as the National Labor Relations Commission, the Court of Agrarian Relations, the Regional Offices of the Ministry of Labor, the Social Security Commission, Bureau of Labor Standards, Women and Minors Bureau.

QUASI-JUDICIAL & QUASI-LEGISLATIVE POWERS DISTINGUISHED Quasi-Legislative v. Quasi-Judicial: QUASILEGISLATIVE Grant Express or Implied (SIC PIP) Parties All / Sectors involved Adversarial No Controversy None Notice and Nor Required Hearing (unless requires it; there is a radical change) Primary J./ Not applicable Exhaustion (Judicial Review at of A.R. first instance) Time Future Publication Depends on type of rule (SIC PIP) Res Not Applicable Judicata

QUASIJUDICIAL Express Particular Yes Exists Required

Applicable Past/Present Not Required Applicable

The Presidential Electoral Tribunal (PET) does NOT exercise quasi-judicial functions. When the Supreme Court, as the PET, resolves a presidential or vice-presidential election contest, it performs what is essentially a judicial power. (Macalintal v. Presidential Electoral Tribunal, G.R. 191618, 2010). The classification of positions in career service is a quasi- legislative, not a quasi-judicial, issuance. This distinction determines whether prior notice and hearing are necessary. It was an internal matter which did not need prior publication. It had been issued as an incident of the administrative body’s power to issue guidelines for government officials to follow in performing their duties. (Abella v. CSC, G.R. 152574, 2004). The fact that the Toll Regulatory Board is exercising its administrative or executive functions such as the granting of franchises or awarding of contracts and at the same time exercising its quasi-legislative and/or quasi-judicial functions (e.g., rate-fixing), does not support a finding of a violation of due process or the Constitution. (Francisco, Jr., et al. vs. Toll Regulatory Board, G.R. 166910 / 169917 / 173630 / 183599, 2010). It is well settled that findings of fact of quasi-judicial agencies, such as the COA, are generally accorded respect and even finality by this Court, if supported Page 314 of 479

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by substantial evidence, in recognition of their expertise on the specific matters under their jurisdiction. (Reyna v. Commission on Audit, G.R. 167219, 2011). The doctrine of separate personality of a corporation finds no application in a government agency. Also, the law states that expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefore. (Verzosa, Jr. v. Carague, G.R. 157838, 2011). Doctrine of Non-Interference Another basic principle is the doctrine of noninterference which should be regarded as highly important in judicial stability and in the administration of justice whereby the judgment of a court of competent jurisdiction may not be opened, modified or vacated by any court or tribunal of concurrent jurisdiction.([Freeman, Inc. v. Securities and Exchange Commission, G.R. No. 110265, [July 7, 1994], 304 PHIL 139-148 citing Mercado v. Ubay, GR No. L-35830, 24 July 1990) As a rule, where legislation provides for an appeal from decisions of certain administrative bodies to the Court of Appeals, it means that such bodies are co-equal with the Regional Trial Courts, in terms of rank and stature, and logically, beyond the control of the latter. [Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, 1989] Courts may not interfere with administrative and discretionary functions of administrative agencies. It should be emphasized here, as again stressed by the Court in the case of Republic, et al. vs. De los Angeles, et al., G.R. No. L-30240, March 25, 1988, that "it is well-recognized principle that purely administrative and discretionary functions may not be interfered with by the courts. In general, courts have no supervising power over the proceedings and actions of the administrative departments of government. This is generally true with respect to acts involving the exercise of judgment or discretion, and findings of fact. There should be no thought of disregarding the traditional line separating judicial and administrative competence, the former being entrusted with the determination of legal questions and the latter being limited as a result of its expertise to the ascertainment of the decisive facts." [Presidential Commission on Good Government v. Peña, G.R. No. 77663, [April 12, 1988], 243 PHIL 93-135]

The doctrine of judicial stability or non-interference in the regular orders or judgments of a co-equal court is an elementary principle in the administration of justice: no court can interfere by injunction with the judgments or orders of another court of concurrent jurisdiction having the power to grant the relief sought by the injunction. The rationale for the rule is founded on the concept of jurisdiction: a court that acquires jurisdiction over the case and renders judgment therein has jurisdiction over its judgment, to the exclusion of all other coordinate courts, for its execution and over all its incidents, and to control, in furtherance of justice, the conduct of ministerial officers acting in connection with this judgment. [Barroso v. Omelio, G.R. No. 194767 , 2015] Enforcement of decisions It must be in accordance with the manner prescribed by the statute. If there is no provision, resort to the courts is necessary for enforcement. When fully authorized by law, administrative agencies (e.g. Civil Aeronautics Board) can impose fines in the nature of civil penalty for violations of its rules and regulations. Thus, in CAB v. PAL: There exists but an insignificant doubt in Our mind that the C.A.B. is fully authorized by law (Republic Act 776) to impose fines in the nature of civil penalty for violations of its rules and regulations. To deprive the C.A.B. of that power would amount to an absurd interpretation of the pertinent legal provision because the CAB is given full power on its own initiative to determine whether to "impose, remit, mitigate, increase or compromise" "fines and civil penalties", a power which is expressly given to the Civil Aeronautics Administrator whose orders or decision may be reviewed, revised, reversed, modified or affirmed by the CAB. Besides, to deprive the C.A.B. of its power to impose civil penalties would negate its effective general supervision and control over air carriers if they can just disregard with impunity the rules and regulations designed to insure public safety and convenience in air transportation. If every time the C.A.B. would like to impose a civil penalty on an erring airline for violation of its rules and regulations it would have to resort to courts of justice in protracted litigations then it could not serve its purpose of exercising a competent, efficient and effective supervision and control over air carriers in their vital role of rendering public service by affording safe and convenient air transit. (Civil Aeronautics Board v. Philippine Air Lines, Inc., G.R. No. L-40245, April 30, 1975) Page 315 of 479

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NOTE: Administrative agencies that have been, by authority of law, granted the power to render decisions, issue orders, or impose fines would have the corresponding power to enforce the same as well, such as the Energy Regulatory Commission (ERC), National Telecommunications Commission (NTC), and Civil Aeronautics Board. Characteristics of Quasi-Judicial Proceedings – (PJAC) (1) Adversarial in nature; every proceeding is adversary in substance if it may result in an order in favor of one person against another. (2) Such proceedings partake of the nature of Judicial proceedings if it involves taking and evaluation of evidence, determination of facts based upon evidence presented and rendering an order or decision supported by the facts proved. (3) Particular proceedings before an administrative agency have been held Civil rather than criminal in nature. (4) The proceeding for forfeiture while administrative in character thus possesses a criminal or penal aspect. (Cabal v. Kapunan, G.R. L-19052, 1962). Requisites of Quasi-Judicial Proceedings: (JD) (1) Jurisdiction (defined by law/charter) - power and authority given by law to hear and decide a case; consists of TWO elements—jurisdiction over subject-matter and over the person. Without jurisdiction, acts are void and open to collateral attack. (a) Administrative agencies are tribunals of specialized or limited jurisdiction, which is dependent entirely upon the validity and the terms of the statutes reposing power in them. (b) An administrative agency cannot enlarge its own jurisdiction nor can jurisdiction be conferred upon an agency by parties before it. (c) When a particular statute authorizes an administrative agency to act in a particular situation, it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act; an administrative agency’s determination as to its jurisdiction is not conclusive to the courts. (d) Expiration of a statute may be held not to deprive an administrative agency of jurisdiction to enforce the statute as to liabilities incurred while the statute was in force, where a general saving statute continues such liabilities. BACK TO TOC

(e) Administrative agencies are creatures of the law and they have no general powers but only such as conferred by law; where the law confines in an administrative officer the power to determine particular questions or matters upon facts presented, the jurisdiction of such office shall prevail over courts. (f) In order for the Court to acquire jurisdiction over an administrative case, the complaint must be filed during the incumbency of the respondent. Once jurisdiction is acquired, it is not lost by reason of respondent’s cessation from office. (Office of the Court Administrator v. Andaya, A.M. RTJ-092181, 2013).

(2) Due Process — Doctrine of primary jurisdiction. (a) If the determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before remedy will be supplied by the courts. (b) Failure to comply with this doctrine renders the action open to a motion to suspend pending referral of the issues to the administrative agency.

a. Administrative Due Process (HIP DESK) (1) The right to a Hearing, which includes the right to present one’s case and submit evidence in support thereof. However, a “trial-type” proceeding is not required. The essence is the opportunity to be heard. (2) The tribunal or body or any of its judges must act on its or his own Independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. (3) The decision must be based on the evidence Presented at the hearing or at least contained in the record and disclosed to the parties affected. (4) The Decision must have something to support itself. (5) The tribunal must consider the Evidence presented. (6) Evidence supporting the conclusion must be Substantial. (7) The board or body should, in all controversial questions, render its decision Page 316 of 479

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in such a manner that the parties to the proceeding can Know the various issues involved and the reasons for the decision rendered. (Ang Tibay v. CIR, G.R. L-46496, 1940) Doctrines: (1) For as long as the parties were given fair and reasonable opportunity to be heard and to submit evidence in support of their arguments before judgment was rendered, the demands of due process are sufficiently met. (Casimiro v. Tandog G.R. 146137, 2005) (2) Procedural due process is the constitutional standard demanding that notice and an opportunity to be heard be given before judgment is rendered. As long as a party is given the opportunity to defend his interests in due course, he would have no reason to complain; the essence of due process is in the opportunity to be heard. A formal or trial-type hearing is not always necessary. (Imperial v. GSIS, G.R. 191224, 2011) (3) A decision is void for lack of due process if, as a result, a party is deprived of the opportunity to be heard. A void decision may be assailed or impugned at any time either directly or collaterally by means of a separate action, or by resisting such decision in any action or proceeding where it is invoked. (Uy vs. Court of Appeals, G.R. 109557, 2000) (4) The rule requiring an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing the aid of his subordinates in the hearing and reception of evidence. (American Tobacco v. Director of Patents, G.R. No. 26803, 1975) (5) When an administrative agency acts as a collegiate body, its power and duties cannot be exercised by the members individually. (GMCR v. Bell Telecommunications, G.R. No. 126496, 1997) (6) The essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of. (Antonio v. Villa, G.R.

114694, 2005) (7) There is no denial of due process just because no cross-examination took place. What is important is that she was given the opportunity to do so. (Vertudes v. Buenaflor, G.R. 153166, 2005) (8) In administrative proceedings, the filing of charges and giving reasonable opportunity for the person charged to answer the accusation against him constitute the minimum requirements of due process. (Cayago v. Lina, G.R. 149539, 2005) (9) Some proceedings are instituted by simple ex parte applications. Others are instituted by filing of a charge or complaint by an aggrieved person. Under other statutes, particular administrative agencies may institute proceedings on their own initiative, motion, or complaint. (10) Due Process requirements are usually in the statute, but if none is provided, the Constitutional guarantee of due process of law must be upheld. (Notice, to enable a party to be heard and to present evidence, is not a mere technicality or a trivial matter in any judicial or quasi-judicial proceedings. The service of summons is a very vital and indispensable ingredient of Due Process). When an agency fails to afford previous notice, it may be cured by subsequently giving the party an opportunity to be heard. Motion for reconsideration is a means to cure the defect of notice. (11) Non-filing of any administrative charge against the accused preparatory to his dismissal, and therefore the dismissal effected without any administrative complaint, violated the right of the accused to substantive and procedural due process. He is entitled to reinstatement and to payment of the salaries, allowances, and other benefits withheld from him by reason of his discharge from the service. (Calinisan v. Roaquin, G.R. 159588, 2010) (12) The subsequent desistance by complainant does not free the respondent from liability, as the purpose of an administrative proceeding is to protect the public service based on the time-honored principle that a public officer is a public trust. (Encinas v. Agustin Jr., G.R. 187317, 2013) Page 317 of 479

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(13) The Revised Rules on Administrative Cases in the Civil Service themselves provide that administrative investigations shall be conducted without strict recourse to the technical rules of procedure and evidence applicable to judicial proceedings. (Adalin v. Taninas, G.R. L-198682, 2013) (14) The dismissal of the criminal complaint does not affect the administrative case arising from the same incident which gave rise to said criminal case. (Gabriel v. Ramos, A.M. P-06-2256, 2013) (15) The essence of due process in administrative proceedings is the opportunity to explain one's side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met. What is offensive to due process is the denial of the opportunity to be heard. Nothing is irregular in considering the investigation terminated and submitting the case for resolution based on available evidence upon failure of the respondent to file his counter-affidavit or answer despite giving him ample opportunity to do so. Moreover, Section 14, Article VIII of the 19871 Constitution need not apply to decisions rendered in administrative proceedings. Said section applies only to decisions rendered in judicial proceedings. It would be error to hold or even imply that decisions of executive departments or administrative agencies are obliged to meet the requirements under Section 14, Article VIII. (Flores v. Montemayor, G.R. 170146, 2011) (16) A respondent in an administrative case is not entitled to be informed of the preliminary findings and recommendations; he is entitled only to a reasonable opportunity to be heard, and to the administrative decision based on substantial evidence. (Velasquez v. CA, G.R. No. 150732, 2004) (17) There is no denial of due process if any irregularity in the premature issuance of a 1

Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

decision has been remedied through an Order giving petitioners the right to participate in the hearing of the MR. The opportunity granted by, technically, allowing petitioners to finally be able to file their comment in the case, resolves the procedural irregularity previously inflicted upon petitioners. (NASECORE v. ERC, G.R. 190795, 2011) (18) The Board of Medicine can properly admit formal offer of evidence to prove that a person’s kidneys were in their “proper anatomical locations” at the time she was operated and that the BOM shall determine the probative value thereof, if the original documentary evidence cannot be produced. The rules of evidence are merely the means for ascertaining the truth respecting a matter of fact. Rules of evidence are not strictly applied in proceedings before administrative bodies such as the BOM. (Atienza v. Board of Medicine, G.R. 177407, 2011) WAIVER OF RIGHT TO NOTICE • A failure to comply with the requirements may result in failure to acquire jurisdiction. • Generally, the right to notice in an administrative proceeding may be waived. • If a general appearance is made, jurisdiction over the person is conferred even though there was no proper notice or process. • Personal notice is not required where it is impossible to give such notice. Exceptions to Requirement of Notice and Hearing: (UTOS CLAPP) (1) Urgency of immediate action (2) Tentativeness of the administrative action (3) Right was previously Offered but not claimed (4) Summary abatement of a nuisance per se (5) Cancellation of a passport of a person sought for criminal prosecution (6) Summary proceedings of Levy upon properties of a delinquent taxpayer (7) Replacement of a temporary or Acting appointee (8) Preventive suspension of a public servant facing administrative charges (9) Padlocking of filthy restaurants/ theaters showing obscene movies

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.

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Investigation v. Hearing:

quasi-judicial powers. Hence, Section 11 of the AMLA, authorizing a bank inquiry court order, cannot be said to violate SPCMB’s constitutional right to procedural process. (Subido Pagente Certeza Mendoza and Binay Law Offices v. CA, G.R. No. 216914, 2017)

INVESTIGATION

HEARING

By government officials, which may be held in private are informal proceedings to obtain Information to govern future actions, have no parties, and are not proceedings in which action is taken against anyone.

There are parties and issues of law and of fact to be tried and at the conclusion of the hearing, action is taken which may affect the parties’ rights and parties are entitled to be present in person and by counsel, participate in the hearing, and entitled to be furnished a record of the proceedings.

The filing of formal charges against the respondents without complying with the mandated preliminary investigation (provided by law) or at least giving the respondents the opportunity to comment violated their right to due process. Accordingly, the formal charges are void ab initio and may be assailed directly or indirectly at any time. (Garcia v. Molina, G.R. 157383/174137, 2010) A formal charge is a written specification of the charge(s) against an employee. While its form may vary, it generally embodies a brief statement of the material and relevant facts constituting the basis of the charge(s); a directive for the employee to answer the charge(s) in writing and under oath, accompanied by his/her evidence; and advice for the employee to indicate in his/her answer whether he/she elects a formal investigation; and a notice that he/she may secure the assistance of a counsel of his/her own choice. (PAGCOR v. CA, G.R. 185668, 2011) In administrative proceedings, the complainant bears the onus of establishing, by substantial evidence, the averments of his complaint. A complainant cannot rely on mere conjectures and suppositions. (Sasing v. Gelbolingo, A.M. No. P-123032, 2013; Re: Letter Complaint of Merlita B. Fabiana Against Presiding Justice Andres B. Reyes, A.M. No. CA-13-51-J, 2013) The AMLC’s investigation of money laundering offenses and its determination of possible money laundering offenses, specifically its inquiry into certain bank accounts allowed by court order, does not transform it into an investigative body exercising

Authority to hear can be delegated This subdelegation of power has been justified by "sound principles of organization" which demand that "those at the top be able to concentrate their attention upon the larger and more important questions of policy and practice, and their time be freed, so far as possible, from the consideration of the smaller and far less important matters of detail." Thus, it is well-settled that while the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made. (American Tobacco v. Director of Patents, GR No. 26803, 1975) The (Securities and Exchange) Commission empowered the Prosecution And Enforcement Department (PED) to conduct the hearing and to decide on the revocation of a certificate of registration. The provisions of Pres. Decree No. 902-A as amended do not prohibit the respondent Commission from designating an officer or a division to hear a case. The Court reiterates that in the absence in the rules of the Commission of a provision designating a particular officer or department that should try a particular action, the Commission can validly call upon any of its qualified departments to try a particular action, including the PED to hear and make a preliminary ruling on the case. This was what the Commission did to meet the demands or orderly and responsible administration of all the task assigned to it as a government agency. [Skyworld v. SEC, GR No. 95778, 1992] Preliminary Investigation is not a quasi-judicial proceeding The prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said Page 319 of 479

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to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal. [Bautista v. Court of Appeals, GR No. 143375, 2001] Contempt Power. "The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of courts, and, consequently, in the administration of justice" (Slade Perkins vs. Director of Prisons, 58 Phil., 271; U. S. vs. Loo Hoe, 36 Phil., 867; In Re Sotto, 46 Off. Gaz. 2570; In Re Kelly, 35 Phil., 944). The exercise of this power has always been regarded as a necessary incident and attribute of courts (Slade Perkins vs. Director of Prisons, Ibid.). [Guevara v. Commission on Elections, G.R. No. L-12596, [July 31, 1958], 104 PHIL 268-278)] Its exercise by administrative bodies has been invariably limited to making effective the power to elicit testimony (People vs. Swena, 296 P., 271). And the exercise of that power by an administrative body in furtherance of its administrative function has been held invalid (Langenberg vs. Decker, 31 N.E. 190; In Re Sims 37 P., 135; Roberts vs. Hacney, 58 S.W., 810). [Guevara v. Commission on Elections, G.R. No. L12596, [July 31, 1958], 104 PHIL 268-278)]

(5) Right to cross-examine witnesses. (6) Agency may make judicial notice to any technical or scientific facts within in its specialized knowledge. (7) The agency shall have the power to require the attendance of witnesses or the production of books, papers, documents and other pertinent data; may invoke the aid of the RTC within whose jurisdiction the contested case falls. (8) Decision - every decision rendered by the agency in a contested case shall be in writing and shall state clearly and distinctly the facts and the law on which it is based; shall decide within 30 days following the submission. (9) Finality of Order - decision shall be final and executory 15 days after the receipt of a copy thereof. (10) Publication and Compilation of decisions - Every agency shall publish and make available for public inspection all decisions and final orders. It shall be the duty of the records officer of the agency to prepare a register or compilation of those decisions or final orders.

b. Administrative Review

Appeal

and

The power to hold in contempt, it has time and again been held, must be exercised, not on the vindictive, but on the preservative principle. It is not to be meted out of pique, or from an imperial sense of the nature and functions of judicial office. [Dumarpa v. Dimaporo, G.R. Nos. 87014-16, [September 13, 1989], 258 PHIL 272-288]

An appeal from a final decision of the agency may be taken to the department head.

NOTE: Exercise by the quasi-judicial body of the power to hold in contempt is through the Rules of Court.

Effect The appeal shall stay the decision appealed from if the appellate agency does not direct otherwise.

Rules on Adjudication (EO 292, Book VII) (1) Compromise and Arbitration - every agency shall, in the public interest, encourage amicable settlement, compromise and arbitration. (2) All parties shall be entitled to notice and hearing; the notice shall be served at least 5 days before the date of hearing and shall state the date, time, and place of the hearing. (3) Parties shall be given opportunity to present evidence and argument on all issues. (4) Rules on Evidence - May admit evidence commonly accepted by reasonably prudent men.

Action on Appeal The appellate agency may review record and receive additional evidence.

Perfection of Administrative Appeals Appeals shall be perfected within 15 days after the receipt of a copy of the decision complained of by the party adversely affected.

Finality of Decision of Appellate Agency Becomes final 15 days after receipt of the decision by the parties. Judicial Review Agency decisions shall be subject to judicial review. The action may be brought against the agency, its officers, and all indispensable and necessary parties. Perfection of Appeal Page 320 of 479

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(1) The appeal shall be perfected by filing with the agency within 15 days from receipt of copy; copies shall be served upon the agency and all parties of records. (2) A petition for review shall be perfected within 15 days from receipt of the final administrative decision; 1 month extension may be allowed. Controversies among Government Offices and Corporations All disputes of government agencies and corporations are settled administratively in the manner provided by the Administrative Code. (EO 292, Book IV, Chap. 14) Submission for Decision for Questions of Law v. Questions of Fact and Law QUESTIONS OF QUESTIONS OF FACT LAW AND LAW Submitted to Secretary Solicitor-General - if the of Justice as Attorney- dispute, claim or General. His ruling controversy involves only shall be binding on all departments, bureaus, the parties concerned offices, and other agencies of the National Government as well as the GOCCs. Secretary of Justice, in all other cases not mentioned above. The determination of factual issues may be made by arbitration panel composed of representatives from each party, presided over by Secretary of Justice. General Rule: the decision of Solicitor-General and Secretary of Justice is binding and final. Exception: When the claim involves 1 million pesos, in which case, the dispute is appealed to the Office of the President.

“adjudicatory,” “judicial,” or “quasi- judicial.” On the other hand, it is inapplicable in administrative determinations which are of “administrative,” “executive,” “legislative,” or “ministerial” nature. While it is true that this Court has declared that the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, and not to the exercise of administrative powers, we have also limited the latter to proceedings purely administrative in nature. Therefore, when the administrative proceedings take on an adversary character, the doctrine of res judicata certainly applies. As this Court held in Fortich v. Corona: “The rule of res judicata which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasi-judicial acts of public, executive or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers.” (Derla v. Vda. de Hipolito, G.R. No. 157717, 2011) Example: The principle of res judicata is applicable in labor relations proceedings which are “nonlitigious and summary in nature without regard to legal technicalities obtaining in courts of law.” (Rules and Regulations Implementing the Labor Code, Sec. 5, Rule XIII, Book V). Not Applicable (a) When the question of citizenship is resolved by a court or an administrative body as a material issue in the controversy after a full-blown hearing. (Zita Ngo Burca v. Republic, G.R. 122226, 1998; United Pepsi Cola v. Laguesma, G.R. L-24252, 1973) (b) When WCC Referee awards the employee less than what the law provides (BF Goodrich v. WCC, G.R. L-42319, 1978)

Decisions and orders of administrative agencies have upon their finality, the force and effect of a final judgment within the purview of the doctrine of res judicata. The extent of whether an administrative decision operates as res judicata also depends on the interpretation of the enabling statute.

(c) In the exercise of administrative powers, such as when the Philippine Commission Against Graft and Corruption conducts an investigation over a presidential appointee that is administrative in nature, which is different from the investigation conducted by the Ombudsman to determine criminal liability. (Montemayor v. Bundalian, G.R. No. 149335, 2003)

The application of the doctrine of res judicata is dependent upon the type of determination and proceedings. It is applicable in administrative actions that have been characterized as

(d) If former judgment is based on a prohibited or null and void contract. Therefore, there is no valid judgment which can be predicated on res judicata. (BF Goodrich v.

c. Administrative Res Judicata

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BAR OPERATIONS 2023 WCC, G.R. No. 38569, 1988)

The essential requisites for the existence of res judicata are: (1) the former judgment must be final; (2) it must have been rendered by a court having jurisdiction of the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there must be, between the first and second actions: (a) identity of parties (b) identity of subject matter and (c) identity of cause of action (Ipekdjian v. CTA citing Navarro vs. Director of Lands, L18814, July 31, 1962; Aring vs. Original, L-18464, Dec. 29, 1962). Principle of res judicata in the mode of "conclusiveness of judgment" The principle of res judicata in the mode of "conclusiveness of judgment" applies when the NLRC ruling was affirmed by the Court of Appeals. It was a judicial affirmation through a decision duly promulgated and rendered final and executory when no appeal was undertaken within the reglementary period. The jurisdiction of the NLRC, which is a quasi-judicial body, was undisputed. Neither can the jurisdiction of the Court of Appeals over the NLRC decision be the subject of a dispute. The NLRC case was clearly decided on its merits; likewise on the merits was the affirmation of the NLRC by the Court of Appeals. With respect to the fourth element of identity of parties, we hold that there is substantial compliance. The parties in SSC and NLRC cases are not strictly identical. Jurisprudence however does not dictate absolute identity but only substantial identity. There is substantial identity of parties when there is a community of interest between a party in the first case and a party in the second case, even if the latter was not impleaded in the first case. (SSC v. Rizal Poultry and Livestock Association, G.R. 167050, 2011) Inherent v. Implied v. Expressed: INHERENT Requires disclosure of books, etc.

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IMPLIED 1. Fact-finding 2. Visitorial powers 3. Ocular inspection 4. Clearance 5. Investigative Anomalies (CSC)

EXPRESSED 1. Issue a subpoena 2. Cite a person in contempt 3. Search and Seizure 4. Adjudicate 5. Impose coercive measures

The rule is that findings of fact of administrative bodies, if based on substantial evidence, are controlling on the reviewing authority. (Reyna v. COA, G.R. 167219, 2011) The SEC Hearing Officer had the optimum opportunity to review the pieces of evidence presented before him and to observe the demeanor of the witnesses. Administrative decisions on matters within his jurisdiction are entitled to respect and can only be set aside on proof of grave abuse of discretion, fraud, or error of law. (QueenslandTokyo Commodities, Inc. v. George, G.R. 172727, 2010) The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect during custodial investigation. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the rule under existing laws is that a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of petitioner’s capacity to represent herself, and no duty rests on such body to furnish the person being investigated with counsel. As such, the admissions made by petitioner during the investigation may be used as evidence to justify her dismissal. (Carbonel v. CSC, G.R. 187689, 2010)

3. FACT-FINDING, INVESTIGATIVE, LICENSING, AND RATE-FIXING LAW POWERS INVESTIGATORY POWERS Investigatory or inquisitorial powers include the power of an administrative body to inspect the records and premises, and investigate the activities of persons or entities coming under its jurisdiction,' or to secure, or to require the disclosure of information by means of accounts, records, reports, statements, testimony of witnesses, production of documents, or otherwise.2 They are conferred on practically all administrative agencies. In fact, the investigatory powers of administrative agencies, or their power and facilities to investigate, initiate action, and control the range of investigation, is one of the distinctive functions which sets them apart from the court. (De Leon, Administrative Law: Text and Cases 75, 2016) It has been essayed that the lifeblood of the administrative process is the flow of fact, the gathering, the organization and the analysis of evidence. Investigations are useful for all administrative functions, not only for rule making, adjudication, and licensing, but also for prosecuting, Page 322 of 479

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for supervising and directing, for determining general policy, for recommending, legislation, and for purposes no more specific than illuminating obscure areas to find out what if anything should be done. An administrative agency may be authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also in proceedings whose sole purpose is to obtain information upon which future action of a legislative or judicial nature may be taken and may require the attendance of witnesses in proceedings of a purely investigatory nature. It may conduct general inquiries into evils calling for correction, and to report findings to appropriate bodies and make recommendations for actions. (Evangelista v. Jarencio, GR No. L-29274, 1975) Investigate vs. Adjudicate The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." (Cariño v. Commission on Human Rights, G.R. No. 96681, 1991). In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment." (Cariño v. Commission on Human Rights, G.R. No. 96681, 1991). Thus, in Cariño v. Commission on Human Rights, the CHR cannot try and resolve on the merits (adjudicate) as it only has the power to investigate under the 1987 Constitution. RATE-FIXING POWER POLICE POWER. The regulation of rates to be charged by public utilities is founded upon the police powers of the State and statutes prescribing rules for the control and regulation of public utilities are a valid exercise thereof. (Republic v. MERALCO, GR No. 141314, 2002)

NOTE: Rate-fixing power does not necessarily include the right to impose fines unless expressly provided by its charter. (RCPI v. NTC, GR No. 93237, 1992; PAL v. CAB, GR No. 119528, 1997) NOT THE POWER TO DESTROY. The rule is that the power of the State to regulate the conduct and business of public utilities is limited by the consideration that it is not the owner of the property of the utility, or clothed with the general power of management incident to ownership, since the private right of ownership to such property remains and is not to be destroyed by the regulatory power. The power to regulate is not the power to destroy useful and harmless enterprises, but is the power to protect, foster, promote, preserve, and control with due regard for the interest, first and foremost, of the public, then of the utility and of its patrons. Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of the laws. (Philippine Communications Satellite Corp. v. Alcuaz, G.R. No. 84818, 1989) PRESCRIBING RATES IS EITHER LEGISLATIVE OR ADJUDICATIVE. The function of prescribing rates by an administrative agency may be either a legislative or an adjudicative function. If it were a legislative function, the grant of prior notice and hearing to the affected parties is not a requirement of due process. As regards rates prescribed by an administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are essential to the validity of such rates. When the rules and/or rates laid down by an administrative agency are meant to apply to all enterprises of a given kind throughout the country, they may partake of a legislative character. Where the rules and the rates imposed apply exclusively to a particular party, based upon a finding of fact, then its function is quasi-judicial in character. (Philippine Consumers Foundation, Inc. v. Secretary of Education, Culture and Sports, G.R. No. 78385, 1987) PROVISIONAL RATES. An administrative agency may be empowered to approve provisionally, when demanded by urgent public need, rates of public utilities without a hearing. The reason is easily discerned from the fact that provisional rates are by their nature temporary and subject to adjustment in conformity with the definitive rates approved after final hearing. [Padua v. Ranada, G.R. Nos. 141949 & 151108, 2002].

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SUBSEQUENT RATES. Subsequent toll rate adjustments are mandated by law to undergo both the requirements of public hearing and publication. [Francisco, Jr. v. Toll Regulatory Board, G.R. Nos. 166910, 169917, 173630 & 183599, 2010] REASONABLE AND JUST RATE. In the fixing of rates, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. (Republic v. MERALCO, GR No. 141314, 2002) AGAINST ARBITRARY AND EXCESSIVE RATES. In regulating rates charged by public utilities, the State protects the public against arbitrary and excessive rates while maintaining the efficiency and quality of services rendered. However, the power to regulate rates does not give the State the right to prescribe rates which are so low as to deprive the public utility of a reasonable return on investment. Thus, the rates prescribed by the State must be one that yields a fair return on the public utility upon the value of the property performing the service and one that is reasonable to the public for the services rendered. The fixing of just and reasonable rates involves a balancing of the investor and the consumer interests. (Republic v. MERALCO, GR No. 141314, 2002) SUBJECT TO JUDICIAL REVIEW. While the power to fix rates is (generally) a legislative function, whether exercised by the legislature itself or delegated through an administrative agency, a determination of whether the rates so fixed are reasonable and just is a purely judicial question and is subject to the review of the courts. (Republic v. MERALCO, GR No. 141314, 2002) FINDINGS AND CONCLUSIONS ON THE RATE ARE RESPECTED. The findings and conclusions of the administrative body (e.g. ERB) on the rate that can be charged by MERALCO to the public should be respected. The function of the court, in exercising its power of judicial review, is to determine whether under the facts and circ*mstances, the final order entered by the administrative agency is unlawful or unreasonable. Thus, to the extent that the administrative agency has not been arbitrary or capricious in the exercise of its power, the timehonored principle is that courts should not interfere. The principle of separation of powers dictates that courts should hesitate to review the acts of administrative officers except in clear cases of grave abuse of discretion. [Republic v. MERALCO, GR No. 141314, 2002]

ONLY OPERATING EXPENSES ARE INCLUDED IN THE DETERMINATION OF JUST AND REASONABLE RATE. The principle behind the inclusion of operating expenses in the determination of a just and reasonable rate is to allow the public utility to recoup the reasonable amount of expenses it has incurred in connection with the services it provides. It does not give the public utility the license to indiscriminately charge any and all types of expenses incurred without regard to the nature thereof, i.e., whether or not the expense is attributable to the production of services by the public utility. To charge consumers for expenses incurred by a public utility which are not related to the service or benefit derived by the customers from the public utility is unjustified and inequitable. That’s why in Republic v. MERALCO, the SC ruled that income tax imposed on public utilities should not be included in the computation of operating expenses for purposes of fixing the rates. Thuss the ERB correctly ruled that income tax should not be included in the computation of operating expenses of a public utility. Income tax paid by a public utility is inconsistent with the nature of operating expenses. In general, operating expenses are those which are reasonably incurred in connection with business operations to yield revenue or income. They are items of expenses which contribute or are attributable to the production of income or revenue. As correctly put by the ERB, operating expenses "should be a requisite of or necessary in the operation of a utility, recurring, and that it redounds to the service or benefit of customers.” (Republic v. MERALCO, GR No. 141314, 2002) BASED ON PROPERTIES ACTUALLY USED OR ARE USEFUL TO THE OPERATIONS OF THE PUBLIC UTILITY. “Net average investment method” (i.e. return only on the actual use of the property) treatment is consistent with the settled rule in rate regulation that the determination of the rate base of a public utility entitled to a return must be based on properties and equipment actually being used or are useful to the operations of the public utility. (Republic v. MERALCO, GR No. 141314, 2002) Licensing v. Rate Fixing: LICENSING Licensing is quasi-judicial function

RATE FIXING a

Quasi-legislative - If the rules and rates are meant to apply to all enterprises of a given kind throughout the country, prior notice and hearing is not required. (General Application) Page 324 of 479

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Quasi-judicial - If the rules and rates imposed apply exclusively to a particular party, based upon a finding of fact, prior notice and hearing is required. (Particular Application) A license may not be withdrawn, except for a violation of pertinent laws, rules and regulation, or when public health and safety requires. An existing license shall not expire if the licensee makes a timely application for the renewal.

D. JUDICIAL RECOURSE AND REVIEW 1. DOCTRINE OF PRIMARY JURISDICTION If the case is such that its determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court. This is the doctrine of primary jurisdiction. It applies "where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case the judicial process is suspended pending referral of such issues to the administrative body for its view" (United States v. Western Pacific Railroad Co., 352 U.S. 59, emphasis supplied). (Industrial Enterprises, Inc. v. Court of Appeals, G.R. No. 88550, [April 18, 1990], 263 PHIL 352-360) Courts will respect the sense-making a.k.a. primary jurisdiction of administrative agencies. Under the "sense-making and expeditious doctrine of primary jurisdiction . . . the courts cannot or will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is essential to comply with the purposes of the

regulatory statute administered. [Presidential Commission on Good Government v. Peña, G.R. No. 77663, [April 12, 1988], 243 PHIL 93-135] Courts must allow specialized competence of administrative agencies through Primary Jurisdiction and Exhaustion of Administrative Remedies. The Court recently had occasion to stress once more, in G.R. No. 82218, Reyes vs. Caneba, March 17, 1988, that "(T)he thrust of the related doctrines of primary administrative jurisdiction and exhaustion of administrative remedies is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. Acts of an administrative agency must not casually be overturned by a court, and a court should as a rule not substitute its judgment for that of the administrative agency acting within the perimeters of its own competence." [Presidential Commission on Good Government v. Peña, G.R. No. 77663, [April 12, 1988], 243 PHIL 93-135] Courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. (Professional Regulation Commission v. Alo, G.R. No. 214435, 2022). Relief must first be obtained in an administrative proceeding before a remedy will be supplied by the court, even if the matter is within the jurisdiction of a court. (Republic v. Martinez, G.R. No. 158253, 2007) Exceptions to the Doctrine of Primary Jurisdiction There are established exceptions to the doctrine of primary jurisdiction, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make the rule impractical and oppressive; Page 325 of 479

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(e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of non-exhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (l) in quo warranto proceedings. (Aklan v. Jody King Construction & Development Corp, G.R. No. 197592, 2013) The Doctrine of Primary Jurisdiction does not apply in a case seeking to enjoin the Senate Committee from conducting further hearings against Senator Villar on the alleged double insertion of P200 million for the C-5 Road Extension Project in the 2008 General Appropriations Act. The issues presented here do not require the expertise, specialized skills and knowledge of respondent for their resolution. On the contrary, the issues here are purely legal questions which are within the competence and jurisdiction of the Court, and not an administrative agency or the Senate to resolve. (Pimentel v. Senate, G.R. No. 187714, 2011) The Supreme Court may defer to the competence and expertise of the SEC if there are supervening events which could have substantially changed the factual backdrop of the case while it was pending before the Court. (Nestle v. Uniwide, G.R. 174674, 2010). However, complaints for criminal violations of the Securities Regulation Code must be filed with the SEC, not DOJ or the courts, because it is considered a specialized dispute. (Baviera v. Paglinawan, G.R. 168380, 2007). It bears stressing that the remedies of mandamus and prohibition may be availed of only when there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. Moreover, being extraordinary remedies, resort may be had only in cases of extreme necessity where the ordinary forms of procedure are powerless to afford relief. Thus, instead of immediately filing a petition with the CA, petitioners should have first brought the matter to the CSC which has primary jurisdiction over the case. (Cabungcal v.

Lorenzo, G.R. 160367, 2009) The court may raise the issue of primary jurisdiction motu proprio and its invocation cannot be waived by the failure of the parties to argue it, as the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties. In such a case, the court may (1) suspend the judicial process pending referral of such issues to the administrative body for its view, or (2) if the parties would not be unfairly disadvantaged, dismiss the case w/o prejudice. (Euro-Med Laboratories Phil. v. Province of Batangas, G.R. 148106, 2006) The doctrine of primary administrative jurisdiction is not an ironclad rule. An exception to this rule is where there is already estoppel on the part of the party invoking the doctrine. In this case, the Puerto Princesa LGU neither objected to the RTC’s jurisdiction over the money claim filed by Company X nor did it invoke the doctrine of primary jurisdiction of the COA over the money claim. In fact, it even actively participated in the proceedings. Moreover, after the RTC decision became final and executory, Puerto Princesa did not even avail of the remedies under the Rules of Court to assail the RTC’s jurisdiction such as an annulment of judgment under Rule 47. Hence, Puerto Princesa is already barred by laches from invoking the primary jurisdiction of the COA. (Star Special Corporate Management Inc. v. COA, G.R. No. 225366, J. Leonen, September 1, 2020)

2. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES General Rule: An administrative decision must first be appealed to the administrative superiors up to the highest level before it may be elevated to a court of justice for review. It is a condition precedent that must be complied with. (Sps. Sadang v. CA, G.R. No. 140138, 2006) Non-observance of the doctrine of exhaustion of administrative remedies would result in lack of cause of action, and consequently, the dismissal of the case. (Ejera v. Merto, 725 Phil. 180, 2014). Exhaustion of administrative remedies is a prerequisite for judicial review. It is a condition precedent which must be complied with. Before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are Page 326 of 479

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authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation (Professional Regulation Commission v. Alo, G.R. No. 214435, 2022). Applicability of the Doctrine2 EXERCISE OF QUASIJUDICIAL FUNCTION In case the subject of controversy is the validity or constitutionality of a rule or regulation issued by the administrative agency in the performance of its quasi-judicial function (or administrative adjudicatory power), the assailing party must exhaust administrative remedies before going to court. (Smart Communications v. NTC, G.R. No. 151908, 2003)

EXERCISE OF RULEMAKING POWER However, if the rule or regulation was issued pursuant to the administrative agency’s quasi-legislative (or rulemaking) function, a party need not exhaust administrative remedies. The determination of whether a specific rule or set of rules issued by an administrative agency contravenes the law or the constitution is within the jurisdiction of the regular courts. (Id.)

RATIONALE: (1) To enable the administrative superiors to correct the errors committed by their subordinates; (2) Courts should refrain from disturbing the findings of administrative bodies in deference to the doctrine of separation of powers; (3) Courts should not be saddled with the review of administrative cases; (4) Judicial review of administrative cases is usually done through special civil actions which are available only if there is no other plain, speedy and adequate remedy. (5) Availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies EXCEPTIONS: (DARNN JP LICD DRIED LPS VQU) (1) If it should appear that an irreparable Damage will be suffered by a party unless

resort to the court is immediately made. (2) When the respondent is the Alter ego of the President (3) When no administrative Review is provided as a condition precedent for court action (4) Where insistence on its observance would result in the Nullification of the claim asserted (5) When there was No decision rendered (6) When there are special circ*mstances demanding immediate Judicial intervention (7) When the administrative remedy is Permissive or concurrent (8) When the question raised is essentially and purely Legal (9) When strong public Interest is involved (10) Where the issue raised is the Constitutionality of the statute, rule or regulation (11) Where it is a civil action for Damages (12) Where the officer acted in utter disregard of Due process (13) When there is no other plain, speedy, adequate Remedy (14) When act complained of is patently Illegal amounting to lack or excess of jurisdiction (15) When the administrative body or the person invoking the doctrine is in Estoppel (16) When there is long-continued and unreasonable Delay (17) When the subject of controversy is private Land (18) When the controversy involves Possessory action involving public lands (19) When the claim involved is Small so that to require exhaustion would be oppressive and unreasonable (20) When there is a Violation of due process (21) In Quo warranto proceedings (22) When to require exhaustion of administrative remedies would be Unreasonable A case where the issue raised is a purely legal question, well within the competence and the jurisdiction of the court and not the administrative agency, would clearly constitute an exception. Resolving questions of law, which involve the interpretation and application of laws, constitutes essentially an exercise of judicial power that is exclusively allocated to the Supreme Court and such lower courts the Legislature may establish. (Ongsuco v. Malones, G.R. 182065, 2009)

Note: This rule also applies to the doctrine of primary administrative jurisdiction.

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The special civil actions against administrative officers should not be entertained if there are superior administrative officers who could grant relief. (Dimson v. Local Water Utilities Administration, G.R. 168656, 2010) The validity and the enforceability of the “Contract of Agreement” entered into by the parties are questions purely of law and clearly beyond the expertise of the Commission on Audit or the DPWH. (Vigilar v. Aquino, G.R. 180388, 2011) The rule on exhaustion of administrative remedies may be discarded when to require exhaustion of administrative remedies would be unreasonable, such as in cases when the Comelec En Banc already approved the award of the bid to MPC, without the BAC informing the bidders, thus depriving the bidders of their opportunity to avail of administrative remedies. (Information Technology Foundation of the Philippines v. COMELEC (citing Paat v. CA), G.R. No. 159139, 2004). Doctrine of Primary Jurisdiction v. Doctrine of Exhaustion of Administrative Remedies DOCTRINE OF DOCTRINE OF EXHAUSTION OF PRIMARY ADMINISTRATIVE JURISDICTION REMEDIES Though both concepts In contrast, exhaustion aim to maximize the of administrative special technical remedies requires knowledge of parties to exhaust all administrative agencies, the remedies in the the doctrine of primary administrative administrative machinery before jurisdiction requires resorting to judicial courts to not resolve or remedies. The doctrine determine a controversy of exhaustion involving a question presupposes that the which is within the court and the jurisdiction of an administrative agency administrative tribunal. have concurrent The issue is jurisdictional jurisdiction to take and the court, when cognizance of a confronted with a case matter. However, in under the jurisdiction of deference to the an administrative special and technical agency, has no option expertise of the but to dismiss it. administrative agency, (Provincial Bus courts must yield to the Operators Association of administrative agency the Philippines v. DOLE, by suspending the G.R. No. 202275, 2018) proceedings. As such, parties must exhaust all the remedies within the administrative

machinery before resort to courts is allowed. (Id.) EFFECT OF FAILURE TO OBSERVE EXHAUSTION OF ADMINISTRATIVE REMEDIES. However, failure to observe the doctrine of exhaustion of administrative remedies does not affect the court's jurisdiction. Thus, the doctrine may be waived as in Soto v. Jareno: Failure to observe the doctrine of exhaustion of administrative remedies does not affect the jurisdiction of the court. We have repeatedly stressed this in a long line of decisions. The only effect of non-compliance with this rule is that it will deprive the complainant of a cause of action, which is a ground for a motion to dismiss. If not invoked at the proper time, this ground is deemed waived and the court can then take cognizance of the case and try it. [Republic v. Felix, G.R. No. 203371, [June 30, 2020] citing Republic v. Gallo, GR No. 207074, 2018, J. LEONEN] WHEN THERE IS NO SPECIAL LAW, APPEAL TO OP Decisions of the various agencies of government have been appealed to the OP, consistent with the President's power of control over all the executive departments, bureaus, and offices. The doctrine of exhaustion of administrative remedies empowers the OP to review any determination or disposition of a department head. The doctrine allows, indeed requires, an administrative decision to first be appealed to the administrative superiors up to the highest level before it may be elevated to a court of justice for review. In Phillips Seafood (Philippines) Corporation v. Board of Investments, we recognized that under the Office of the President’s Administrative Order No. 18, a decision or order issued by a department or agency need not be appealed to the OP when there is a special law that provides for a different mode of appeal. R.A. No. 9295 does not provide for an appeal procedure; thus, the assailed decision and resolution from the MARINA should have been appealed with the OP. (Peñafrancia v. 168 Shipping, GR No. 188952, 2016) WHEN THERE IS A SPECIAL LAW, GO TO COURT (1) Did not resort to court as per special law. In the instant case, the enabling law of respondent BOI, E.O. No. 226, explicitly allows for immediate judicial relief from the decision of respondent BOI involving petitioner's application for an Income Tax Holiday (ITH). E.O. No. 226 is a law of special nature Page 328 of 479

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and should prevail over A.O. No. 18. (NOTE: Otherwise, filed out of time that will result to dismissal.) (Phillips Seafood (Philippines) Corp. v. Board of Investments, G.R. No. 175787, 2009) (2) Resorted to court as per special law. In this case, a special law, RA 7394, likewise expressly provided for immediate judicial relief from decisions of the DTI Secretary by filing a petition for certiorari with the "proper court." Hence, private respondent should have elevated the case directly to the CA through a petition for certiorari. In filing a petition for certiorari before the CA raising the issue of the OP's lack of jurisdiction, complainant Moran, Jr. thus availed of the proper remedy. (Moran v. OP, G.R. No. 192957, 2014) Modes of Judicial Review of Administrative Agencies Exercising Quasi-Judicial Power (1) Rule 43, Rules of Court (a) Scope. This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Invention Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. [Sec. 1, Rule 43, Rules of Court] (b) Cases Not Covered. This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. [Sec. 2, Rule 43, Rules of Court]

within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law. [Sec. 3, Rule 43, Rules of Court] (d) Period of Appeal. The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner's motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. [Sec. 4, Rule 43, Rules of Court] NOTE: Enumeration of quasi-judicial under Rule 43 is not exclusive; hence, appeal from the decisions of quasi-judicial bodies like the Professional Regulatory Commission and the Food and Drug Administration, even if not in the list, can be appealed to the CA via Rule 43. The fact that the FDA is not among the agencies enumerated in Rule 43 as subject of a petition for review to the CA is of no consequence. In CayaoLasam v. Ramolete, the Court disagreed with the opinion of the CA that the enumeration of the agencies mentioned in Section 1 of Rule 43 was exclusive. Thus: Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion from the coverage of said Rule. The Rule expressly provides that it should be applied to appeals from awards, judgments, final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The phrase "among these agencies" confirms that the enumeration made in the Rule is not exclusive to the agencies therein listed. [Alliance for the Family Foundation, Philippines, Inc. v. Garin, G.R. Nos. 217872 & 221866, August 24, 2016]

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(2) Rule 65, Rules of Court When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. [Sec. 1, Rule 65, Rules of Court] Special Notes on COMELEC, COA, and CSC (1) COMELEC and COA – Rule 64 via Rule 65 A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. [Sec. 1, Rule 64, Rules of Court citing Bar Matter No. 803, 17 February 1998] (2) CSC – via Rule 43; part of enumerated quasijudicial bodies. BUT: Why is COMELEC and COA under Rule 64 via Rule 65 while CSC is under Rule 43? (3) ART. IX-A, Sec. 7, 1987 CONSTITUTION Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (4) RA 7902 (Expanding the CA Jurisdiction) is the law that expressly provided that the Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including xxx the Civil Service Commission xxx. Thus, by special law, final judgments, decisions, resolutions, orders or awards of the CSC must be appealed to the CA; hence, CSC under Rule 43. Thus, the judicial review scenarios are as follows: Ordinary Appeal (Rule 43) (1) Quasi-Judicial Agency to CA – Rule 43 (Question of Fact or Question of Law or

Mixed Question of Fact and Question of Law) (2) Quasi-Judicial Agency to CA via Rule 43; then CA to SC via Rule 45 (3) Quasi-Judicial Agency to SC – Rule 45? – NO – Must go through CA even if only Question of Law. (4) CSC to CA – Rule 43 (Question of Fact or Question of Law or Mixed Question of Fact and Question of Law) Special Civil Action (Rule 65) (1) Quasi-Judicial Agency to CA – Rule 65 (quasi-judicial power + with grave abuse of discretion + WITH plain, adequate, speedy remedy, which is through CA) (2) Quasi-Judicial Agency to SC – Rule 65 (quasi-judicial power + with grave abuse of discretion + WITHOUT plain, adequate, speedy remedy; hence, direct resort to SC.) (3) COMELEC and COA to SC – Rule 64 via Rule 65 (Petition for Certiorari)

3. DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION General Rule: Decisions of administrative agencies must be final before Judicial Review. Courts should be reluctant to interfere with administrative action prior to its completion or finality. The reason being that absence of a final order or decision, the power of the administrative agency concerned has not been fully exercised and there can be no irreparable harm. (Paredes v. Court of Appeals, G.R. No. 113357, 1996). EXCEPTIONS: VIPE (1) Interlocutory orders (2) Protect Rights (3) When the administrative officer assumes to act in Violation of the constitution and other laws. (4) When the questioned order is made in Excess of power Once Administrative Action and Judgment is Final, it becomes immutable and unalterable, i.e. Res Judicata. Well-settled is the rule that a judgment that has acquired finality “becomes immutable and unalterable, and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and Page 330 of 479

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law, and whether it be made by the court that rendered it or by the Highest Court of the land.” Rationale: To avoid delay in the administration of justice and in order to put an end to judicial controversies. “The principle of immunity of judgment is grounded on fundamental considerations of public policy and sound practice, and that, at the risk of occasional errors, the judgment or orders of courts must become final at some definite time fixed by law; otherwise, there would be no end to litigations, thus setting to naught the main role of courts of justice which is to assist in the enforcement of the rule of law and the maintenance of peace and order by settling judiciable controversies with finality.” [Manotok Realty, Inc. v. CLT Realty Development Corp. G.R. No. 123346 and G.R. No. 134385, 2007] EXCEPTIONS: (CoNV-C) (1) Correction of clerical errors (2) The so-called Nunc pro tunc entries which cause no prejudice to any party (3) Void judgments (4) Whenever Circ*mstances transpire after the finality of the decision rendering its execution unjust and inequitable. [Spouses Navarra v. Liongson, G.R. No. 217930, 2016]

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III. ELECTION LAW TOPIC OUTLINE UNDER THE SYLLABUS A. SUFFRAGE 1. Qualification and disqualification of voters 2. Registration and deactivation 3. Inclusion and exclusion proceedings 4. Local and overseas absentee voting 5. Detainee voting B. CANDIDACY 1. Qualifications and disqualifications of candidates 2. Filing of certificates of candidacy a. Effect of filing b. Substitution and withdrawal of candidates c. Nuisance candidates d. Duties of the COMELEC C. CAMPAIGN 1. Premature campaigning 2. Prohibited contribution 3. Lawful and prohibited election propaganda 4. Limitations on expenses 5. Statement of contributions and expenses D. REMEDIES AND JURISDICTION 1. Petition not to give due course or cancel a certificate of candidacy 2. Petition for disqualification 3. Postpone an election 4. Failure of election, Call for Special Election 5. Pre-proclamation controversy 6. Election protest 7. Quo Warranto a. COMELEC b. Senate Electoral Tribunal (SET) c. House of Representatives Electoral Tribunal (HRET) 7. Recall E. PROSECUTION OF ELECTION OFFENSES [Exclude: Penal Provisions]

A. SUFFRAGE 1. QUALIFICATION AND DISQUALIFICATION OF VOTERS Constitutional Rules: (1) Qualifications and Requirements. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. (Phil Const., art. V, § 1) (2) Prohibited Requirements. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Phil Const., art. V, § 1) (3) Ballot Secrecy. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. (Phil Const., art. V, § 2) (4) Disabled And Illiterates. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot. (Phil Const., art. V, § 2) Any person, who, on the day of registration may not have reached the required age or period of residence but, who, on the day of the election shall possess such qualifications, may register as a voter. (Sec. 9, RA 8189) Qualifications (CD R2 18): (1) Citizen of the Philippines (2) Not Disqualified by law (3) Resident of the Philippines for at least 1 YEAR (4) Resident of the place wherein he proposes to vote for at least 6 months immediately preceding the election (5) At least 18 years old REMEMBER: No literacy, property, or other substantive requirement can be imposed on the exercise of suffrage. (Phil Const., art. V, § 1)

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Grounds for Disqualification to Register as Voter: (a) Any person who has been sentenced by final judgment to suffer imprisonment of not less than one (1) year (i.e. 1 year or more imprisonment), such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence; (b) Any person who has been adjudged by final judgment by a competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the firearms laws or any crime against national security, unless restored to his full civil and political rights in accordance with law: Provided, That he shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence; and (c) Insane or incompetent persons declared as such by competent authority unless subsequently declared by proper authority that such person is no longer insane or incompetent. (Sec. 11, RA 8189) NOTE: These qualifications are continuing requirements. Congress may not add qualifications but can provide for procedural requirements and disqualifications. However, the disqualifications must not amount to qualifications. Thus, the exercise of the right of suffrage, as in the enjoyment of all other rights, is subject to existing substantive and procedural requirements embodied in our Constitution, statute books and other repositories of law. As to the procedural limitation, the right of a citizen to vote is necessarily conditioned upon certain procedural requirements he must undergo: among others, the process of registration. (Akbayan Youth v. COMELEC, G.R. No. 147066, 2001) Dual Citizenship Law — Former natural-born Filipino citizens who acquired foreign citizenship through naturalization are deemed not to have lost their Philippine citizenship under conditions provided in this act. (Citizenship Retention and Reacquisition Act of 2003, § 2)

deemed citizens of the Philippines. (Citizenship Retention and Re-acquisition Act of 2003, § 4) Requirements for Naturalized Citizens: To vote — swear an oath of allegiance. To be elected to public office — renounce foreign citizenship. To be appointed to public office — swear an oath of allegiance to the Philippines and renounce foreign citizenship. (Citizenship Retention and Re-acquisition Act of 2003, § 3) Residence — One’s domicile or legal residence. It is where a party actually or constructively has his permanent home, or where he, no matter where he may be found, eventually intends to return and remain. (Romualdez-Marcos v. Commission on Elections, G.R. No. 119976) Residency Requirements: Domicile — This is in reference to the 1-year residency requirement in the Philippines. Elements: (VARP) (1) Physical presence in the country (2) Intention to Remain (3) Intention to Abandon the old domicile (4) It must be Voluntary, must concur. NOTE: All elements must concur. Temporary Residence — This is in reference to the 6-month residency requirement in the place where one wants to vote. In this case, residence can either mean domicile or temporary residence. To successfully effect a transfer of domicile, one must demonstrate: (a) An actual removal or change of domicile; (b) A bona fide intention of abandoning the former place of residence and establishing a new one; and (c) Acts which correspond with that purpose. There must be animus manendi coupled with animus non revertendi. (Asistio v. Canlas, G.R. No. 191124, Apr. 27, 2010)

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2. REGISTRATION AND DEACTIVATION Registration It does not confer the right to vote; it is just a condition precedent to the exercise of the right.

Validation It is the process of taking the biometrics of registered voters whose biometrics have not yet been captured. It shall be conducted by the City or Municipal Election Officer. (R.A. No. 10367, § 2)

It is the act of accomplishing and filing of a sworn application for the registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board (ERB). (R.A. No. 8189, § 3.)

System of Continuing Registration of Voters The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. (Sec. 8, RA 8189)

No Bio-No Boto Policy Biometrics – refers to a quantitative analysis that provides a positive identification of an individual such as voice, photograph, fingerprint, signature, iris, and/or such other identifiable features. (R.A. No. 10367s, § 2(b))

REMEMBER: Registration can be done by voters daily anytime during office hours EXCEPT 120 days before a regular election and 90 days before a special election.

The biometrics registration requirement is not a "qualification" to the exercise of the right of suffrage, but a mere aspect of the registration procedure, of which the State has the right to reasonably regulate. Unless it is shown that a registration requirement rises to the level of a literacy, property or other substantive requirement as contemplated by the Framers of the Constitution—that is, one which propagates a socioeconomic standard which is bereft of any rational basis to a person's ability to intelligently cast his vote and to further the public good—the same cannot be struck down as unconstitutional. (Kabataan Partylist vs. COMELEC, G.R. No. 221318, Dec. 16, 2015) The public has been sufficiently apprised of the implementation of RA 10367, and its penalty of deactivation in case of failure to comply. Thus, there was no violation of procedural due process. (Kabataan Partylist vs. COMELEC, G.R. No. 221318) However, the power of COMELEC to restrict a citizen's right of suffrage should not be arbitrarily exercised. (Timbol vs. COMELEC, G.R. No. 206004, Feb. 24, 2015) Who shall submit for biometrics registration? (1) New Voters — COMELEC shall implement a mandatory biometrics registration system (2) Registered voters whose biometrics have not been captured. (R.A. No. 10367)

When is registration not allowed: (1) 120 days before regular election (2) 90 days before special election. (R.A. No. 8189, §8) Disqualifications to Register as Voter: Same grounds for disqualifications for suffrage: (1) Sentenced by final judgment to imprisonment of at least 1 year (2) Conviction by final judgment of any of the following crimes: (a) crime involving disloyalty to the government (i.e. rebellion, sedition) (b) firearms law (c) crimes against national security (3) Insanity or incompetence declared by competent court. (OEC, § 118) Registration of Illiterates/Persons With Disabilities Illiterate or PWD voters may register with the assistance of the Election Officer or any member of an accredited citizen’s arms; application for registration may be prepared by any relative within the fourth (4th) civil degree of consanguinity or affinity or by the Election Officer or any member of an accredited citizen’s arms using the data supplied by the applicant. (R.A. No. 8189, § 14) NOTE: Each precinct shall have no more than 200 voters and shall comprise contiguous and compact territories except when precincts are clustered. NOTE: No Election Officer shall hold office in a particular city/municipality for more than 4 years. COMELEC has the authority to effect transfer. Page 335 of 479

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Can COMELEC change the registration period by resolution? No. Both R.A. No. 6646, Section 29 and R.A. No. 8436, Section 28 grant the COMELEC the power to fix other periods and dates for pre-election activities only if the same cannot be reasonably held within the period provided by law. This grant of power, however, is for the purpose of enabling the people to exercise the right of suffrage – the common underlying policy of RA 8189, RA 6646 and RA 8436. Thus, the Court found no ground to hold that the mandate of continuing voter registration cannot be reasonably held within the period provided by RA 8189, Sec. 8 – daily during office hours, except during the period starting 120 days before the May 10, 2010 regular elections. There is thus no occasion for the COMELEC to exercise its power to fix other dates or deadlines therefor. (Palatino v. COMELEC, G.R. No. 189868, 2009) List of Voters It refers to an enumeration of names of registered voters in a precinct duly certified by the Election Registration Board for use in the election. (R.A. No 8189) Book of voters Classified as permanent whereby each precinct shall have a permanent list of all registered voters residing within the territorial jurisdiction of that precinct. (R.A. No. 8189, §3) Alteration of Book Of Voters: (DECANT) (1) Deactivation/Reactivation (2) Exclusion/Inclusion (3) Cancellation of registration in case of death (4) Annulment of book of voters (5) New voters (6) Transfer of residence Annulment of book of voters — A voter, election officer, or duly registered political party may file a verified petition for the annulment of a book of voters with the COMELEC. Last day for filing is within 90 days before an election. (OEC, §145) Grounds for Annulment of Book of Voters (S2NF3I2B): (1) Not prepared in accordance with law (2) Prepared through: • Fraud • Forgery • Force • Intimidation • Impersonation

• • •

Bribery Similar irregularity Contains data that are Statistically improbable (R.A. No. 8189, §39)

Grounds for Deactivation of Voter Registration Deactivation — It is the removal of the registration records of certain persons from the corresponding precinct book of voters and placing the same in the inactive file, properly marked “deactivated” and dated in indelible ink, after entering the cause of deactivation. (R.A. No. 8189, §27) The board shall deactivate the registration and remove the registration records of the following persons from the corresponding precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause or causes of deactivation: (a) Any person who has been sentenced by final judgment to suffer imprisonment for not less than one (1) year, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence as certified by the clerks of courts of the Municipal/Municipal Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan; (b) Any person who has been adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the antisubversion and firearms laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law; Provided, That he shall regain his right to vote automatically upon expiration of five (5) years after service of sentence; (c)

Any person declared by competent authority to be insane or incompetent unless such disqualification has been subsequently removed by a declaration of a proper authority that such person is no longer insane or incompetent;

(d) Any person who did not vote in the two (2) successive preceding regular elections as shown by their voting records. For this purpose, Page 336 of 479

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POLITICAL LAW & PUBLIC INTERNATIONAL LAW the

(e) Any person whose registration has been ordered excluded by the Court; and (f) Any person who has lost his Filipino citizenship; (R.A. 8189, §27) (g) Voters who fail to submit for [Biometrics] validation on or before the last day of filing of application for registration shall be deactivated pursuant to the Biometrics Registration Act (R.A. 10367, §7). Grounds for Deactivation: (IDI-L2EB) (1) Convicted by final judgment to suffer Imprisonment of not less than 1 year; (2) Disloyalty; (3) Insanity; (4) Loss of citizenship; (5) Failed to vote for 2 successive preceding regular elections; (6) Registration was ordered Excluded by the court; and (7) Failure to submit Biometrics validation. Reactivation of Voter Registration (STERN): (1) Voter whose registration has been deactivated may file with the Election Officer a Sworn application for reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation no longer exist; (2) Any Time but not later than 120 days before a regular election and 90 days before a special election; (3) Election officer shall submit said application to the ERB for appropriate action; (4) In case the application is approved, the Election officer shall Retrieve the registration record from the inactive file and include the same in the corresponding precinct book of voters; (5) Local heads or representatives of political parties shall be properly Notified on approved applications. (R.A. No. 8189) NOTE: Reactivation procedure here also applies to those deactivated for non-validation under RA 10367. Rules on Transfer of Voter Registration (1) Any registered voter who has transferred residence to another city or municipality may apply with the Election Officer of his

new residence for the transfer of his registration records. (2) The application for transfer of registration shall be subject to the requirements of notice and hearing and the approval of the Election Registration Board, in accordance with this Act. (3) Upon approval of the application for transfer, and after notice of such approval to the Election Officer of the former residence of the voter, said Election Officer shall transmit by registered mail the voter’s registration record to the Election Officer of the voter’s new residence. [Sec. 12, RA 8189] (4) Any person who temporarily resides in another city, municipality or country solely by reason of his occupation, profession, employment in private or public service, educational activities, work in the military or naval reservations within the Philippines, service in the Armed Forces of the Philippines, the National Police Forces, or confinement or detention in government institutions in accordance with law, shall not be deemed to have lost his original residence. [Sec. 9, RA 8189] Post-Approval Remedies: (IAE) (a) Petition for Inclusion, (b) Annulment of Book of Voters, and (c) Petition for Exclusion (OEC, §139, 142, 145)

3. INCLUSION AND EXCLUSION PROCEEDINGS Jurisdiction Over All Cases of Inclusion and Exclusion of Voters (1) The Municipal and Metropolitan Trial Courts shall have original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective cities or municipalities. (2) Decisions of the Municipal or Metropolitan Trial Courts may be appealed by the aggrieved party to the Regional Trial Court within five (5) days from receipt of notice thereof. Otherwise, said decision shall become final and executory. (3) The regional trial court shall decide the appeal within ten (10) days from the time it is received, and the decision shall immediately become final and executory. No motion for reconsideration shall be entertained. (R.A. 8189, §33) Page 337 of 479

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BAR OPERATIONS 2023 Inclusion and exclusion cases INCLUSION CASES

EXCLUSION CASES

May be filed any time, except 105 days before regular elections or 75 days before special elections Grounds: 1. Application for registration has been disapproved by the board 2. Name has been stricken out

May be filed any time, except 100 days before regular elections or 65 days before special elections Grounds: Not qualified or possessing disqualification Flying voters Ghost voters Requires a sworn petition

4. LOCAL AND OVERSEAS ABSENTEE VOTING Overseas Voter refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. (R.A. 9189, §3(j) - as amended by RA 10590) Overseas Voting refers to the process by which qualified citizens of the Philippines abroad exercise their right to vote. (R.A. 9189, §3(k) - as amended by RA 10590) Qualifications All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for President, Vice-President, Senators and Party-List Representatives, as well as in all national referenda and plebiscites. (R.A. 9189, §4 (as amended by RA 10590)) Disqualifications The following shall be disqualified from registering and voting under this Act: (a) Those who have lost their Filipino citizenship in accordance with Philippine laws; (b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country, except those who have reacquired or retained their Philippine citizenship under Republic Act No. 9225, otherwise known as

the ‘Citizenship Retention Reacquisition Act of 2003’;

and

(c) Those who have committed and are convicted in a final judgment by a Philippine court or tribunal of an offense punishable by imprisonment of not less than one (1) year, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon the expiration of five (5) years after service of sentence; and (d) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. (R.A. 9189, §5 (as amended by RA 10590)) NOTE: Under RA 10590, an overseas voter is no longer required to execute an affidavit of intent to resume actual physical permanent residence in the Philippines that was previously required by RA 9189. Act vs. Effect ACT

EFFECT

Failure to undertake affidavit

Removal of name from the list and permanent disqualification Imprisonment of not less than 1 year Removal of name from list

Failure to undertake affidavit yet voted Failure to resume residency Failure to resume residency yet voted

Imprisonment of not less than 1 year

POLLING PLACE: WHERE TO VOTE GENERAL RULE: Voter must vote at the polling place where registered. EXCEPTIONS: (1) Board of Election Inspectors. Members of the board of election inspectors and their substitutes may vote in the polling place where they are assigned on election day: Provided, That they are registered voters within the Page 338 of 479

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province, city or municipality where they are assigned: and Provided, finally, That their voting in the polling places where they are not registered voters be noted in the minutes of the board of election inspectors. (OEC, §169) (2) Government Employees and Officials. Any person who by reason of public functions and duties, is not in his/her place of registration on election day, may vote in the city/municipality where he/she is assigned on election day: Provided, That he/she is a duly registered voter. (EO 157 s.1987, §1) (3) Members of the Media. The Commission on Elections shall extend the right to vote under the local absentee voting system provided under existing laws and executive orders to members of media, media practitioners, including the technical and support staff, who are duly registered voters and who, on election day, may not be able to vote due to the performance of their functions in covering and reporting on the elections: Provided, That they shall be allowed to vote only for the positions of President, Vice President, Senators and Party-List Representative. (RA 10380, §2) (4) Overseas Voter. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for President, VicePresident, Senators and Party-List Representatives, as well as in all national referenda and plebiscites. (R.A. 9189, §4 (as amended by R.A. 10590, §3)) (5) Detainee Voter. Detainee voting (either through the special polling place inside jails or escorted voting) may be availed of by any registered detainee whose registration record is not transferred / deactivated / cancelled / deleted. Vote in Absentia Every qualified Filipino citizen abroad previously registered as a voter may file with an embassy, consulate or other foreign service establishment an application to vote in absentia. (Sec. 11.1, R.A. No. 9189, §11.1) The application may be filed personally or by mail (R.A. No. 9189, §11.2) The application shall be transmitted to COMELEC (R.A. No. 9189, §11.1)

(a) COMELEC shall act on the application not later than 150 days before election day. (b) In case of disapproval of the application, the voter or his authorized representative may file a motion for reconsideration personally or by registered mail within 10 days from receipt of notice. (c) The decision of COMELEC is final. (R.A. No. 9189, §12) Is Voting by Mail allowed? Yes, but only for qualified overseas absentee voters or voting in absentia. (1) For the May 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions: (a) Where the mailing system is fairly welldeveloped and secure to prevent occasion for fraud; (b) Where there exists a technically established identification system that would preclude multiple or proxy voting; and, (c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and wellsecured. Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee. (Sec. 17.1, RA 9189) (2) The overseas absentee voter shall send his/her accomplished ballot to the corresponding embassy, consular or foreign service establishment that has jurisdiction over the country where he/she temporarily resides. He/she shall be entitled to cast his/her ballot at any time upon his/her receipt thereof, provided that the same is received before the close of voting on the day of elections. The overseas absentee voter shall be instructed that his/her ballot shall not be counted if not transmitted in the special envelope furnished him/her. (Sec. 17.2, RA 9189) (3) Only mailed ballots received by the Philippine embassy, consulate and other foreign service establishments before the Page 339 of 479

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close of voting on the day of elections shall be counted in accordance with Section 18 hereof. All envelopes containing the ballots received by the embassies, consulates and other foreign service establishments after the prescribed period shall not be opened, and shall be cancelled and disposed of appropriately, with a corresponding report thereon submitted to the Commission not later than thirty (30) days from the day of elections. (Sec. 17.3, RA 9189)

5. DETAINEE VOTING Detainee A detainee is any person: (1) Confined in jail, (a) formally charged for any crime/s and (b) awaiting/undergoing trial; or (2) Serving a sentence of imprisonment for less than one (1) year; or (3) Whose conviction of a crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the firearms laws or any crime against national security or for any other crime is on appeal (Sec. 2(a), COMELEC Resolution No. 9371 s.2012, §2(a)) Escorted Voting This is a voting mechanism for: (1) Detainee voters who are residents/ registered voters of municipalities/cities other than the town/city of incarceration; and/or (2) Detainee voters in jail facilities where no special polling places are established. (COMELEC Resolution No. 9371 s.2012, §2(a)) NOTE: The pertinent provisions of COMELEC Resolution No. 9149, promulgated on February 22, 2011 and other Resolutions as far as the registration period, qualifications and disqualifications of applicants for registration, the procedures for filing, processing and hearing of applications, and notices and publication requirements are adopted. (COMELEC Resolution No. 9371) Reckoning Period of Age and Residence Detainees. Those who shall be eighteen years of age on the day of election and/or are committed inside the detention centers for at least six (6) months immediately preceding the election day may be registered as a voter. (COMELEC Resolution No. 9371)

Detainees who are already registered voters may apply for transfer of registration records as warranted by the circ*mstances. Detainee Voting for National Positions Only In the case of Aguinaldo v. New Bilibid Prison, G.R. No. 221201, April 19, 2016, the Supreme Court issued a Temporary Restraining Order enjoining the COMELEC from enforcing COMELEC Resolution No. 9371 on the local level. This means that detainee voters may only vote for the national positions. Pursuant to this, the COMELEC issued COMELEC Resolution No. 10112, amending Resolution No. 10057. This provides that: The Board of Election Inspector (BEI) shall instruct the DV, in clear terms, that pursuant to the TRO, he or she can only vote for national candidates namely, candidates for Pres., VP, Senators and Party-lists. All ballots that contain votes for local positions shall be separated and transmitted to COMELEC Manila in a sealed envelope. The votes appearing in said ballots for national positions, if any, shall be counted. A Special Board of Election Inspectors for counting shall be established for the purpose. Election Automation Law (R.A. No. 8436 as amended by R.A. No. 9369) THE AUTOMATED ELECTION SYSTEM (AES) A system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election results, and other electoral processes. (R.A. No. 9369, §2) The Automated Election System involves voting, counting, consolidating, canvassing, and transmission but not proclamation. (R.A. No. 9369) Electronic Transmission v. Electronic Returns ELECTRONIC TRANMISSION

ELECTRONIC RETURNS

Conveying data in electronic form from one location to another

A document in electronic and printed form directly produced by counting or voting machine, showing the: • Date of election Page 340 of 479

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•

The province, municipality and the precinct in which it is held Votes in figures for each candidate in a precinct where AES is utilized

Paper-Based Election System v. Direct Record Election System DIRECT RECORD PAPER-BASED ELECTRONIC ELECTION SYSTEM ELECTION SYSTEM A type of automated A type of automated election system that uses election system that paper ballots, records uses electronic ballots and counts votes, records votes by means tabulates, consolidates/ of a ballot display canvasses and transmits provided with electronically the results mechanical or electroof the vote count. optical components that can be activated by the voter, processes data by means of a computer program, records voting data and ballot images, and transmits voting results electronically The Commission on Elections may use either a paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises. (R.A. No. 9369, §6) Source Code Human readable instruction that defines what the computer equipment will do. (R.A. No. 9369, §2) Random Manual Audit Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the Commission in each province and city. (R.A. No. 9369, §24) Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error. (R.A. No. 9369, §29) The COMELEC may conduct automated election even if there is no pilot testing. (Information

Technology Foundation of the Philippines v. COMELEC, G.R. No. 159139) The Voter Verification Paper Audit Trail (VVPAT) functionality is in the form of a printed receipt and a touch screen reflecting the votes in the votecounting machine. (Bagumbayan-VNP Movement, Inc. v. COMELEC, G.R. No. 222731) The VVPAT ensures that the candidates selected by the voter in his or her ballot are the candidates voted upon and recorded by the vote-counting machine. (Bagumbayan-VNP Movement, Inc. v. COMELEC, G.R. No. 222731) The voter himself or herself verifies the accuracy of the vote. In instances of Random Manual Audit and election protests, the VVPAT becomes the best source of raw data for votes. (Bagumbayan-VNP Movement, Inc. v. COMELEC, G.R. No. 222731) COMELEC Supervision and Control over the Conduct of Automated Elections The power and duty of the COMELEC to administer election laws and to have control and supervision over the automated elections is not incompatible with the decision to subcontract services that may be better performed by those who are well-equipped to handle complex technological matters with respect to the implementation of the AES. The subcontractor cannot act independently of the COMELEC. (Roque v. COMELEC, GR No. 188456)

B. CANDIDACY 1. QUALIFICATIONS AND DISQUALIFICATIONS OF CANDIDATES Qualifications IN GENERAL: The 1987 Philippine Constitution prescribes the qualifications (i.e., age, citizenship, residency, voter registration and literacy) for the following positions: President, Vice-President, Senators and Representatives (District and Party List) while statutes set the qualifications of local officials: (1) Residence — to be understood as domicile that is, the place where a party actually or constructively has his permanent home, where he/ she, no matter where he/she may be found at any given time, eventually intends to return and remain (Japson v. COMELEC, G.R. No. 180088) Page 341 of 479

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(2) Registered Voter (3) Citizenship • For national elective positions, the candidate must be a natural – born citizen. For local elective positions, the candidate may be naturalized citizen. •

Natural – born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country can seek elective office provided they acquire Philippine citizenship by taking the oath of allegiance to the Republic prescribed under the Citizenship Retention and Re – acquisition Act of 2003, and make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. Use of Foreign Passport: The use of a foreign passport amounts to repudiation or recantation of the oath of renunciation. Matters dealing with qualifications for public elective office must be strictly complied with. A candidate cannot simply be allowed to correct the deficiency in his qualification by submitting another oath of renunciation. (Arnado v. COMELEC, G.R. No. 210164)

• Dual Citizens: Dual citizens are disqualified

from running for any elective local position. They cannot successfully run and assume office because their ineligibility is inherent in them, existing prior to the filing of their certificates of candidacy. Their certificates of candidacy are void ab initio, and votes cast for them will be disregarded. Consequently, whoever garners the next highest number of votes among the eligible candidates is the person legally entitled to the position (Arlene Llena Empaynado v. COMELEC, G.R. No. 216607)

• Foundlings: As a matter of law, foundlings

are as a class, natural-born citizens (PoeLlamanzares v. COMELEC, G.R. No. 221697). When the names of the parents of a foundling cannot be discovered despite a diligent search, but sufficient evidence is presented to sustain a reasonable inference that satisfies the quantum of proof required to conclude that at least one or both of his or her parents is Filipino, then this should be sufficient to establish that he or she is a natural-born citizen. (David v. Senate Electoral Tribunal, G.R. No. 221538)

Under Republic Act 11767, or the Foundling Recognition and Protection Act, an abandoned child found in the Philippines or in Philippine embassies, consulates and territories abroad are presumed naturalborn citizens of the Philippines and therefore, are accorded the same rights as Filipino citizens from the moment of their birth. NOTE: Congress may not add to the qualifications for elective officials provided in the Constitution. However, they may do so for elective officials not provided in the Constitution. (Pimentel, Jr. v. COMELEC, G.R. No. 161658) SPECIFICALLY: (1) PRESIDENT & VICE PRESIDENT(Secs. 2 & 3, Art. VII, 1987 Constitution) No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election. There shall be a Vice-President who shall have same qualifications and term of office and elected with and in the same manner as President. He may be removed from office in same manner as the President.

the be the the

(2) SENATOR AND HOR MEMBER (Secs. 3 & 6, Art. VI, 1987 Constitution) No person shall be a Senator unless he is a naturalborn citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. (3) PARTY-LIST (Sec. 9, RA 7941) Qualification of Party-List Nominees. – No person shall be nominated as party-list Page 342 of 479

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representative unless he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.

age on election day (as amended by Sec. 10, RA 10742). [Sec. 39, LGC] Disqualifications Basis Disqualification Constitution Three - term limit for local elective officials (PHIL CONST., art. X, §8) The term limit rule is not a ground for a petition for disqualification, however, it is an ineligibility which is a proper ground for a petition to deny due course to or to cancel a Certificate of Candidacy under Section 78 of the OEC. (Albania v. COMELEC, G.R. No. 226792)

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty during his term shall be allowed to continue until the expiration of his term."

Two conditions must concur for the application of the disqualification of a candidate based on violation of the three - term limit rule, which are: (1) that the official concerned has been elected for three consecutive terms in the same local government post, and (2) that he has fully served three consecutive terms. (Albania v. COMELEC, G.R. No. 226792)

(4) LOCAL ELECTIVE OFFICALS (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (b) Candidates for the position of governor, vice-governor, or member of the sangguniang panlalawigan, or mayor, vicemayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. (c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. (d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on election day. (e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. (f) Candidates for the sangguniang kabataan must be at least eighteen (18) years of age but not more than twenty-four (24) years of

Omnibus Election Code

When it was only upon the favorable decision on his petition for correction of manifest error that a candidate was proclaimed as the duly-elected official, he is deemed not to have served office for the full term of three years to which he was supposedly entitled, since he only assumed the post and served the unexpired term of his opponent. (Albania v. COMELEC, G.R. No. 226792) Any person declared by competent authority insane or incompetent Any person sentenced by final judgment for any of the following offenses: • Insurrection, or rebellion • Offense for which he was sentenced to penalty of more than 18 months • Crime involving moral turpitude (OEC, §12.) A permanent resident to or immigrant to foreign country unless he waives such status. (OEC, §68) Page 343 of 479

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Those sentenced by final judgment for an offense involving moral turpitude or an offense punishable by imprisonment for at least one year, within 2 years after service of sentence. Those removed from office as a result of an administrative case. Those convicted by final judgment for violating his oath of allegiance to the Republic. Those with dual citizenship. Fugitives from justice in criminal or non-political cases. Permanent residents in foreign country or those who have the right to reside abroad and continue to avail of it (Caasi v. Court of Appeals, G.R. No. 88831) The insane or feeble - minded (Local Government Code, §40)

Disqualifications (1) Local Government Code (RA 7160) The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or nonpolitical cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. [Sec. 40, LGC] (2) Omnibus Election Code (a) Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving

moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. (b) Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code (e.g. Ejercito v. COMELEC); (d) solicited, received or made any contribution prohibited under Sections 89 (i.e. transportation, food, drinks), 95 (prohibited contributions), 96 (foreign sources), 97 (prohibited fund raising) and 104 (prohibited donations); or (e) violated any of Sections 80 (outside campaign period BUT not anymore because of RA 9369 and Penera), 83 (destroying lawful election propaganda), 85 (prohibited election propaganda subject to RA 9006), 86 (mass media subject to RA 9006) and 261, paragraphs d (coercion of subordinates), e (terrorism, etc.), k (unlawful electioneering), v (public funds), and cc, sub-paragraph 6 (unlawful electioneering – candidacy and campaign), shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

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(c) Sec. 69. Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circ*mstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. NOTE: Not considered as a candidate at all because of the COC cancellation. (d) Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 (i.e. on eligibility and qualifications) hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. NOTE: Not considered as a candidate at all because of the COC cancellation. (e) Disqualification in Special Elections In addition to the disqualifications mentioned in Sections 12 and 68 of the Omnibus Election Code and Section 40 of Republic Act No. 7160, otherwise known as the Local Government Code, whenever the evidence of guilt is strong, the following persons are disqualified to run in a special election called to fill the vacancy in an elective office, to wit: (i)

(ii)

Any elective official who has resigned from his office by accepting an appointive office or for whatever reason which he previously occupied but has caused to become vacant due to his resignation; and Any person who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates or actually causes, inflicts

or produces any violence, injury, punishment, torture, damage, loss or disadvantage to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor or property that is meant to eliminate all other potential candidate. NOTE: Per Sec. 5, RA 8295, this also constitutes as an election offense that shall be prosecuted and penalized under Sec. 264 of the OEC.) [Sec. 4, RA 8295]

2. FILING OF CERTIFICATES OF CANDIDACY Certificate of Candidacy A statement of a person seeking to run for a public office certifying that he announces his candidacy for the office, the name of the political party to which he belongs if he belongs to any, and his post office address for all election purposes being stated. (Sinaca v. Mula, G.R. No. 135691) No person shall be elected into public office unless he files his COC within the prescribed period. (OEC, §68) The COC shall be filed by the candidate personally or by his duly authorized representative. No COC shall be accepted if filed by mail telegram or facsimile. Upon filing, an individual becomes a candidate. Thus, he is already covered by rules, restrictions and processes involving candidates. The receiving officers shall have the ministerial duty to receive and acknowledge receipt of the COC. There is no law or case law stating that a COC will be cancelled even if it failed to specify the position sought if the information omitted is supplied in the certificate of nomination and amended COC. Only those enumerated in Section 74 of the Omnibus Election Code such as material misrepresentation can be a ground for cancellation. (Engle v. Commission on Elections, G.R. No. 215995) Prohibition against multiple candidacies No person shall be eligible for more than one office. If he files more than 1 position, he shall not be eligible for all unless he cancels all and retains one. (OEC, §73)

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a. Effect of Filing Effect of Filing COC Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (R.A. 9369, §13, (amending R.A. 8436, §11) On Public APPOINTIVE Officials. Any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or controlled corporations are considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. Said appointed officials would have unfair advantage over their rivals because they might use their office resources for their campaign. (Quinto v. COMELEC, G.R. No. 189698) On Public ELECTIVE Officials. Elective officials continue to hold office, whether they run for the same or different position. (Fariñas v. Executive Secretary, GR No. 147387) Unlawful Acts as Candidates Take Effect Only Upon Start of the Campaign Period. It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is especially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful. In layman’s language, this means that a candidate is liable for an election offense only for

acts done during the campaign period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. (Peñera vs. COMELEC, G.R. No. 181613) Who is a candidate? A “candidate” refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself (herself) or through an accredited political party, aggroupment, or coalition of parties. (OEC, §79(a)) A candidate is “any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.” Thus, under the law, a person only becomes a candidate when he/ she has filed a certificate of candidacy and when the campaign period has commenced. One is not a candidate, despite having filed a certificate of candidacy, before the start of the campaign period. The law added, “unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period.” (R.A. No. 9369, §15) If the certificate of candidacy is void ab initio, the candidate is not considered a candidate from the very beginning even if his certificate of candidacy was cancelled after the elections. (H. Sohria Pasagi Diambrang v. COMELEC, G.R. No. 201809) Independent Candidates: (1) Not a member of a registered political party. (2) Member of an unregistered political party. (3) Member of a registered political party but not officially nominated as candidate by said party. (4) Nominated by a person who is not the duly authorized representative of a registered political party. (5) Nominated by a registered political party but such was not submitted to the COMELEC or where such nomination was submitted after the last day of filing of the certificate of candidacy. (6) Nominated by a party that nominated in excess of the number of persons to be voted for an election position. (7) Accepted nominations from more than one registered political party.

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b. Substitution and Withdrawal of Candidates Grounds for Substitution of Candidates: (DWD) (1) Death (2) Withdrawal (3) Disqualification (OEC, §77) Substitution and COC Cancellation (1) Talaga v. COMELEC (2012). COMELEC cancelled COC because of 3-term limit.– substitution NOT allowed. Considering that a cancelled CoC does not give rise to a valid candidacy, there can be no valid substitution of the candidate under Sec. 77 of the OEC. It should be clear, too, that a candidate who does not file a valid CoC may not be validly substituted, because a person without a valid CoC is not considered a candidate in much the same way as any person who has not filed a CoC is not at all a candidate. (2) Tagolino v. HRET (2013). Cancellation of COC for Ineligibility – No substitution. It carries with it the denial of due course to and/or cancellation of [Richard Gomez’s] CoC pursuant to Section 78 (hence, Lucy Torres not allowed to substitute) because of ineligibility due to lack of residency. (3) Cerafica v. COMELEC (2014). Valid withdrawal even if ineligible because of lack of age – substitution allowed. REMEMBER: a) Ministerial Receipt of COC. In Cipriano v. Comelec, we ruled that the Comelec has no discretion to give or not to give due course to COCs (COMELEC cannot cancel on its own). We emphasized that the duty of the Comelec to give due course to COCs filed in due form is ministerial in character, and that while the Comelec may look into patent defects in the COCs, it may not go into matters not appearing on their face. The question of eligibility or ineligibility of a candidate is thus beyond the usual and proper cognizance of the Comelec. B) Valid Withdrawal if Within Allowed Period and No Cancellation. If the death, withdrawal or disqualification should occur between the day before the election and midday of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is candidate or, in case of candidates to be voted for by the entire electorate of the country, with the Commission. Under the express provision of Sec. 77 of B. P. Blg. 881, not just any person, but only "an official candidate of a registered or accredited political party" may be substituted. In the case at bar, Kimberly was an official nominee of the Liberal Party; thus, she can be validly substituted. xxx xxx First, there

was a valid withdrawal of Kimberly’s COC after the last day for the filing of COCs; second, Olivia belongs to and is certified to by the same political party to which Kimberly belongs; and third, Olivia filed her COC not later than mid-day of election day. In Luna v. Comelec, where the candidate, who was also under age, withdrew his COC before election day and was substituted by a qualified candidate, we declared that such substitution was valid.

Substitution is not allowed when the original candidate was disqualified based on: • Ground of material misrepresentation (Fermin v. COMELEC G.R. No. 179695) • When the certificate was cancelled because he was running for the fourth consecutive term (Miranda v. Abaya, G.R. No. 136351) • Failure to meet one-year residency requirement (Tagolino v. HRET, G.R. No. 202202) NOTE: In the case of Tagolino v. HRET (G.R. No. 202202), the COMELEC first ruled that substitution is allowed because it held that a candidate’s failure to meet the qualifications is a ground for disqualification. This was adopted by the HRET. However, the Supreme Court ruled that it is actually a cancellation of the certificate of candidacy. Thus, no substitution is allowed. General Rule: No substitution is allowed for an independent candidate. Only candidates who are members of and are nominated by a party can be substituted. Exception: A candidate for a barangay elective office notwithstanding the policy that barangay elections are nonpartisan can be substituted by his/her spouse. (Rulloda v. COMELEC, G.R. No. 154198) Rules on Substitution: (1) Any candidate may withdraw his candidacy any time before election day. (2) A person without a valid certificate of candidacy cannot be considered a candidate and therefore cannot be substituted. (3) Substitute candidate may file his certificate of candidacy no later than mid-day of election day. (4) No person who has withdrawn his candidacy for a position shall be eligible as a substitute candidate for any other position. (5) The substitute candidate must be qualified to hold office and must be a member of and nominated by the same political party. (6) A public office is personal to the public officer and not a property transmissible to the heirs Page 347 of 479

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upon death. The Court has allowed substitution and intervention but only by a real party in interest. The Protestant’s widow is not a real party in interest to the election protest. (Poe v. Arroyo, PET Case No. 002, 2005) (7) The filing of the withdrawal shall not affect the civil, criminal or administrative liabilities the substituted candidate may have already incurred. (8) A candidate who is disqualified under Section 68 of the Omnibus Election Code can be validly substituted pursuant to Section 77 because he remains a candidate until disqualified; but a person whose certificate of candidacy has been denied due course to and/or cancelled under Section 78 cannot be substituted because he is not considered a candidate. (Tagolino v. HRET, G.R. No. 202202) Withdrawal of Candidates Nothing in Section 73 of B.P. No. 881 mandates that the affidavit of withdrawal must be filed with the same office where the certificate of candidacy to be withdrawn was filed. Thus, it can be filed directly with the main office of the COMELEC, the office of the regional election director concerned, the office of the provincial election supervisor of the province to which the municipality involved belongs, or the office of the municipal election officer of the said municipality (Go v. COMELEC, G.R. No. 147741)

c. Nuisance Candidates Factors to Consider: (CROP5-PIPES-IQ) (1) Capability to wage nationwide campaign (2) Running under a slate (3) Organization and machinery (4) Performance in previous elections (5) Platform of government (6) Political party affiliation and support (7) Popularity (8) Properties (9) Political exposure (10) Intention to run for office (11) Profession (12) Educational attainment (13) Similarity in name causes confusion (14) Income (15) Qualifications and disqualifications COMELEC cannot motu proprio deny due course to or cancel an alleged nuisance candidate’s certificate of candidacy without providing the candidate his opportunity to be heard. (Timbol vs. COMELEC, G.R. No. 206004)

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Pamatong v. COMELEC (2014). COMELEC must DETERMINE through factual determination and NOT JUST DECLARE a nuisance candidate. It deserves not a cursory treatment but a hearing which conforms to the requirements of due process. Dela Cruz v. COMELEC (2012). Votes cast for a nuisance candidate declared as such by final judgment before the elections should not be considered as stray votes, but should be counted in favor of legitimate and bona fide candidate with the same surname. NOTE: A petition to cancel or deny a COC under Section 69 of the OEC (for Nuisance Candidates) should be distinguished from a petition to disqualify under Section 68 (DQ for election offenses). Hence, the legal effect of such cancellation of a COC of a nuisance candidate cannot be equated with a candidate disqualified on grounds provided in the OEC and Local Government Code. Marquez v. COMELEC (2019). The COMELEC committed grave abuse of discretion in declaring Marquez a nuisance candidate on the ground of failure to prove financial capacity to sustain the financial rigors of waging a nationwide campaign. Additionally, the Court cited the following reasons: (1) Already declared in Maquera v. Borra that the right to vote and to be voted for shall not be made to depend upon the wealth of the candidate. (2) A cursory examination of the text of Section 69 and Section 1, Rule 24 of COMELEC Resolution No. 9523 would, however, show that both are silent as to the requirement of proof of financial capacity before an aspirant may be allowed to run in the national elections. (3) Section 13 of RA 7166 merely sets the current allowable limit on expenses of candidates and political parties for election campaign. It does not (whether by intention or operation) require a financial requirement for those seeking to run for public office, such that failure to prove capacity to meet the allowable expense limits would constitute ground to declare one a nuisance candidate. (4) A candidate's financial capacity to sustain the rigors of waging a nationwide campaign does not necessarily equate to a bona fide intention to run for public office. Page 348 of 479

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The COMELEC's burden is thus to show a reasonable correlation between proof of a bona fide intention to run, on the one hand, and proof of financial capacity to wage a nationwide campaign on the other. This is the import of the U.S. Supreme Court ruling in Bullock v. Carter.

d. Duties of the COMELEC Powers and Functions The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. (5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens’ arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. (9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. (PHIL.CONST. art. IX-C, §2) Summary of COMELEC Powers and Functions GENERAL POWERS: (1) Enforcement and administration of election laws and regulations (PHIL.CONST. art. IXC, §2) for the purpose of ensuring free, honest, orderly, credible, peaceful elections. (OEC, §52, Art. VII) (2) Promulgate rules and regulations implementing the Omnibus Election Code and other laws which the COMELEC is required to enforce Rule-Making Power (Sec. 2, PHIL. CONST. art. IX-C, §2; OEC, §52, Art. VII) (3) Exclusive control and supervision over the Automated Election System (R.A. 8436) (4) Issue a subpoena in the exercise of quasijudicial (OEC, §52(d) (5) Power to punish for contempt provided for in the Rules of Court. (OEC, §52(d)) (6) Power to issue auxiliary writs and processes (Soller v. COMELEC, G.R. No. 139853) Page 349 of 479

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(7) Power to decide election cases within its jurisdiction (i.e., regional, provincial, and city elective officials) in the exercise of its quasi-judicial functions (PHIL. CONST. art. IX-C) SPECIFIC POWERS: (1) To declare a failure of elections and call for the holding of the election not held or suspended. (OEC, §4) (2) To conduct special elections upon grant of authority by Congress (Kida v. Senate, GR No. 196271) (3) To postpone elections for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia, force majeure, and other analogous causes. (OEC, §5) (4) To correct manifest error in election documents (administrative function) (De Leon v. Imperial, GR No. L-5758) (5) To order re-canvass of votes if its suspension order is violated (Javier v. COMELEC, GR No. 22248) (6) To annul or suspend, partially or totally, candidate proclamation (Salcedo v. COMELEC, GR No. L-16835) (7) To annul an illegal canvass (Salcedo v. COMELEC, GR No. L-16835) (8) Changing of the designation of polling places (OEC, §153, art. XIII) (9) To transfer venue of canvassing of votes (COMELEC Resolution No. 9574) (10) Examination of the book of voters, ballot boxes and their keys, ballots and other documents and the recounting of votes. (OEC, §255, Art. XXI) (11) To conduct Initiative, Referendum, Recall, Plebiscite (PHIL. CONST. Art. IX-C, §2) (12) To investigate and prosecute election offenses (OEC, §265, Art. XXII) (13) To deputize, with the concurrence of the President, law enforcement agencies and government instrumentalities. (PHIL. CONST. Art. IX-C, §2) Standby Power of COMELEC If it shall no longer be reasonably possible to observe the periods and dates prescribed by law for certain pre-election acts, the Commission shall fix other periods and dates in order to ensure accomplishment of the activities so voters shall not be deprived of their suffrage. (R.A. 8436, §28) However, this standby power relative to the fixing the date of registration of voters is subject to the system of continuing registration of voters under Sec. 8, RA 8189: “The personal filing BACK TO TOC

of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election.” Disposition of Election Cases The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (PHIL. CONST. art. IXC, §3) NOTE: This is the legal basis why petitions to cancel/deny due course a COC and petitions for disqualification, as well as pre-proclamation controversies, must be heard by the COMELEC division as a jurisdictional requirement. Supervising/Regulating Franchises or Permits The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any governmentowned or controlled corporation or its subsidiary. PURPOSE: Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (PHIL. CONST. art. IX-C, §4) Election Period Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of the election and shall end thirty days after. (PHIL. CONST. art. IXC, §9) Funding of Elections Funds certified by the Commission as necessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be Page 350 of 479

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released automatically upon certification by the Chairman of the Commission. (PHIL. CONST. art. IX-C, §11) Exclusive Original Jurisdiction of COMELEC (1) COMELEC DIVISION – shall have exclusive jurisdiction in pre-proclamation controversies arising from national, regional or local elections. (OEC, §242; COMELEC Resolution No. 8804 s.2010, § 2, Rule 3) A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission (division only, not en banc), or any matter raised under Sections 233, 234, 235, and 236 (election returns are delayed, lost, destroyed, falsified, tampered or have material defects or discrepancies) in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. NOTE: All pre-proclamation cases can only be heard by the COMELEC Division, not en banc; otherwise, null and void. (Soller v. COMELEC, GR No. 139853, citing Sarmiento v. COMELEC) (2) COMELEC DIVISION – shall have exclusive original jurisdiction over all election protests involving elective regional (the autonomous regions), provincial, and city officials (NOTE: Municipal officials not included here; jurisdiction is with Regional Trial Courts). (COMELEC Resolution No. 8804 s.2010, §1, Rule 6) (3) COMELEC EN BANC - Enforcement of laws and rules in relation to the conduct of elections. (Zaldivar v. Estenzo, GR No. L-26065) (4) COMELEC EN BANC - shall have the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. (COMELEC Rules of Procedure, §1, Rule 34) COMELEC DIVISION CASES (1) Petitions for Certiorari from the decisions, orders, resolution of the RTC and MTC in election protests. (Soller v. COMELEC, GR No. 139853) (2) Cases appealed from RTC and MTC. (Abad v. COMELEC, GR No. 128877)

(3) Petitions to cancel certificate of candidacy. (Bautista v. COMELEC, GR No. 154796) (4) All contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials (including pre-proclamation controversies). (PHIL. CONST. art. IX-C, §2 (2)) COMELEC EN BANC CASES (1) MR of a decision rendered by a COMELEC Division. (PHIL. CONST. art. IX-C, §3) (2) Petition for correction of manifest errors from erroneous copying of figures from the Election Return to the Statement of Votes by precinct. (Jaramilla v. COMELEC, GR No. 155717) NOTE: Considered as function; hence, en banc.

ADMINISTRATIVE

(3) Cases involving violation of election laws. (Baytan v. COMELEC, GR No. 153945) (4) Where COMELEC exercises administrative and does not exercise adjudicatory/quasi-judicial powers. (Baytan v. COMELEC, GR No. 153945) NOTE: The COMELEC’s administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article IX-C. Thus, the only quasi-judicial function of the COMELEC is Section 2(2) over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Legal Consequence of Failure to Obtain Majority Four (4) Votes in an MR to COMELEC (1) In Mendoza v. COMELEC, GR No. 191084, 2010, the SC ruled that failure to obtain the necessary majority vote of four (4) in an MR to the COMELEC en banc would lead to the dismissal of the election protest filed with the COMELEC division subject of the MR. (2) However, the SC reversed the Mendoza Doctrine in Legaspi v. COMELEC, GR No. 216572, 19 April 2016 as follows: “The Mendoza doctrine, as reiterated in the September 1, 2015 Decision, deviated from the 1987 Constitution. Not only does it circumvent Page 351 of 479

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the four-vote requirement under Sec. 7, Art. IX-A of the Constitution, it likewise diminishes the adjudicatory powers of the COMELEC Divisions under Sec. 3, Article IX-C. Under Sec. 3, Article IX-C of the 1987 Constitution, the COMELEC Divisions are granted adjudicatory powers to decide election cases, provided that the COMELEC en banc shall resolve motions for reconsideration of the division rulings. Further, under Sec. 7, Article IXA of the Constitution, four (4) votes are necessary for the COMELEC en banc to decide a case. Naturally, the party moving for reconsideration, as the party seeking affirmative relief, carries the burden of proving that the division committed reversible error. The movant then shoulders the obligation of convincing four (4) Commissioners to grant his or her plea. This voting threshold, however, is easily rendered illusory by the application of the Mendoza ruling, which virtually allows the grant of a motion for reconsideration even though the movant fails to secure four votes in his or her favor, in blatant violation of Sec. 7, Art. IX-A of the Constitution.” (Legaspi v. Commission on Elections, G.R. No. 216572 (Resolution)) Intra-Political Party Disputes COMELEC may intervene in disputes internal to a political party only when necessary to the discharge of its constitutional functions [Atienza v. COMELEC, GR No. 188920, 16 February 2010], such as the ascertainment of the identity of the political party and its legitimate officers (LDP v. COMELEC, GR No. 161265) Cases Involving the Right of Suffrage The jurisdiction to decide controversies on inclusion or exclusion of voters belongs to the MTC and MeTC (OEC, §138, Art. XII)

party within thirty days from receipt of a copy thereof. (PHIL. CONST. art. IX, §7) Thus, a judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. (Rules of Court, §2, Rule 64) But for the SC to take cognizance of the case, it must be a decision by the COMELEC en banc and not an interlocutory order by a COMELEC division (Cagas v. COMELEC, GR No. 194139) COMELEC Supervision and Control over the Conduct of Automated Elections The power and duty of the COMELEC to administer election laws and to have control and supervision over the automated elections is not incompatible with the decision to subcontract services that may be better performed by those who are well-equipped to handle complex technological matters with respect to the implementation of the AES. The subcontractor cannot act independently of the COMELEC. (Roque v. COMELEC, GR No. 188456) Ministerial duty of COMELEC to receive Certificate of Candidacy It is the ministerial duty of COMELEC and its officers to receive a certificate of candidacy. (Omnibus Election Code, § 76.) While the COMELEC may look into patent defects in the Certificate of Candidacy, it may not go into matters not appearing on their face. The question of eligibility or ineligibility of a candidate is thus beyond the usual and proper cognizance of the COMELEC (Cerafica v. COMELEC, G.R. No. 205136) Duty of COMELEC to decide cases on cancellation or denial of Certificate of Candidacy

Jurisdiction Over Election Contests Involving Municipal and Barangay Elective Officials COMELEC exercises appellate jurisdiction (not original jurisdiction) over all contests involving elective municipal officials decided by trial courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited jurisdiction. (PHIL. CONST. art. IX-C, §2 (2))

What to file: Petition to deny or cancel certificates of candidacy

Judicial Review of COMELEC Decisions Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission [including COMELEC] may be brought to the Supreme Court on certiorari by the aggrieved

When: Any time not later than 25 days from filing of certificate of candidacy

Who can file: Any Party How: Petition to deny due course or Cancel certificate of candidacy under oath

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Where: COMELEC must decide the case not later than 15 days before election (period is not mandatory however) Exclusive Ground: material misrepresentation (FMD) (1) Must be False. (2) Must be Material (goes into the qualifications). (3) Must be Deliberate and there is an intention to defraud the electorate. The COMELEC must determine whether or not the candidate deliberately attempted to mislead, misinform or hide a fact about his or her residency that would otherwise render him or her ineligible for the position sought. The COMELEC gravely abused its discretion in this case when, in considering the residency issue, it based its decision solely on very personal and subjective assessment standards, such as the nature or design and furnishings of the dwelling place in relation to the stature of the candidate. (Mitra v. COMELEC, G.R. No. 191938, Jul. 19, 2010) Misrepresentation of nickname is not a material misrepresentation because the use of nickname is not a qualification of public office. Nickname does not affect eligibility; hence, not a material representation. To be material, such must refer to an eligibility or qualification for the elective office the candidate seeks to hold. Here, respondent’s nickname is not a qualification for a public office which affects his eligibility. The proper recourse is to file an election protest and pray that votes be declared as stray votes (Villafuerte v. COMELEC, G.R. No. 206698) Material representation contemplated by Section 78 refers to qualifications for elective office, such as the requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided for in the Local Government Code. Furthermore, aside from the requirement of materiality, the misrepresentation must consist of a deliberate attempt to mislead, misinform, or hide a fact, which would otherwise render a candidate ineligible (Caballero v. COMELEC, G.R. No. 209835) Failure to comply with RA 9225 requirements despite statement in COC is material representation. Aside from the bare allegation that she is a natural-born citizen, however, petitioner submitted no proof to support such contention. Neither did she submit any proof as to the inapplicability of R.A. No. 9225 to her. xxx xxx Such

being the case, the COMELEC did not err when it inquired into the compliance by petitioner of Sections 3 and 5 of RA 9225 to determine if she reacquired her status as a natural-born Filipino citizen. It simply applied the constitutional provision and nothing more. (Reyes v. COMELEC) If a candidate cannot be disqualified without a prior finding that she or he is suffering from a disqualification “provided by law or the Constitution,” neither can the certificate of candidacy be cancelled or denied due course on grounds of false misrepresentation regarding his or her qualification, without a prior authoritative finding that he or she is not qualified. (Poe-Llamanzares v. COMELEC, G.R. No. 221697) The COMELEC cannot, in the same cancellation case based on the ground of false material representation, decide the qualification or lack thereof of the candidate. (Poe-Llamanzares v. COMELEC, G.R. No. 221697) A CoC may be cancelled on the ground that the “candidate” misrepresented his eligibility in his CoC because he knew that he had been convicted by final judgment for libel, a crime involving moral turpitude regardless of the fact that he was merely the publisher of the libelous articles, and that his penalty was merely a fine. (Ty-Delgado v. HRET, G.R. No. 219603) If the certificate of candidacy is void ab initio, the candidate is not considered a candidate from the very beginning even if his certificate of candidacy was cancelled after the elections. (H. Sohria Pasagi Diambrang vs. COMELEC, G.R. No. 201809) The summary nature of proceedings under Section 78 only allows it to rule on patent material misrepresentations of facts, not to make conclusions of law that are even contrary to jurisprudence. (Dano vs. COMELEC, G.R. No. 210200) False Material Misrepresentation: When Applicable • When a candidate uses the name of her longtime live-in partner or states a false profession. • When the candidate is actually qualified even if the entries in the CoC as filled up by the candidate will show that he is not. • When the candidate, supported by a preponderance of evidence, believed that he was qualified since there was no intention to deceive the electorate as to one’s qualifications for public office. Page 353 of 479

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Effects of Disqualification Any candidate who has been declared by final judgment to be disqualified shall not be voted for. One who is disqualified under Section 68 is still technically considered to have been a candidate, albeit proscribed to continue as such only because of supervening infractions which do not, however, deny his or her statutory eligibility (Tagolino v. HRET, G.R. No. 202202) When a person who is not qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications and disqualifications of candidates. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates. Knowledge by the electorate of a candidate’s disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner (Maquiling v. Commission on Elections, G.R. No. 195649) A person whose COC was cancelled due to ineligibility for failure to prove Filipino citizenship and the one-year residence requirement could not have been a valid candidate, and could not have been validly proclaimed. Thus, she could not have validly assumed her position. (Velasco v. Belmonte, G.R. No. 211140) The purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. A petition to disqualify a candidate may be filed pursuant to Section 68 of the Omnibus Election Code. Offenses that are punished in laws other than in the Omnibus Election Code cannot be a ground for a Section 68 petition. (Ejercito v. COMELEC, G.R. No. 212398) Effect of Re-Election on Administrative Liability Abandonment of the Condonation Doctrine. The concept of public office is a public trust and the corollary requirement of accountability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective local official’s administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office, or even another elective post. Election

is not a mode of condoning an administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for a different term is fully absolved of any administrative liability arising from an offense done during a prior term. (CarpioMorales v. Binay, G.R. No. 217126-27) NOTE: Abandonment of the Condonation Doctrine was applied 12 April 2016 onwards when CapioMorales v. CA, Binay became final and executory. (Crebello v. Ombudsman, G.R. No. 232325, 2019) The COMELEC may suspend the proclamation of a candidate who gets the majority votes, if he has been disqualified before the election but the decision has not yet become final. He will not be proclaimed except where the judgment of disqualification is finally reversed. Exception to non-proclamation of candidate with 2nd highest number of votes: (1) The one who obtained the highest number of votes is disqualified; and (2) The electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate (Grego v. COMELEC, G.R. No. 125955) Distinction between Disqualification and Cancellation of COC: (a) A petition for cancellation of a certificate of candidacy is not based on lack of qualification but on false representation, which may relate to lack of qualification, such as residence. A petition for disqualification refers to commission of prohibited acts and possession of permanent resident status in a foreign country. (b) A candidate whose certificate of candidacy was cancelled is not treated as a candidate. A candidate who is disqualified cannot continue as a candidate. (c) A candidate whose certificate of candidacy was cancelled could be substituted. A candidate who is disqualified cannot be substituted. (d) A petition to deny due course or to cancel a certificate of candidacy must be filed within 25 days from the time of filing of the COC, as provided under Section 78 of the OEC (Albania v. COMELEC, G.R. No. 226792) (e) A petition for disqualification of a nuisance candidate should be filed within 5 days from the last day for filing certificate of candidacy (Fermin v. COMELEC, G.R. No. 179695)

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Rules on Lone Candidate in a Special Election (1) PROCLAMATION OF LONE CANDIDATE. Upon the expiration of the deadline for the filing of the certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the Commission on Elections without holding the special election upon certification by the Commission on Elections that he is the only candidate for the office and is thereby deemed elected. (R.A. 8295, §2) (2) ASSUMPTION OF OFFICE. In the absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation, as provided for under Sections 69 and 78 of Batas Pambansa Bilang 881 also known as the Omnibus Election Code of the Philippines, the candidate referred to in the preceding paragraph shall assume office not earlier than the scheduled election day. Certificates of candidacy filed in violation hereof shall not be given due course. For this purpose, the Commission shall decide petitions for disqualifications not later than election day; otherwise, such petitions shall be deemed dismissed. (R.A. 8295, §3) (3) DISQUALIFICATIONS. In addition to the disqualifications mentioned in Sections 12 and 68 of the Omnibus Election Code and Section 40 of Republic Act No. 7160, otherwise known as the Local Government Code, whenever the evidence of guilt is strong, the following persons are disqualified to run in a special election called to fill the vacancy in an elective office, to wit: (a) Any elective official who has resigned from his office by accepting an appointive office or for whatever reason which he previously occupied but has caused to become vacant due to his resignation; and (b) Any person who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates or actually causes, inflicts or produces any violence, injury, punishment, torture, damage, loss or disadvantage to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor or property that is meant to eliminate all other potential candidate. (NOTE: Per Sec. 5, RA 8295, this also constitutes as an election offense that shall be prosecuted and penalized under OEC, §264.) (Sec. 4, R.A. 8295, §4)

Rules on Retention and Reacquisition of Philippine Citizenship and Running for Public Elective Office (R.A. 9225) Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; NOTE: This is the legal basis that requires dual citizens to renounce their foreign citizenship through an affidavit of renunciation if they are seeking elective office. Presently, this is now an eligibility declaration requirement in COCs that can be a ground for false material representation if the person fails to renounce at the time of COC filing. (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the Page 355 of 479

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armed forces of the country which they are naturalized citizens. (R.A. 9225, §5)

C. CAMPAIGN 1. PREMATURE CAMPAIGNING Premature Campaign It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and fortyfive days for Presidential and Vice-Presidential election. (OEC, §80) General Rule: No person may engage in an election campaign or partisan political activity before the campaign period. Exception: Political parties may hold political conventions or meetings to nominate their official candidates within 30 days before campaign period and 45 days for Presidential and Vice-Presidential election. Only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. (Rosalinda Penera v. COMELEC, GR No. 205728) NOTE: The deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections (R.A. 8436, §11)

2. PROHIBITED CONTRIBUTIONS Electoral Contributions The term "contribution" includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the

use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. (OEC, §94(a)) Prohibited Contributions (POV of DONOR) No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following: (a) Public or private financial institutions: Provided, however, That nothing herein shall prevent the making of any loan to a candidate or political party by any such public or private financial institutions legally in the business of lending money, and that the loan is made in accordance with laws and regulations and in the ordinary course of business; (b) Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation; (c) Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works; (d) Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations; (e) Natural and juridical persons who, within one year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including government-owned or controlled corporations; (f) Educational institutions which have received grants of public funds amounting to no less than P100,000.00; (g) Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; and (h) Foreigners and foreign corporations. It shall be unlawful for any person to solicit or receive any contribution from any of the persons or entities enumerated herein. (OEC, §95) NOTE: Under the old Corporation Code, domestic and foreign corporations are prohibited from making electoral contributions. Under the Revised Corporation Code, only foreign corporations are prohibited. Thus, domestic corporations can now make reasonable contributions. (R.A. 11232, §35 in relation to §95) Page 356 of 479

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Summary of Prohibited Contributions: (UF2 PLAC2E) (1) Public Utilities or those exploiting natural resources of the nation (2) Public or private Financial institutions, except loans to a candidate or political party (3) Foreigners and foreign corporations (4) Grantees of franchises, incentives, exemptions, allocations or similar Privileges or concessions by the government (5) Persons who, within 1 year prior to the date of the election, have been granted Loans or other accommodations in excess of P100,000 by the government (6) Members of the Armed forces of the Philippines (7) Officials or employees in the Civil service (8) Persons with Contracts to supply the government with goods or services or to perform construction or other works (9) Educational institutions which have received grants of public funds not less than p100,000 by the government Prohibited Contributions (Receipt and Solicitation) It shall be unlawful for any person, including a political party or public or private entity to solicit or receive, directly or indirectly, any aid or contribution of whatever form or nature from any foreign national, government or entity for the purposes of influencing the results of the election. (OEC, §96) Prohibited Ways of Raising Electoral Campaign Funds. It shall be unlawful for any person to hold dances, lotteries, co*ckfights, games, boxing bouts, bingo, beauty contests, entertainments, or cinematographic, theatrical or other performances for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to and including election day; or for any person or organization, whether civic or religious, directly or indirectly, to solicit and/or accept from any candidate for public office, or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the commencement of the election period up to and including election day; Provided, That normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days, are excluded from this prohibition. (OEC, §96) Prohibited Means of Raising Funds: (C2L-B3ED) (1) Cinematographic, theatrical or other performances (2) co*ckfights

(3) (4) (5) (6) (7) (8)

Lotteries Boxing bouts Bingo Beauty contests Entertainment and games Dances (OEC, §97)

Electoral Contribution Not Subject to Gift Tax. Any contribution in cash or in kind to any candidate or political party or coalition of parties for campaign purposes, duly reported to the Commission, shall not be subject to the payment of any gift tax. (R.A. 7166, §13) Unspent Contribution Subject to Income Tax. Any unexpended balance from any contribution to candidate or party shall be subject to income tax. (COMELEC Resolution No. 9476 s.2012 citing BIR Revenue Regulation No. 7-2011) General Rule: It shall be unlawful for any person or organization to solicit and/ or accept any gift, contribution, food, transportation or donation in cash or in kind from the commencement of the election period up to and including election day. Exception: Normal and customary stipends, tithes or collections.

religious

Prohibited Donations It is prohibited for any candidate, his spouse, relative within second degree of consanguinity or affinity, a representative to make any contribution for any structure for public use or for use of any religious or civic organization, except the normal religious dues and payments for scholarships established and school contributions habitually made before the campaign period. (OEC, §104)

3. LAWFUL AND PROHIBITED ELECTION PROPAGANDA Election Propaganda Election propaganda whether on television, cable television, radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party-list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the COMELEC.

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Lawful election propaganda shall include: (1) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed 8.5 inches in width and14 inches in length (8.5 in. x 14 in.); (2) Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office; (3) Cloth, paper or cardboard posters whether framed, or posted, with an area not exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally; (4) Paid advertisem*nts in print or broadcast media: Provided, That the advertisem*nts shall follow the requirements set forth in Section 4 of this Act (R.A. 9006); (R.A. 9006, §3) and (5) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (OEC, §82(d)). Summary Rules on Election Propaganda: • All registered parties and bona fide candidates shall have the right to reply to charges published against them. • No movie, cinematograph, documentary portraying the life or biography of a candidate shall be publicly exhibited in a theatre, TV station, or any public forum during the campaign period. • No movie, cinematograph, documentary portrayed by an actor or media personality who is himself a candidate shall be publicly exhibited in a theatre, TV station or any public form during the campaign period. • All mass media entities shall furnish the COMELEC with copies of all contracts for advertising, promoting, or opposing any political party or the candidacy of any person for public office within 5 days after its signing. • Any media personality who is a candidate or is a campaign volunteer for or employed or

retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a LOA from his work as such during the campaign period. Rules on Published or Printed and Broadcast Election Propaganda (Paid Advertisem*nts) (1) PRINT • ¼ page in broadsheet, 3x a week • ½ page in tabloid, 3x a week (2) RADIO (per STATION) • 180 mins. for National candidates • 90 mins. for Local candidates (3) TV (per STATION) • 120 mins. for National candidates • 60 mins. for Local candidates The Fair Election Act does not justify a conclusion that the maximum allowable airtime should be based on the totality of possible broadcast in all television or 35 radio stations, and the COMELEC has no authority to provide for rules beyond what was contemplated by the law it is supposed to implement. (GMA Network, Inc. v. COMELEC, G.R. No. 205357) NOTE: As it stands now, the limits of 120 minutes for TV and 180 minutes for radio is PER STATION – not aggregate or not per network. Thus, there are separate airtime limits for the regional tv and radio stations of networks. Any newspaper, newsletter, newsweekly, gazette or magazine advertising, posters, pamphlets, comic books, circulars, handbills, bumper stickers, streamers, sample list of candidates or any published or printed political matter and any broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be identified by the reasonably legible or audible words "political advertisem*nt paid for," followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. If the broadcast is given free of charge by the radio or television station, it shall be identified by the words "airtime for this broadcast was provided free of charge by" followed by the true and correct name and address of the broadcast entity. Print, broadcast or outdoor advertisem*nts donated to the candidate or political party shall not be printed, published, broadcast, or exhibited without the written acceptance by the said candidate or Page 358 of 479

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political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC as provided in Subsection 6.3. hereof. (R.A. 9006, §4) Public Rallies: (1) The candidate or party must notify election registrar that they intend to organize and hold within the city/municipality (2) Submit to election registrar a statement of expenses in connection therewith. (OEC, §88) COMELEC Space and Airtime Pursuant to Sections 90 and 92 of the Omnibus Election Code (Batas Pambansa Bldg. 881), the COMELEC shall procure the print space upon payment of just compensation from at least three (3) national newspapers of general circulation wherein candidates for national office can announce their candidacies. Such space shall be allocated free of charge equally and impartially among all the candidates for national office on three (3) different calendar days: the first day within the first week of the campaign period; the second day within the fifth week of the campaign period; and the third day within the tenth week of the campaign period. The COMELEC shall also procure free airtime from at least three (3) national television networks and three(3) national radio networks, which shall also be allocated free of charge equally and impartially among all candidates for national office. Such free time shall be allocated on three (3) different calendar days; the first day within the first week of the campaign period; the second day within the fifth week of the campaign period; and the third day within the tenth weeks of the campaign period.

The COMELEC shall procure shall in at least one (1) newspaper of general circulation and air time in at least one (1) major broadcasting station or entity in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "COMELEC Space": Provided, further, That in the absence of said broadcasting station or entity, broadcasting shall be done in any radio or television station in said province or city, which shall be known as "COMELEC Time". Said time shall be allocated to the COMELEC free of charge, while said space shall be allocated to the COMELEC upon payment of just compensation. The COMELEC time and space shall be utilized exclusively by the COMELEC for public information dissemination on electionrelated concerns. (R.A. 9006, §8) Thus: (1) SPACE (PUBLISHED OR PRINTED) (a) 3 National newspapers - National candidates (b) 1 National newspaper - Local candidates (2) AIRTIME (BROADCAST) (a) 3 National TV and Radio Networks National candidates (b) 1 Major Broadcasting station - Local candidates There shall be equal allocation for all candidates for 3 calendar days.

The COMELEC may require national television and radio networks to sponsor at least three (3) national debates among presidential candidates and at least one (1) national debate among vice presidential candidates. The debates among presidential candidates shall be scheduled on three (3) different calendar days; the first debate shall be scheduled within the first and second week of the campaign period; the second debate within the fifth and sixth week of the campaign period; and the third debate shall be scheduled within the tenth and eleventh week of the campaign period.

COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a noncandidate. Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest possible range of opinions coming from the electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate. (Diocese of Bacolod v. COMELEC, G.R. No. 205728)

The sponsoring television or radio network may sell air-time for commercials and advertisem*nts to interested advertisers and sponsors. The COMELEC shall promulgate rules and regulations for the holding of such debates. (R.A. 9006, §7)

However, regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative Page 359 of 479

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speech that, taken as a whole, has for its principal object the endorsem*nt of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time, place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its content. For this purpose, it will not matter whether the speech is made with or on private property. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, obiter dictum) Posting of Campaign Materials The COMELEC may authorize political parties and party-list groups to erect common poster areas for their candidates in not more than ten (1) public places such as plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit election propaganda: Provided, That the size of the poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise be authorized to erect common poster areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in public places or property which shall be allocated equitably and impartially among the candidates. (R.A. 9006, §9) Right to Reply All registered parties and bona fide candidates shall be have the right to reply to charges published against them. The reply shall be given publicity by the newspaper, television and/or radio station which first printed or aired the charges with the same prominence or in the same page or section or in the same time slot as the first statement. [Sec. 10, RA 9006] Prescribed Rates for Political Propaganda During the election period, media outlets shall give registered political parties and bona fide candidates a discount of fifty percent (50%) for television, forty percent (40%) for radio and ten percent (10%) for print, from the average of the published rates charged in the last three calendar years prior to the election.

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Nothing in this provision prohibits a media outlet from giving higher discounts: Provided, That the discount it gives one candidate shall be the same discount it gives to other candidates for the same position. In no case shall rates charged to registered political parties and bona fide candidates be higher than rates charged to non-political advertisers. (R.A. 9006, §10 (as amended by R.A. 11207)) Election Surveys Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period. (R.A. 9006, §5.1) The prohibition (on election surveys) may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. Sec. 5.4 (of RA 9006) (which sought to prohibit publication of election surveys 15 days before a national election and 7 days before a local election) is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression. (SWS v. COMELEC, GR No. 147571) The names of those who commission or pay for election surveys, including subscribers of survey firms, must be disclosed pursuant to Section 5.2(a) of the Fair Election Act. This requirement is a valid regulation in the exercise of police power and effects the constitutional policy of “guaranteeing equal access to opportunities for public service.”, and neither curtails petitioners’ free speech rights nor violates the constitutional proscription against the impairment of contracts. (Social Weather Stations, Inc. et al v. COMELEC, G.R. No. 208062) When published, the tendency of election surveys to shape voter preferences comes into play. In this respect, published election surveys partake of the nature of election propaganda. It is then declarative speech in the context of an electoral campaign properly subject to regulation. (Social Weather Stations, Inc. et al v. COMELEC, G.R. No. 208062) Page 360 of 479

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While Resolution No. 9674 does regulate expression (i.e., petitioners’ publication of election surveys), it does not go so far as to suppress desired expression. There is neither prohibition nor censorship specifically aimed at election surveys. The freedom to publish election surveys remains. All Resolution No. 9674 does is articulate a regulation as regards the manner of publication, that is, that the disclosure of those who commissioned and/or paid for, including those subscribed to, published election surveys must be made. (Social Weather Stations, Inc. et al v. COMELEC, G.R. No. 208062) Exit Polls Exit polls may only be taken subject to the following requirements: (a) Pollsters shall not conduct their surveys within fifty (50) meters from the polling place, whether said survey is taken in a home, dwelling place and other places; (b) Pollsters shall wear distinctive clothing; (c) Pollsters shall inform the voters that they may refuse to answer; and (d) The result of the exit polls may be announced after the closing of the polls on election day, and must clearly identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend. (R.A. 9006, §5.5) The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the COMELEC cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls — properly conducted and publicized — can be vital tools in eliminating the evils of electionfixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people. (ABSCBN v. COMELEC, GR No. 133486)

4. LIMITATIONS ON EXPENSES Authorized Expenses The agreement amount that a candidate or registered political party may spend for election campaign shall be as follows: (a) For candidates. - Ten pesos (P10.00) for President and Vice-President; and for other candidates Three Pesos (P3.00) for every voter

currently registered in the constituency where he filed his certificate of candidacy: Provided, That a candidate without any political party and without support from any political party may be allowed to spend Five Pesos (P5.00) for every such voter; and NOTE: The law is clear — the candidate must both be without a political party and without support from any political party for the P5.00 cap to apply. In the absence of one, the exception does not apply (hence, the P3.00 cap will apply). (Salvador v. COMELEC, GR No. 204357) (b) For political parties. - Five pesos (P5.00) for every voter currently registered in the constituency or constituencies where it has official candidates. Any provision of law to the contrary notwithstanding any contribution in cash or in kind to any candidate or political party or coalition of parties for campaign purposes, duly reported to the Commission shall not be subject to the payment of any gift tax. (R.A. 7166, §13 (amending Secs. 100-101, OEC)) 3rd Party Donations Included in the Allowable Expenditure Limit In tracing the legislative history of Sections 100, 101, and 103 of the OEC, it can be said, therefore, that the intent of our lawmakers has been consistent through the years: to regulate not just the election expenses of the candidate but also of his or her contributor/supporter/donor as well as by including in the aggregate limit of the former’s election expenses those incurred by the latter. The phrase "those incurred or caused to be incurred by the candidate” is sufficiently adequate to cover those expenses which are contributed or donated in the candidate’s behalf. By virtue of the legal requirement that a contribution or donation should bear the written conformity of the candidate, a contributor/supporter/donor certainly qualifies as "any person authorized by such candidate or treasurer." Ubi lex non distinguit, nec nos distinguere debemus. (Where the law does not distinguish, neither should We.) There should be no distinction in the application of a law where none is indicated. (Ejercito v. COMELEC, GR No. 212398) Summary of Rules on Authorized Expenses Multiplied by the total number of registered voters: (1) P10 - President and Vice President (2) P3 - Other candidates (with political party OR with political support) (3) P5 - Independent candidates (without political party AND without political support) (4) P5 - Political parties Page 361 of 479

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Lawful Expenditures No candidate or treasurer of a party shall, directly or indirectly, make any expenditure except for the following purposes: (a) For traveling expenses of the candidates and campaign personnel in the course of the campaign and for personal expenses incident thereto; (b) For compensation of campaigners, clerks, stenographers, messengers, and other persons actually employed in the campaign; (c) For telegraph and telephone tolls, internet access, postages, freight and express delivery charges; (d) For stationery, printing and distribution of printed materials relative to the candidacy; (e) For employment of watchers at the polls; (f) For rent, maintenance and furnishing of campaign headquarters, office or place of meetings; (g) For political meetings and rallies and the use of sound systems, lights and decorations during said meetings and rallies; (h) For newspaper, radio, television and other advertisem*nts for purposes of promoting the candidacy, including website or internet ad placements, subject to existing rules and regulations on the broadcast advertising. (i) For employment of counsel; (j) For copying and classifying lists of voters, investigating and challenging the right to vote of persons registered in the lists; and (k) For printing sample ballots in such color, size and maximum number as may be authorized by the Commission. The expenditures for items (i – i.e. employment of counsel), (j – i.e. copying and classifying lists of voters), and (k – i.e. printing sample ballots), shall not be taken into account in determining whether the expenditure limit has been breached by the candidate or party in the conduct of campaign activities. (OEC, §102) Failure to comply with this Section constitutes an election offense under Section 102 in relation to Section 262 of the Omnibus Election Code. (COMELEC Resolution No. 9476 s.2012, §3 Rule 4, citing OEC, §102) Summary of Rules on Lawful Expenditures (1) Traveling expenses (2) Compensation of campaigners, clerks, stenographers, messengers and other persons actually employed in the campaign (3) Telegraph and telephone tolls, postage, freight and express delivery charges

(4) Stationary, printing and distribution of printed matters relative to candidacy (5) Employment of watchers at the polls (6) Rent, maintenance and furnishing of campaign HQ, office, or place of meetings (7) Political meetings and rallies (8) Advertisem*nts (9) Employment of counsel (10) Printing sample ballots (11) Copying and classifying list of voters, investigating and challenging the right to vote of persons registered in the lists NOTE: The expenses for (9), (10), (11) are not charged against the allowable expenditure limits. The phrase “those incurred or caused to be incurred by the candidate” is sufficiently adequate to cover those expenses which are contributed or donated in the candidate’s behalf. By virtue of the legal requirement that a contribution or donation should bear the written conformity of the candidate, a contributor/ supporter/ donor certainly qualifies as any person authorized by such candidate or treasurer. (Ejercito v. COMELEC, G.R. No. 212398)

5. STATEMENT OF CONTRIBUTIONS AND EXPENSES Reporting of Contributions and Expenditures Statement of Contributions and Expenditures (SOCE). Not later than thirty (30) days after the day of election, every candidate shall file in triplicate with the offices of the Commission where he filed his certificate of candidacy except for national positions which should be filed with the Campaign Finance Unit, a full, true and itemized statement of all contributions and expenditures in connection with the elections. (Also R.A. 7166, §14) Within the same period, the treasurer of every party that participated in the elections shall file with the Campaign Finance Unit of the COMELEC the party's statement of election contributions and expenditures. If the statement is sent by mail, it shall be by registered mail, and the date on which it was registered with the post office may be considered as the filing date thereof if confirmed on the same date by telegram or radiogram addressed to the office or official with whom the statement should be filed, which telegram or radiogram shall indicate the registry receipt number of such registered mail. The Regional Election Director of the National Capital Region, Provincial Election Supervisors and Page 362 of 479

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Election Officers concerned shall, not later than fifteen (15) days after the last day for the filing of the Statements of Contributions and Expenditures, send to the Campaign Finance Unit, Commission on Elections, Manila, duplicate copies of all statements filed with them. (COMELEC Resolution No. 9476 s.2012 , §2 Rule 8, citing OEC, §108) Obligation to file SOCE. Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his statement of contributions and expenditures. The law makes no distinction or qualification as to whether the candidate pursued his candidacy or withdrew the same, the term "every candidate" must be deemed to refer not only to a candidate who pursued his campaign, but also to one who withdrew his candidacy. (Pilar v. COMELEC, GR No. 115245) Consequences for the Non-Filing of SOCE. No person elected to any public offices shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required. The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act. Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures are required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One thousand pesos (P1,000.00) to Thirty thousand pesos (P30,000.00), in the discretion of the Commission. The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures. (Resolution No. 9476 s.2012, §1, Rule 8) For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two thousand pesos BACK TO TOC

(P2,000.00) to Sixty thousand pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office. (R.A. 7166, §14) Moreover, that Congress has deemed fit to impose the penalty of perpetual disqualification on candidates who repeatedly failed to file their SOCEs cannot be the subject of judicial inquiry. Congress has the absolute discretion to penalize by law with perpetual disqualification from holding public office in addition to administrative fines the seekers of public office who fail more than once to file their SOCEs. Such penalty is intended to underscore the need to file the SOCE as another means of ensuring the sanctity of the electoral process. (Maturan v. COMELEC, GR No. 227155)

D. REMEDIES AND JURISDICTION 1. PETITION NOT TO GIVE DUE COURSE OR CANCEL A CERTIFICATE OF CANDIDACY (1) For False Material Representation. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (OEC, §78) A petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. (Talaga v. COMELEC, GR No. 196804) The person whose certificate is cancelled or denied due course under Sec. 78 is not treated as a candidate at all, as if he/she never filed a CoC. (Talaga v. COMELEC, GR No. 196804) It is underscored, however, that a Section 78 petition should not be interchanged or confused with a Section 68 petition. The remedies under the two sections are different, for they are based on different grounds, and can result in different eventualities. A person who is disqualified under Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or denied due course under Section 78 is not considered as a candidate at all because his status is that of a Page 363 of 479

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person who has not filed a CoC. Miranda v. Abaya has clarified that a candidate who is disqualified under Section 68 can be validly substituted pursuant to Section 77 because he remains a candidate until disqualified; but a person whose CoC has been denied due course or cancelled under Section 78 cannot be substituted because he is not considered a candidate. (Talaga v. COMELEC, GR No. 196804) Denial or cancellation of Certificate of Candidacy proceedings involves the issue of whether there is a false representation of a material fact. The false representation must necessarily pertain not to a mere innocuous mistake but to a material fact or those that refers to a candidate’s qualification for elective office. (Panlaqui v. COMELEC, G.R. No. 188671) (2) For Being a Nuisance. The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circ*mstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. (OEC, §69) THUS: COMELEC may motu proprio or upon verified petition of any interested party refuse to give due course or cancel a COC when: (1) The COC has been filed to put the election process in mockery or disrepute (2) Causes confusion among the voters by the similarity of the names of the registered candidates (3) Other circ*mstances which clearly demonstrate that the candidate has no bona fide intention to run for the office.

2. PETITION FOR DISQUALIFICATION Disqualification Petitions NOTE: Reproducing here for easy reference the section on Disqualifications discussed previously. (1) Local Government Code (RA 7160) The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more BACK TO TOC

(b) (c) (d) (e) (f)

(g)

of imprisonment, within two (2) years after serving sentence Those removed from office as a result of an administrative case; Those convicted by final judgment for violating the oath of allegiance to the Republic; Those with dual citizenship; Fugitives from justice in criminal or nonpolitical cases here or abroad; Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and The insane or feeble-minded. [Sec. 40, LGC]

Disqualifications under the LGC: (MAO-PDF) (1) Sentenced by final judgment for an offense involving Moral turpitude or for an offense punishable by 1 year or more of imprisonment within 2 years after serving sentence. (2) Removed from office as a result of an Administrative case. (3) Convicted by final judgment for violating the Oath of allegiance to the Republic. (4) Fugitives from justice in criminal or non-political cases here or abroad. (5) Dual allegiance. (6) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right. A candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office. Even if the COMELEC made no finding that the petitioner had deliberately attempted to mislead or to misinform as to warrant the cancellation of his CoC, the COMELEC could still declare him disqualified for not meeting the requisite eligibility under the Local Government Code. (Agustin v. COMELEC, G.R. No. 207105) (2) Omnibus Election Code (a) Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. This disqualifications to be a candidate herein provided shall be deemed removed upon the Page 364 of 479

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declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. (b) Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code (e.g. Ejercito v. COMELEC); (d) solicited, received or made any contribution prohibited under Sections 89 (i.e. transportation, food, drinks), 95 (prohibited contributions), 96 (foreign sources), 97 (prohibited fund raising) and 104 (prohibited donations); or (e) violated any of Sections 80 (outside campaign period BUT not anymore because of RA 9369 and Penera), 83 (destroying lawful election propaganda), 85 (prohibited election propaganda subject to RA 9006), 86 (mass media subject to RA 9006) and 261, paragraphs d (coercion of subordinates), e (terrorism, etc.), k (unlawful electioneering), v (public funds), and cc, sub-paragraph 6 (unlawful electioneering – candidacy and campaign), shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. Grounds for Disqualification: (LF2-SEND2) (1) Lacking qualifications. (2) Filing a CoC for more than 1 office (3) False and material representation in the CoC. (4) Disqualifications under the LGC. (5) Nuisance candidate. (6) Election offenses enumerated under Section 68 of the Omnibus Election Code (7) Declared insane or incompetent by competent authority. (8) Sentenced by final judgment for subversion, insurrection, rebellion or an offense which he has been sentenced to a penalty of more than 18 months, or a crime involving moral turpitude, unless given plenary pardon/ amnesty.

The use of a foreign passport amounts to repudiation or recantation of the oath of renunciation. Matters dealing with qualifications for public elective office must be strictly complied with. A candidate cannot simply be allowed to correct the deficiency in his qualification by submitting another oath of renunciation. (Arnado v. COMELEC, G.R. No. 210164) The petitioner's continued exercise of his rights as a citizen of the USA through using his USA passport after the renunciation of his USA citizenship reverted him to his earlier status as a dual citizen. Such reversion disqualified him from being elected to public office. (Agustin v. COMELEC, G.R. No. 207105) Aspects of Disqualification Cases Electoral Aspect Primary issue in the electoral aspect is whether or not the offender should be disqualified from being a candidate or from holding office. Neither a prior conviction nor even a determination of probable cause is then a requirement before a Petition for Disqualification can be lodged. (Francisco v. COMELEC). ”The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a candidate or from holding office. Proceedings are summary in character and require only clear preponderance of evidence. An erring candidate may be disqualified even without prior determination of probable cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal aspect, and viceversa.” (Francisco v. COMELEC citing Lanot v. COMELEC). Criminal Aspect Whether or not there is probable cause to charge a candidate for an election offense: The prosecutor is the COMELEC, through its Law Department, which determines whether or not probable cause exists. If there is probable cause: The COMELEC’s Law Department files the criminal information before the proper court. Proceedings before the proper court demand a full blown hearing and require proof beyond reasonable doubt to convict.

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A criminal conviction shall result in the disqualification of the offender, which may even include disqualification from holding a future public office. Petition for Disqualification vs. Petition to Deny Due Course/Cancel CoC PETITION TO DENY PETITION FOR DUE COURSE/ DISQUALIFICATION CANCEL CoC (SEC. (SEC. 68) 78) Premised on Section 12 Grounded on a or 68 of the Omnibus statement of a material Election Code, or representation in the Section 40 of the Local said certificate that is Government Code false. A person who is The person whose disqualified under certificate is cancelled Section 68 is merely or denied due course prohibited to continue as under Section 78 is not a candidate. treated as a candidate at all, as if he/she never filed a CoC. Thus, a candidate who is A person whose CoC disqualified under has been denied due Section 68 can validly be course or cancelled substituted under under Section 78 Section 77 of the OEC cannot be substituted because he/she remains because he/she is a candidate until never considered a disqualified. candidate. (Tagolino v. HRET, G.R. No. NOTE: However, if the 202202, Mar. 19, 2013) candidate is disqualified after assumption of NOTE: If the CoC of the office, he shall vacate the candidate was denied position and succession or cancelled in due under LGC shall apply as course after he has ruled. assumed office, he shall vacate the position and the second placer will be declared as winner. The Declared Winner When Winning Candidate is Disqualified or Fails to Qualify The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states: Sec. 6. Effect of Disqualification Case.— “Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election BACK TO TOC

to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.” Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6. (Talaga v. COMELEC, GR No. 196804) NOTE: Thus, in Talaga v. COMELEC, IT DEPENDS on when the disqualification became final: (1) If NOT FINAL BEFORE election = hence, still a candidate = second-placer is not the winner (Doctrine of Rejection of SecondPlacer); succession rules will apply; (2) If FINAL BEFORE election = hence, not a candidate = second-placer wins because he/she gets next highest votes among the qualified candidates. (3) However, the SC in Maquiling v. COMELEC (2013) declared the secondplacer as winner even if the disqualified candidate continued to be a candidate (no final disqualification) and was even proclaimed as the winner, to wit: the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election. Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected. As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to participate as players. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates. (4) In Halili v. COMELEC (2019), the SC ruled that in case of vacancies caused by Page 366 of 479

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those with void ab initio COCs, the person legally entitled to the vacant position would be the candidate who garnered the next highest number of votes among those eligible. Citing Jalosjos, Jr. v. Commission on Elections (2012), the SC explained: “Decisions of this Court holding that the second-placer cannot be proclaimed winner if the firstplacer is disqualified or declared ineligible should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a firstplacer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes. If a certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy is void from the very beginning. This is the more equitable and logical approach on the effect of the cancellation of a certificate of candidacy that is void ab initio.” A COMELEC resolution declaring a candidate disqualified for the said position is not yet final if a motion for reconsideration has been timely filed. At that point, he still remains qualified and his proclamation thereafter is valid. As a result, COMELEC's jurisdiction to contest his citizenship ends, and the HRET's own jurisdiction begins. (Gonzales v. COMELEC, G.R. No. 192856) A party aggrieved by an interlocutory order issued by a Division of the COMELEC in an election protest may not directly assail the order in this Court through a special civil action for certiorari. The remedy is to seek the review of the interlocutory order during the appeal of the decision of the Division in due course. The court may have the power to review any decision, order or ruling of

the COMELEC, limits such power to a final decision or resolution of the COMELEC en banc, and does not extend to an interlocutory order issued by a Division of the COMELEC. Otherwise stated, the Court has no power to review on certiorari an interlocutory order or even a final resolution issued by a Division of the COMELEC. Where the Commission in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court. (Cagas v. COMELEC, G.R. No. 194139) Removal of Disqualification Plenary Pardon The phrase in the presidential pardon which declares that the person "is hereby restored to his civil and political rights" substantially complies with the requirement of express restoration of his right to hold public office, or the right of suffrage. Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to the executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of Congress to define crimes and prescribe the penalties for such crimes and the power of the President to grant executive clemency. All that the said provisions impart is that the pardon of the principal penalty does not carry with it the remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. It still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the President on the penalties imposed in accordance with law. (Risos-Vidal v. COMELEC, G.R. No. 206666) A whereas clause in a pardon which states that the person “publicly committed to no longer seek any elective position or office” does not make the pardon conditional. Whereas clauses do not form part of a statute because, strictly speaking, they are not part of the operative Page 367 of 479

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language of the statute. The whereas clause is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the pardon conditional or to make its effectivity contingent upon the fulfillment of the aforementioned commitment nor to limit the scope of the pardon. (Risos-Vidal v. COMELEC, G.R. No. 206666) Former President Estrada was granted an absolute pardon that fully restored all his civil and political rights, which naturally includes the right to seek public elective office. The wording of the pardon extended to him is complete, unambiguous, and unqualified. The fact that the pardon did not specify the specific rights restored does not mean that GMA did not intend to restore his right to suffrage. (Risos-Vidal v. COMELEC, G.R. No. 206666) The disqualification from running for public office due to libel shall be removed after service of the fiveyear sentence, which is counted from the date the fine is paid. (Ty-Delgado v. HRET, G.R. No. 219603) To resolve the tie, there shall be drawing of lots. Whenever it shall appear from the canvass that two or more candidates have received an equal and highest number of votes, or in cases where two or more candidates are to be elected for the same position and two or more candidates received the same number of votes for the last place in the number to be elected, the board of canvassers, after recording this fact in its minutes, shall by resolution, upon five days’ notice to all the tied candidates, hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates who have tied and shall proclaim as elected the candidates who may favored by luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of votes. The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof. Nothing in this section shall be construed as depriving a candidate of his right to contest the election. (OEC, §240.; Tugade v. COMELEC, G.R. No. 171063) POSTPONEMENT OF ELECTION When COMELEC Can Postpone an Election. When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political

subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect. (OEC, §5)

3. FAILURE OF ELECTION When COMELEC Can Declare a Failure of Election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. (OEC, §6) Thus: There is a failure to elect when nobody can be declared as a winner because the will of the majority has been defiled and cannot be ascertained. When Failure of Elections (In Any Polling Place) May Be Declared: (SNR) (1) Election was Suspended before the hour fixed by law for the closing of the voting (2) Election in any polling place was Not held on the date fixed (3) Elections Results in a failure to elect (after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof). (Carlos v. Angeles, G.R. No. 142907) Grounds: (V-F2AT) (a) Force majeure (b) Fraud (c) Violence Page 368 of 479

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(d) Terrorism (e) Analogous circ*mstances (Carlos v. Angeles, G.R. No. 142907)

CALL FOR SPECIAL ELECTION Under Section 6 of the OEC, the two (2) requirements for the holding of a special election are: (1) That there is a failure of elections and (2) That such failure would affect the results of the election. This “result of the election” means the net result of the election in the rest of the precincts in a given constituency, such that if the margin of a leading candidate over that of his/her closest rival in the latter precincts is less that the total number of votes in the precinct where there was a failure of election, then such failure would certainly affect “the result of the election.” (Lucero v. COMELEC and Ong, G.R. No. 113107) Fixing the date for Special Election: (a) it should not be later than 30 days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and (b) it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The first involves a question of fact. The second must be determined in the light of the peculiar circ*mstances of a case. (Pangandaman v. COMELEC, G.R. No. 134340, 1999) Thus: the holding of elections within the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered "reasonably close to the date of the election not held."

4. PRE-PROCLAMATION CONTROVERSY Definition of a Pre-Proclamation Controversy (1) A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233 (Election Returns are delayed, lost, and destroyed), 234 (Material Defects in

the Election Returns), 235 (Election Returns appear to be falsified or tampered) and 236 (Discrepancies in Election Returns) in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. (OEC, §241) (2) Under Republic Act No. 7166, providing for synchronized national and local elections, preproclamation controversies refer to matters relating to the preparation, transmission, receipt, custody and appearance of election returns and certificates of canvass. (3) Any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate or registered political party, or coalition. (Macabago v. COMELEC, G.R. No. 152163) Pre-Proclamation Issues The following shall be proper issues that may be raised in a pre-proclamation controversy: (1) Illegal composition or proceedings of the board of canvassers; Illegal Composition of the Board of Canvassers. — There is illegal composition of the BOC when, among other similar circ*mstances, any of the members do not possess legal qualifications and appointments. The information technology capable person required to assist the BOC by R.A 9369 shall be included as among those whose lack of qualifications may be questioned. (COMELEC Resolution No. 8804, March 22, 2010, §1) Illegal Proceedings of the Board of Canvassers. — There is illegal proceedings of the BOC when the canvassing is a sham or mere ceremony, the results of which are predetermined and manipulated as when any of the following circ*mstances are present: a) precipitate canvassing; b) terrorism; c) lack of sufficient notice to the members of the BOC's; d) Improper venue. (COMELEC Resolution No. 8804, March 22, 2010, §2) (2) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233 (Election Returns are delayed, lost, and destroyed), 234 (Material Defects in the Election Returns), 235 (Election Returns Page 369 of 479

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appear to be falsified or tampered) and 236 (Discrepancies in Election Returns) of this Code; (3) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (4) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. (OEC, §243) COMELEC Action COMELEC may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. (OEC, §242) All pre-proclamation controversies shall be heard summarily by the Commission after due notice and hearing, and its decisions shall be executory after the lapse of five days from receipt by the losing party of the decision of the Commission, unless restrained by the Supreme Court. (OEC, §246) Election Return A document in electronic and printed form directly produced by the counting or voting machine, showing the date of the election, the province, municipality and the precinct in which it is held and the votes in figures for each candidate in a precinct in areas where AES is utilized. (R.A. 8436, § 2(4), (as amended by R.A. 9369)) NOTE: This is the report on the votes PER PRECINCT that is transmitted to the board of canvassers for tabulation. Certificate of Canvass A document in electronic and printed form containing the total votes in figures obtained by each candidate in a city / municipality / district / province as the case may be. The electronic certificates of canvass shall be the official canvass results in the aforementioned jurisdictions. (R.A. 8436, §2(6), (as amended by R.A. 9369) NOTE: This is the report on the votes per city / municipality / district / province based on the Election Returns that is canvassed or tabulated at the local and national level. Statement of Votes A document containing the votes obtained by candidates in each precinct in a city/municipality. (R.A. 8436, §2(5), (as amended by R.A. 9369))

NOTE: This is another report generated at the canvassing stage containing the votes breakdown per precinct for national (e.g. party-list) and local (e.g. mayor) races. It supports the Certificate of Canvass that serves as the basis for proclamation. Although not specifically included in OEC, §243 the SC in Ramirez v. COMELEC, GR No. 122013, 26 March 1997 recognized that petition for the correction of entries in a Statement of Votes is a preproclamation controversy and can be filed directly with the COMELEC en banc, to wit: "By now it is settled that election cases which include preproclamation controversies must first be heard and decided by a division of the Commission — and a petition for correction of manifest error in the Statement of Votes, like SPC No. 95-198 is a preproclamation controversy — in none of the cases cited to support this proposition was the issue the correction of a manifest error in the Statement of Votes under 231 of the Omnibus Election Code (B.P. Blg. 881) or §15 of R.A. No. 7166. On the other hand, Rule 27, §5 of the 1993 Rules of the COMELEC expressly provides that preproclamation controversies involving, inter alia, manifest errors in the tabulation or tallying of the results may be filed directly with the COMELEC en banc.” Grounds for Pre-Proclamation Controversies: (1) Illegal composition or proceedings of the board of canvassers (a) Filed with the BOC or with COMELEC (b) Within 3 days from a ruling (if based on illegal proceedings), or as soon as the Board begins to act. (2) Irregularities in relation to the preparation, transmission, receipt, custody, and appreciation of election returns and certificates of canvass: (a) ERs are delayed, lost or destroyed (b) Material defects in the ERs (c) ERs appear to be tampered with or falsified (d) Discrepancies in the ERs (3) Canvassed returns are incomplete, contain material defects (a) ERs are delayed, lost, destroyed (i) In this case, the Board can use any of the authentic copies Page 370 of 479

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Or terminate canvass if the missing returns will not affect the results anyway

(b) Missing requisites (i) Board calls for members of the BEI to complete or correct the return. DO NOT EXCLUDE, if correctable (c) ERs are tampered, falsified, altered after these left the hands of BEI, not authentic, prepared under duress, force, intimidation, etc. (i) Resort to other ERs (ii) If all are tampered, can have ballot boxes reopened and counted (d) Discrepancies in other authentic copies of the returns or discrepancies in the votes of any candidate in words/figures – and these would affect results of the election (i) Order opening of ballot boxes for recount (4) ERs prepared under duress, threats, coercion, intimidation, obviously manufactured (a) “Obviously manufactured” According to the Court, when it follows the doctrine of statistical improbabilities or “Statistically improbable data”. (5) Substitute or fraudulent returns in controverted polling places are canvassed, and the results materially affect the standing of candidates. (OEC, §243) NOTE: Grounds for pre-proclamation controversies are exclusive. General Rule: COMELEC cannot go behind the face of an election return. It is beyond the jurisdiction of COMELEC to go beyond the face of the returns or investigate election irregularities. Exception: When there is prima facie showing that the ER is not genuine (e.g., as when several entries have been omitted). (Lee vs. COMELEC, G.R. No. 157004) Grounds For Material Defects: (1) Omission of name of candidates

(2) Omission of votes for candidates Material Defect v. Falsified/Tampered ERs HAVE BEEN MATERIAL DEFECT IN FALSIFIED/ THE ERs TAMPERED BOC needs authority BOC needs no prior from COMELEC to get permission from the copies of the other ERs COMELEC to get copies of the other ERs Jurisdiction: (1) Contested composition or proceedings of the board - May be initiated in the Board of canvassers or COMELEC. (2) Contested ERs - Should be brought in the 1st instance before the board of canvassers only. General Rule: When the Electoral Tribunal obtains jurisdiction, it precludes the COMELEC from exercising powers over pre-proclamation controversies. Exceptions: (PAPI-Q) (1) BOC was Improperly constituted (2) Proclamation was null and void (3) Quo warranto is not the proper remedy (4) What was filed was a Petition to annul a proclamation, and not quo warranto or election protest. (5) Election contest expressly made without prejudice to PPC or it was made Ad cautelam (cautionary). In exercising its powers and jurisdiction, as defined by its mandate to protect the integrity of elections, the COMELEC “must not be straight-jacketed by procedural rules in resolving election disputes.” (Violago v. COMELEC, G.R. No. 194143) Two Objection Rule - Submit oral objection and written objection simultaneously to BOC chairperson before ERs have been canvassed. There is substantial compliance even if the oral objection is filed first, then the written objection with evidence is submitted within 24 hours. However, in Marabur vs. COMELEC, the Court held that there is substantial compliance if despite the absence of a written objection, an offer of evidence is made within the 24-hour period. (Marabur vs. COMELEC, G.R. No. 169513) Summary Nature: • Pre-proclamation controversies shall be heard summarily by the COMELEC. Page 371 of 479

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Its decision shall be executory after 5 days from receipt by the losing party of the decision, unless restrained by the SC. (OEC, §246)

General Rule: Pre-proclamation cases are deemed terminated: (1) At the beginning of the term of the office involved and the rulings of the BOC concerned deemed affirmed. (2) This is without prejudice to the filing of a regular election protest by the aggrieved party. (Sarmiento v. COMELEC, G.R. No. 105628) Exceptions: Proceedings may continue if: (1) COMELEC determines that the petition is meritorious and issues an order for the proceedings to continue. (2) The SC issues an order for the proceedings to continue in a petition for certiorari. (Sarmiento v. COMELEC, G.R. No. 105628) Where a proclamation is null and void, the proclamation is no proclamation at all and the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation. (Federico v. COMELEC, G.R. No. 199612) But the remedy of filing a pre-proclamation case is still available after proclamation if the proclamation should have been suspended because of contested election returns. (Jainal vs. COMELEC, G.R. No. 174551) Grounds for Recount: (1) Material defects in the ERs (OEC, §234) (2) ERs are tampered or falsified (OEC, §235) (3) Discrepancies in the ERs (OEC, §236) When Recount is Possible: (1) COMELEC order BEI to conduct recount (2) Integrity and identity of ballot box is not violated (3) BEI ascertains that integrity of ballots in box preserved (4) BEI recounts and complete/correct returns NOTE: While these provisions are still in the Omnibus Election Code, they are deemed to have been superseded already by the Automated Election Law since any recount is no longer possible with the electronic transmission, counting, and consolidation of votes. The better answer is to file this as an Election Protest before the proper court or body. (ET Kaw) BACK TO TOC

In regular election contests, the general averment of fraud or irregularities in the counting of votes justifies the examination of the ballots and recounting of votes. This process of examination is the revision of the ballots pursuant to Section 6, Rule 20 of the 1993 COMELEC Rules of Procedure. The protests involved herein assailed the authenticity of the election returns and the veracity of the counting of the ballots. In that regard, the ballots themselves are the best evidence. The only means to overcome the presumption of legitimacy of the election returns is to examine and determine first whether the ballot boxes have been substantially preserved in the manner mandated by law. Hence, the necessity to issue the order of revision. NOTE: The COMELEC did not commit grave abuse of discretion when it ordered the revision of 44 ballots with the Senate Electoral Tribunal without first resolving whether 16 of those 44 ballots should be included in the revision. (Tolentino v. COMELEC, G.R. No. 187958) Statistically Improbable Data (1) Uniformity of tally in favor of candidates belonging to 1 party. (2) Systematic blanking out of candidates belonging to another party. Pre-Proclamation Controversies for National Elective Offices. As a general rule, there are no pre-proclamation issues for national elective offices, BUT there are now recognized exceptions under RA 9369 amending RA 7166 as applied and ruled by the Supreme Court in Pimentel III v. COMELEC (GR No. 178413, 13 March 2008), to wit: “Indeed, this Court recognizes that by virtue of the amendments introduced by Republic Act No. 9369 to Sections 15 and 30 of Republic Act No. 7166, preproclamation cases involving the authenticity and due execution of certificates of canvass are now allowed in elections for President, Vice-President, and Senators. The intention of Congress to treat a case falling under Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, as a pre-proclamation case is apparent in the fourth paragraph of the said provision which adopts and applies to such a case the same procedure provided under Sections 17, 18, 19 and 20 of Republic Act No. 7166 on pre-proclamation controversies. In sum, in elections for President, Vice-President, Senators and Members of the House of Representatives, the general rule still is that preproclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or certificates of Page 372 of 479

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canvass are still prohibited. As with other general rules, there are recognized exceptions to the prohibition, namely: (1) correction of manifest errors; (2) questions affecting the composition or proceedings of the board of canvassers; and (3) determination of the authenticity and due execution of certificates of canvass as provided in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369.” “Manifest Errors” — Matters regarding the preparation, transmission, receipt, custody, and appreciation election returns shall be brought, in the first instance, before the boards of canvassers, not the COMELEC. (Fernandez vs. COMELEC, G.R. No. 171821) Thus, to summarize: General Rule: Pre-proclamation cases are NOT allowed in elections for the President, Vice President, Senator and members of the House of Representatives.

adequate remedy in the ordinary course of law. (Bulilis v. Nuez, G.R. No. 195953) COMELEC Partial Proclamation Notwithstanding the pendency of any preproclamation controversy, the Commission may, motu proprio or upon the filing of a verified petition and after due notice and hearing, order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. (OEC, §247)

5. ELECTION PROTEST Election Contests Election Contests refer to Election Protests or Petitions for Quo Warranto. [Sec. 3(c), AM. No. 074-15-SC] Kinds Of Election Contests: (1) Election Protest (2) Quo Warranto

Exceptions: (1) Manifest Errors in the ERs or COCs may be corrected motu proprio or upon written complaint of any interested person. (2) Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the Commission in accordance with §19. (R.A. No. 7166)

Withdrawal of nomination and substitution by another nominee is neither an election protest nor an action for quo warranto. Petitioner correctly brought before the Supreme Court this special civil action for certiorari under Section 7 of Article IX-A of the 1987 Constitution, notwithstanding the proclamation of, and assumption of office by, the substitute nominee. (Lokin, Jr. v. COMELEC G.R. No. 179431-32/180443)

Manifest Errors: (1) Mistake in adding (2) Mistake in copying of figures from ER or Statement of Votes (3) ERs from non-existent precinct canvassed (4) Copy of ER tabulated more than twice (5) 2 or more copies of ER and COC in 1 precinct counted separately

Election Protests (1) For provincial, regional, and city elective officials. A petition contesting the elections or returns of an elective regional, provincial, or city official shall be filed with the Commission by any candidate who was voted for in the same office and who received the second of third highest number of votes or, in a multi-slot position, was among the next four candidates following the last ranked winner duly proclaimed, as reflected in the official results of the election contained in the Statement of Votes. The party filing the protest shall be designated as the protestant; the adverse party shall be known as the protestee. (COMELEC Resolution N0. 8804, §1, Rule 6) (2) For municipal elective officials. Election protest refers to an election contest involving the election and returns of municipal elective officials, grounded on fraud or irregularities committed in the conduct of the elections, i.e., in the casting

The grounds for manifest errors are inclusive. The allowable margin of error is 60%. It suspends the running of the period within which to file an election protest or quo warranto proceeding. Notwithstanding the pendency of any preproclamation controversy, the Commission may summarily order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. An aggrieved party may file a petition for certiorari with the COMELEC whenever a judge hearing an election case has acted without or in excess of his jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and

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and the counting of the ballots, in the consolidation of votes and in the canvassing of returns, not otherwise classified as a pre-proclamation controversy cognizable by the COMELEC. The issue is who obtained the plurality of valid votes cast. (2010 Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal Officials, A.M. No. 10-4-1-SC, April 27, 2010, §3 (u), Rule 1) A petition contesting the election or returns for an elective municipal office shall be filed with the proper Regional Trial Court by an candidate who was voted for the same office and who received the second or third-highest number of votes or, in a multi-slot position, was among the next four candidates following the last-ranked winner duly proclaimed, as reflected in the official results of the election contained in the Statement of Votes by Precinct. The party filing the protest shall be designated as the protestant; the adverse party shall be known as the protestee. (2010 Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal Officials, A.M. No. 10-4-1SC, April 27, 2010, §4, Rule 1) (3) For barangay elective officials. Election Protest refers to an election contest relating to the election and returns of elective officials, grounded on frauds or irregularities in the conduct of the elections, the casting and counting of the ballots and the preparation and canvassing of returns. The issue is who obtained the plurality of valid votes cast. (AM. No. 07-4-15-SC §3(d)) NOTE: The failure or omission of protestant to raise the question of identical handwriting or of impugning the validity of the ballots on that ground, resulting in the invalidation of 466 ballots for petitioner, does not preclude respondent COMELEC from rejecting them on that ground. Unlike an ordinary suit, an election protest is of utmost public concern. The rights of the contending parties in the position aspired for must yield to the far greater interest of the citizens in the sanctity of the electoral process. This being the case, the choice of the people to represent them may not be bargained away by the sheer negligence of a party, nor defeated by technical rules of procedure. Thus, COMELEC cannot just close its eyes to the illegality of the ballots brought before it, where the ground for the invalidation was omitted by the protestant. (Arao v. COMELEC, GR No. 103877)

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Jurisdiction Over Election Contests (1) PRESIDENTIAL ELECTORAL TRIBUNAL For President, Vice President. The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or VicePresident, and may promulgate its rules for the purpose. (PHIL. CONSTI. §4, art. VII) (2) SENATE ELECTORAL TRIBUNAL (SET) and HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET) For Senators and Members of the HoR. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. (PHIL. CONSTI. §17, art. VI) (3) COMMISSION ON ELECTIONS (COMELEC) ORIGINAL EXCLUSIVE: For Provincial and City Elective Officials; APPELLATE: For Municipal and Barangay Elective Officials. COMELEC shall exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (PHIL. CONST. §2(2), art. IXC; OEC, §249) COMELEC Jurisdiction Over Election Contests: (1) Original Jurisdiction over contests relating to elections, returns, and qualifications of all elective: (a) Regional (b) Provincial (c) City officials Page 374 of 479

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(2) Appellate Jurisdiction over contests involving: (a) Elective Municipal officials decided by trial courts of general jurisdiction (b) Elective Barangay officials decided by trial courts of limited jurisdiction (c) COMELEC may issue extraordinary writs of certiorari, prohibition and mandamus (4) REGIONAL TRIAL COURTS (RTC) For Municipal Elective Officials. RTC shall have exclusive original jurisdiction over all election contests involving elective municipal officials. (AM. No. 07-4-15-SC, §1, Rule 2) (5) METROPOLITAN TRIAL COURTS (MeTC)/MUNICIPAL TRIAL COURTS (MTC). For Barangay Elective Officials (Including SK as held in Fernandez v. COMELEC, GR No. 176296, 30 June 2008). MeTC/MTC shall have exclusive original jurisdiction over all election contests involving elective barangay officials. (AM. No. 07-4-15-SC, §2, Rule 2) A petition for mandamus will lie against the Speaker of the House and the House Secretary General for not performing their ministerial duties to administer the oath of the second placer and enter his name in the Roll of Members of the House of Representatives, when the winner’s COC had been cancelled due to ineligibility. (Velasco v. Belmonte, G.R. 211140) Pre-proclamation Contest

Controversy

PRE-PROCLAMATION CONTROVERSY Before proclamation of candidate Jurisdiction of COMELEC is administrative or quasijudicial • •

Election

ELECTION CONTEST After proclamation of candidate Jurisdiction of COMELEC is quasijudicial

Only real parties in interest can file and pursue election protests (e.g. candidate of the same position). Even if it was the 2nd placer who filed the election protest, the 3rd placer may still possibly win. NOTE: The case of presidential protest cases, only two persons, the 2nd and 3rd placers, may contest the election. (Poe vs. Macapagal-Arroyo, PET Case No. 003)

NOTE: Special rule for PET: Only the 2nd or 3rd placer may file the protest Requisites for an Election Protest (1) Filed by candidate who has filed a COC and has been voted upon for the same office. (2) Filed within 10 days from proclamation of results (a) Period to file EP is suspended during pendency of PPC (b) A counter-protest must also comply with the reglementary period (OEC, §254) (3) On grounds of: (a) election fraud/terrorism, and (b) irregularities or illegal acts before, during, or after casting and counting of votes (Espaldon v. COMELEC, G.R. No. L78987) Additional Requirements: (1) Payment of docket fee (2) Certificate of Non-Forum Shopping NOTE: Failure to pay is ground to dismiss the case. (Banaga Jr. v. Commission on Elections, G.R. No. 134696, Jul. 31, 2000) House of Representatives Electoral Tribunal Jurisdiction Over Election Contests. The House of Representatives has the jurisdiction to question the qualification of the nominees of party-list organizations. Although party list organizations are voted for in the elections, still it is not the organizations which sit and become members of the House of Representatives but their nominees. Subsequently, Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all contests relating, among others, to the qualifications of the members of the House. Thus, since party list nominees are considered as “elected members” of the House, the HRET has jurisdiction to hear and pass upon their qualifications. (Abayon v. HRET, G.R. No. 189466) General Rule: Ballots are the best and most conclusive evidence in an election contest where the correctness of the number of votes of each candidate is involved. (Delos Reyes v. COMELEC, G.R. No. 170070) Exception: Election returns are the best evidence when the ballots are lost, destroyed, tampered or fake. Execution Pending Appeal: (1) Public interest is involved or will of the electorate Page 375 of 479

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(2) Length of time that the election contest has been pending (3) Shortness of the remaining portion of the term of the contested office. (Pecson v. COMELEC, G.R. No. 182865) NOTE: A combination of 2 or more will suffice to allow execution pending appeal, but shortness of the remaining period alone is not a ground for execution pending appeal. (Laubati v. Commission on Elections, G.R. No. 128473) General Rule: The COMELEC cannot proclaim as winner the candidate who obtains the 2nd highest number of votes in case the winning candidate is ineligible or disqualified. When a winner is declared ineligible, the candidate who finished 2nd cannot assume the position. (Quizon v. COMELEC, G.R. No. 177927) Exception: (1) The one who obtained the highest number of votes is disqualified, and (2) The electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. (Pundaodaya v. COMELEC, G.R. No. 179313) A candidate who was elected but was later disqualified for failing to meet the residency requirement was never a valid candidate from the very beginning, and was merely a de facto officer. The eligible candidate who garnered the highest number of votes must assume the office. The rule on succession in the Local Government Code does not apply. (Jalosjos v. COMELEC, G.R. No. 193314; Ty-Delgado v. HRET, G.R. No. 219603) Abandonment — A protestant who runs for another office is deemed to have abandoned his protest. This is especially true in a case where the protestant pending the election protest, ran, won, assumed the post and discharged the duties as such. (Idulza v. COMELEC, G.R. No. 160130) Mere filing and allegations of a pre-proclamation controversy will not suffice. The grounds that must support a pre-proclamation controversy are limited by the Omnibus Election Code (under Sec. 243). The enumeration is restrictive and exclusive. Thus, in the absence of any clear showing or proof that the election returns canvassed are incomplete or contain material defects; appear to have been tampered with, falsified or prepared

under duress; and/or contain discrepancies in the votes credited to any candidate, which would affect the result of the election, a petition cannot be properly considered as a pre-proclamation controversy. If the petition does not qualify as a pre-proclamation controversy, it could not have suspended the ten-day statutory period for the filing of an election protest. (Abayon v. COMELEC) Disposition of Election Protests (1) Allegations in election protests must be specific. The results of an election may be challenged through different legal vehicles: first, failure of election cases; second, pre-proclamation petitions; and third, election contests. These have substantive and procedural differences, with varying remedies, but what remains consistent across all modalities is the requirement of specificity. Particularity on one’s allegations, grounds, and bases cuts across all mechanisms for challenging election outcomes and must be present in all actions, regardless of the mode. The Court stressed in Corvera v.Savillo that a protest lacking in detail as to the “acts or omissions complained of showing the electoral frauds, anomalies, or irregularities” should be struck down for being insufficient in form and substance. Bare claims of “glitches,” strange voting patterns, and discrepancies in the audit, without more, were found to be hollow accusations by a losing candidate unable to come to terms with defeat. In so ruling, the Court affirmed the need for strict compliance with the specificity requirement. Corvera follows a line of jurisprudence affirming that general and sweeping allegations of election fraud and irregularities warrant a protest's dismissal: Peña v. House of Representatives Electoral Tribunal, Aguillo v. Commission on Elections, and Lloren v. Commission on Elections. (2) In election protests before this Tribunal (i.e. PET), the mandatory ceiling in designating pilot provinces is three. Failure to show substantial recovery of votes in these pilot provinces entails the protest's dismissal. To stress, this Tribunal's Rules directs the forthwith dismissal of an election protest if, upon examining the ballots and proof in the three provinces exemplifying the alleged fraud or irregularity, this "Tribunal is convinced that . . . the protestant or counter-protestant will most probably fail to make out [their] case, without further consideration of the other provinces mentioned in the protest." This is clear and is not susceptible to any other interpretation.

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(3) PET applied the requisites in Abayon. Per Abayon, the threshold of evidence to prove annulment of elections consists of a showing that: (a) The illegality of the ballots must affect more than fifty percent (50%) of the votes cast on the specific precinct or precincts sought to be annulled, or in case of the entire municipality, more than fifty percent (50%) of its total precincts and the votes cast therein; (b) It is impossible to distinguish with reasonable certainty between the lawful and unlawful ballots; and (c) There must be clear, convincing, and strong evidence showing that the protestee is the one responsible for the unlawful acts complained of. To reiterate, "the power to annul an election should be exercised with the greatest care as it involves the free and fair expression of the popular will. It is only in extreme cases of fraud and under circ*mstances which demonstrate to the fullest degree a fundamental and wanton disregard of the law that elections are annulled, and then only when it becomes impossible to take any other step." What this Tribunal faces today is not an extreme case of fraud that deserves further consideration. Protestant failed to make out his case. There is no substantial recovery of votes in the pilot provinces that he himself had designated. To entertain the third cause of action is to risk frustrating the valid exercise of the nation’s democratic will and subject it to the endless whims of a defeated candidate. (Marcos v. Robredo, PET Case No. 005)

6. QUO WARRANTO Quo Warranto Quo Warranto under the Omnibus Election Code refers to an election contest relating to the qualifications of an elective official on the ground of ineligibility or disloyalty to the Republic of the Philippines. The issue is whether respondent possesses all the qualifications and none of the disqualifications prescribed by law. (AM. No. 07-415-SC, §3(e)) NOTE: This is different from Quo Warranto under Rule 66: “Section 1. Action by Government against individuals. — An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; o (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.” Requisites of Quo Warranto (VID 10): (1) Filed by any registered Voter in the constituency; Grounds: (a) Ineligibility (b) Disloyalty to the Republic of the Philippines (i.e. having a green card) (2) Within 10 days from proclamation of results (OEC, §253) General Rule: When proclaimed officer was disqualified by quo warranto, 2nd placer cannot be proclaimed winner. Exception: When the one who got the highest votes has been disqualified and the electorate is fully aware of this fact – but they still voted for him. Execution pending appeal is allowed but must be for urgent reasons. Allowable Reasons for Execution Pending Appeal: (1) Public interest involved (2) Shortness of remaining term (3) Length of time that the contest is pending Petition to Deny Due Course/ Cancel CoC (Before Elections) v. Quo Warranto (After Election Results) PETITION TO DENY PETITION FOR QUO DUE COURSE/ WARRANTO CANCEL CoC (AFTER (BEFORE PROCLAMATION) ELECTIONS) 1. The qualifications for elective office are misrepresented in the certificate of candidacy 2. The proceedings must be initiated before the elections.

May be brought on the basis of two grounds a. ineligibility or b. disloyalty to the Republic of the Philippines 2. must be initiated within ten days after the Page 377 of 479

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proclamation of the election results. A candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office.

Quo Warranto v. Election Protest QUO WARRANTO

ELECTION PROTEST

Strictly speaking, it is not a contest. It is a proceeding to unseat an ineligible person from office. Any voter

It is a contest between the winning candidate and the defeated candidate Only by a candidate who has duly filed a COC to the same office and has been voted for GROUNDS: Election fraud Irregularities in the casting and counting of votes or in the preparation of the ER The protestee may be unseated and the protestant may be installed into the office vacated.

GROUNDS: Disloyalty Ineligibility

The respondent may be unseated, but the petitioner may or may not be installed into the office vacated.

a. COMELEC When to file a quo warranto case before COMELEC? Any voter contesting the election of any regional, provincial or city official on the ground of ineligibility or of disloyalty to the Republic of the Philippines may file a petition for quo warranto with the Electoral Contests Adjudication Department. The code also provides that a petition for quo warranto may be filed within ten (10) days from the date the respondent is proclaimed. (Sections 1 and 2, Rule 21 of COMELEC Rules of Procedure)

b. Senate Electoral Tribunal (SET) When to file a quo warranto case before SET? A verified petition for quo warranto contesting the election of a Member of the Senate on the ground of ineligibility, or disloyalty to the Republic of the

Philippines, shall be filed by any registered voter within fifteen (15) days after assumption of office of the respondent. (Rule 18, paragraph 1, 2020 Rules of the Senate Electoral Tribunal) NOTE: A petition for quo warranto on the ground of ineligibility based on citizenship may be filed at any time during the respondent's tenure. A petition for quo warranto may also be filed at any time for grounds that occur during the respondent's tenure. (Rule 18, paragraph 1, 2020 Rules of the Senate Electoral Tribunal)

c. House of Representatives Electoral Tribunal (HRET) When to file a quo warranto case before HRET? A verified petition for quo warranto on the ground of ineligibility may be filed by any registered voter of the congressional district concerned, or any registered voter in the case of party-list representatives, within fifteen (15) days from June 30 of the election year. (As amended per HRET Resolution No. 16, Series of 2018 approved on September 20, 2018) NOTE: A petition for quo warranto may be filed by any registered voter of the district concerned against a Member of the House of Representatives, on the ground of citizenship, at any time during said Member's tenure. A petition for quo warranto may also be filed at any time for grounds that occur during the term of office of the winning candidate. (Rule 18, 2015 Rules of House of Representatives Electoral Tribunal) HRET may only assume jurisdiction after the winning candidate shall have been duly proclaimed, has taken his oath of office and has assumed the functions of the office. Thus, once these processes have taken place and the assumed officed as a Member of the House of Representative, the COMELEC’s jurisdiction over the election contest relating to his election, returns and qualifications ends, and the HRET’s own jurisdiction begins. (Vinzons-Chato v. COMELEC, G.R. No. 172131)

7. RECALL Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper Page 378 of 479

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(Garcia

Requisites of Recall (1) The power of recall shall be exercised by the registered voters of the unit to which the local elective official subject to such recall belongs. (2) Recall shall be validly initiated only upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned based on the election in which the local official sought to be recalled was elected. (Section 54, Chapter 3, The Local Government Code of 1983)

E. PROSECUTION FOR ELECTION OFFENSES [Exclude: Penal Provisions] Aspects of an election offense Criminal aspect: which involves the ascertainment of the guilt or innocence of the accused candidate. It entails a full-blown hearing and the quantum of proof required to secure a conviction beyond reasonable doubt. Electoral aspect: determination of whether the offender should be disqualified from office. This is done through an administrative proceeding which is summary in character and requires only preponderance of evidence. CONSTITUTIONAL RULE. COMELEC has the power to investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (Sec. 2(6), Art. IX-C, 1987 Constitution) The grant to COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomitant authority to investigate and prosecute election offenses is not without compelling reason. This is to insure the free, orderly, honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. (De Jesus v. People, G.R. No. L-61998)

reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of elections. (Corpuz v. Tanodbayan, G.R. No. L62075) The power to prosecute necessarily involves the power to determine who shall be prosecuted, and the corollary right to decide whom not to prosecute. Evidently, this power also includes the right to determine under which laws prosecution will be pursued. (Romualdez v. COMELEC, G.R. No. 167011) It is clear that aside from the adjudicatory or quasi-judicial power of the COMELEC to decide election contests and administrative questions, it is also vested the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the Code before the competent court. Thus, when the COMELEC, through its duly authorized law officer, conducts the preliminary investigation of an election offense and upon a prima facie finding of a probable cause, files the information in the proper court, said court thereby acquires jurisdiction over the case. (People v. Delgado, G.R. Nos. 93419-32) CONCURRENT WITH THE DOJ/PROSECUTING ARMS OF THE GOVERNMENT. Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No. 9369, which provides: The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same.” The Commission shall have the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. [Sec. 1, Rule 34, COMELEC Rules of Procedure]

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HOWEVER, the Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are given continuing authority, as deputies of the Commission, to conduct preliminary investigation of complaints involving election offenses under the election laws which may be filed directly with them, or which may be indorsed to them by the Commission or its duly authorized representatives and to prosecute the same. Such authority may be revoked or withdrawn any time by the Commission whenever in its judgment such revocation or withdrawal is necessary to protect the integrity of the Commission, promote the common good, or when it believes that successful prosecution of the case can be done by the Commission. [Sec. 2, Rule 34, COMELEC Rules of Procedure] Initiation of complaint for election offenses may be done motu proprio by the Commission, or upon written complaint by any citizen of the Philippines, candidate, registered political party, coalition of political parties or organizations under the partylist system or any accredited citizens arms of the Commission. [Sec. 3, Rule 34, COMELEC Rules of Procedure] If the complaint is initiated motu proprio by the Commission, or is filed with the Commission by any aggrieved party, it shall be referred to the Law Department for investigation. Upon direction of the Chairman of the Commission, the preliminary investigation may be delegated to any lawyer of said Department, or to any of the Regional Election Directors or Provincial Election Supervisors, or any lawyer of the Commission. [Sec. 5, Rule 34, COMELEC Rules of Procedure] Thus, the Supreme Court in Arroyo v. DOJ laid down the following rules: (1) No Legal Impediment in the creation of a COMELEC-DOJ Joint Committee and FactFinding Team. It is, therefore, not only the power but the duty of both the Comelec and the DOJ to perform any act necessary to ensure the prompt and fair investigation and prosecution of election offenses. Pursuant to the above constitutional and statutory provisions, and as will be explained further below, we find no impediment for the Comelec and the DOJ to create the Joint Committee and FactFinding Team for the purpose of conducting a thorough investigation of the alleged massive electoral fraud and the manipulation of election results in the 2004 and 2007 national elections relating in particular to the presidential and senatorial elections. BACK TO TOC

(2) No EPC Violation. Unlike the matter addressed by the Court's ruling in Biraogo v. Philippine Truth Commission of 2010, Joint Order No. 001-2011 cannot be nullified on the ground that it singles out the officials of the Arroyo Administration and, therefore, it infringes the equal protection clause. The Philippine Truth Commission of 2010 was expressly created for the purpose of investigating alleged graft and corruption during the Arroyo Administration since Executive Order No. 1 77 specifically referred to the "previous administration"; while the Joint Committee was created for the purpose of conducting preliminary investigation of election offenses during the 2004 and 2007 elections. (3) No Abdication by COMELEC of Constitutional Mandate to Prosecute Election Offenses. While the composition of the Joint Committee and Fact-Finding Team is dominated by DOJ officials, it does not necessarily follow that the Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure. This shows that the Comelec, though it acts jointly with the DOJ, remains in control of the proceedings. In no way can we say that the Comelec has thereby abdicated its independence to the executive department. The text and intent of the constitutional provision granting the Comelec the authority to investigate and prosecute election offenses is to give the Comelec all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections. The Comelec should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this Court should not interfere. Thus, Comelec Resolution No. 9266, approving the creation of the Joint Committee and Fact-Finding Team, should be viewed not as an abdication of the constitutional body's independence but as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful and credible elections. (Arroyo v. Department of Justice, G.R. Nos. 199082, 199085 & 199118, [September 18, 2012], 695 PHIL 302429) ————- end of topic ———— Page 380 of 479

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A. PUBLIC CORPORATIONS

IV. LOCAL GOVERNMENT TOPIC OUTLINE UNDER THE SYLLABUS A. PUBLIC CORPORATIONS 1. Concept; Distinguished from GovernmentOwned or Controlled Corporations 2. Classifications a. Quasi-corporations b. Municipal Corporations B. PRINCPLES OF LOCAL AUTONOMY C. AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT D. LOCAL GOVERNMENT UNIT (LGU) 1. Powers 2. Liability of LGUs 3. Settlement of Boundary Disputes 4. Vacancies and Succession of Officials 5. Recall 6. Term Limits

Local

Public Corporations Public Corporations are “other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law.” (Article 44, Civil Code) Such corporations are governed by the laws creating or recognizing them. (Art. 45, Civil Code; Boy Scouts of the Philippines v. Commission on Audit, G.R. No. 177131, 2011) These [public] corporations are treated by law as agencies or instrumentalities of the government which are not subject to the tests of ownership or control and economic viability but to different criteria relating to their public purposes/interests or constitutional policies and objectives and their administrative relationship to the government or any of its Departments or Offices. (Boy Scouts of the Philippines v. Commission on Audit, GR No. 177131, 7 June 2011)

1. CONCEPT; DISTINGUISHED FROM GOCCS Definition of a GOCC Government-Owned or -Controlled Corporation (GOCC) - refers to any agency organized as a stock or nonstock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government of the Republic of the Philippines directly or through its instrumentalities either wholly or, where applicable as in the case of stock corporations, to the extent of at least a majority of its outstanding capital stock: Provided, however, That for purposes of this Act, the term "GOCC" shall include GICP/GCE and GFI as defined herein. (GOCC Governance Act of 2011, Republic Act No. 10149, [June 6, 2011]) Chartered GOCC refers to a GOCC, including Government Financial Institutions, created and vested with functions by a special law. [Section 3(f), Republic Act No. 10149, GOCC Governance Act of 2011] Non-chartered GOCC refers to a GOCC organized and operating under Batas Pambansa Bilang 68, or "The Corporation Code of the Philippines." (Section 3(p), Republic Act No. 10149, GOCC Governance Act of 2011)

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Attributes of a GOCC Three attributes make an entity a GOCC: (1) organization must be stock or non-stock; (2) its function must be public in character; and (3) the corporation must be owned by the government. Possession of all three attributes is necessary to deem an entity a GOCC. (Funa vs. MECO, G.R. No. 193462, 2014) Stock Corporations Two requisites must concur before one may be classified as a stock corporation: (1) that it has capital stock divided into shares; and (2) that it is authorized to distribute dividends and allotments of surplus and profits to its stockholders. Both requisites must be present. Non-stock corporations. No distribution of any part of their income to the corporation’s members. (Philippine Fisheries Development Authority v. Central Board, G.R. No. 178030, 2010)

Public Corporations vs. GOCCs Corporations which are not considered Government-owned and controlled are not ipso facto private corporations. Public corporations are treated by law as agencies or instrumentalities of the government which are not subject to the tests of ownership or control and economic viability but to different criteria relating to their public purposes/interests or constitutional policies and objectives and their administrative relationship to the government or any of its departments or offices.

2. CLASSIFICATIONS a. Quasi-Public Corporations Quasi-public corporations are private corporations that render public service, supply public wants, or pursue other eleemosynary objectives. It must be stressed that a quasi-public corporation is a species of private corporations, but the qualifying factor is the type of service the former renders to the public: if it performs a public service, then it becomes a quasi-public corporation. (Philippine Society for the Prevention of Cruelty to Animals v. Commission on Audit, GR No. 169752, 25 September 2007 citing Ruperto G. Martin, Public Corporations 1-3 (1983))

b. Municipal Corporations A municipal government or municipal corporation is a government entity recognized, supported, and utilized by the National Government as a part of its government machinery and functions. It actually functions as an extension of the national government. (Surigao Electric Co, Inc. v. Municipality of Surigao, G.R. No. L-22766)

1) Elements (1) (2) (3) (4)

legal creation; corporate name; inhabitants; and place or territory (Public Corporations, Ruperto G. Martin, 1985).

2) Nature and Functions Dual Nature of Municipal Corporations (1) Governmental: A governmental subdivision that exercises by delegation a part of the sovereignty of the State. (2) Quasi-Private: Stands for the community in the administration of local affairs wholly beyond the sphere of public purposes for which its governmental powers are conferred. De Facto Municipal Corporations Municipal corporations may exist by prescription where it is shown that the community has claimed and exercised corporate powers, with the knowledge and acquiescence of the legislature, and without interruption or objection for a period long enough to afford title by prescription. (Camid v. Office of President, G.R. No. 161414, 2005). Municipal Corporation Proper An LGU is a public office, a public corporation, and is classified as a municipal corporation proper. (Public Corporations, Ruperto G. Martin, 1985). Municipal Corporation Proper or Local Government may only be created by law, through a legislative act. The President or the Executive Branch of Government has no power to create local governments. (Camid vs. Office of the President, G.R. No. 161414, 2005)

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3) Requisites for Creation, Conversion, Division, Merger or Dissolution Constitutional Rule and Requirements No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. [Sec. 10, Art. X] How are LGUs created, divided, merged, abolished? A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code. [Sec. 6, LGC] Creation and Conversion of LGUs The creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: (a) Income. - It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned; (b) Population. - It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and (c) Land Area. - It must be contiguous, unless it comprises two or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of

Environment and Natural Resources (DENR). [Sec. 7, LGC] Division and Merger of LGUs Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, That the income classification of the original local government unit or units shall not fall below its current classification prior to such division. The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein. [Sec. 8, LGC] Abolition of LGUs A local government unit may be abolished when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sangguniang concerned, as the case may be. The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged. [Sec. 9, LGC] Plebiscite Requirement No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date. [Sec. 10, LGC] NOTE: This is a constitutional requirement as well. The Three-Factor Test. The Court has considered three key factors in determining whether an LGU is a "political unit directly affected" by an LGU change or conversion: territorial alteration, political effects, and Page 384 of 479

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economic effects. (Del Rosario v. Commission on Elections, G.R. No. 247610, [March 10, 2020]) Creation of Province (1) By an Act of Congress (By law) (2) Approval by a majority of the votes cast in a plebiscite:

2011 Decision • No reason not to include province in the exception; IRR meant to correct oversight. • Congress breathed life into exemption by enacting RA 9355. • Primordial criterion is economic viability -- AAI of PhP82.7 M is 4X more than required.

REMEMBER: (a) In the LGU unit or units directly affected. (b) Shall be held within 120 days from its effectivity.

ALSO: The creation thereof shall not reduce the land area, population and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. [Sec. 461, LGC]

(3) Has average annual income, as certified by the Department of Finance, of not less than Php20 Million based on 1991 constant prices.

Creation of City (1) By an Act of Congress (By law) (2) Approval by a majority of the votes cast in a plebiscite:

NOTE: The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

REMEMBER: (a) In the LGU unit or units directly affected. (b) Shall be held within 120 days from its effectivity.

(4) Has either of the following requisites: (a) [Land Area] A contiguous territory of at least 2,000 square kilometers, as certified by the Land Management Bureau; OR REMEMBER: The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. NOTE: There is no provision on the exception to the land area requirement (i.e. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands) similar to creations of municipality and component city. However, Navarro v. Ermita provided a jurisprudential exception. (b) [People] A population of not less than 250,000 inhabitants, as certified by the National Statistics Office. Navarro v. Ermita: 2010 Decision • Exemption to the land requirement found in the IRR not in the law; hence, void. • Population must be certified by the NSO (in this case it wasn’t).

(3) Has a municipality or a cluster of barangays that may be converted. (4) Has a locally generated average annual income, as certified by the Department of Finance, of at least PhP100 Million for the last two (2) consecutive years based on 2000 constant prices; (RA 9009) NOTE: • The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income. • IRA included in the computation as per Alvarez v. Guingona. (5) Has either of the following requisites: (a) [Land Area] A contiguous territory of at least 100 square kilometers, as certified by the Land Management Bureau; OR REMEMBER: • The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. • The territory need not be contiguous if it comprises two (2) or more islands. Page 385 of 479

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(b) [People] A population of not less than 150,000 inhabitants, as certified by the National Statistics Office. NOTE: Thus, a component city can be either of the following: • PhP100M income + 100 square kilometers land area; OR • PhP100M income + 150K inhabitants; OR • PhP100M income + 100 square kilometers land area + 150K inhabitants ALSO: The creation thereof shall not reduce the land area, population and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. [Republic Act No. 9009, amending Section 450 of the Local Government Code of 1991] Creation of Highly Urbanized City (1) By Presidential declaration REMEMBER: (a) Within thirty (30) days after city shall have met the minimum requirements; (b) Upon proper application; and (c) Ratification in a plebiscite by the qualified voters therein.

(3) Has an average annual income, as certified by the Provincial Treasurer, of at least PhP2.5 Million for the last two (2) consecutive years based on 1991 constant prices; NOTE: • The average annual income shall include the income accruing to the general fund of the municipality concerned, exclusive of special funds, transfers and non-recurring income. • IRA included in the computation as per Alvarez v. Guingona. (4) A population of not less than 25,000 inhabitants, as certified by the National Statistics Office (= at least 25,000 inhabitants); AND (5) A contiguous territory of at least 50 square kilometers, as certified by the Land Management Bureau;

(2) Any component city (3) Minimum population of 200,000 inhabitants, as certified by the National Statistics Office.

REMEMBER: • The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. • The territory need not be contiguous if it comprises two (2) or more islands. [Section 442 of the Local Government Code of 1991]

NOTE: • By requiring 200K inhabitants, law has effectively selected/chosen population over land area requirement; thus, okay even if land area less than 100 square km.

ALSO: The creation thereof shall not reduce the land area, population or income of the original municipality or municipalities at the time of said creation to less than the minimum requirements prescribed herein.

(4) Latest annual income of at least PhP50 Million based on 1991 constant prices, as certified by the city treasurer. [Section 452 of the Local Government Code of 1991]

Creation of Barangay (1) By law or by an ordinance Ordinance: (i) Sangguniang Panglungsod; or (ii) Sangguniang Panlalawigan with recommendation of Sangguniang Bayan

Creation of Municipality (1) By an Act of Congress (By law) (2) Approval by a majority of the votes cast in a plebiscite: REMEMBER: • In the LGU unit or units directly affected. • Shall be held within 120 days from its effectivity. BACK TO TOC

(2) Population of at least 2,000 inhabitants as certified by the National Statistics Office. NOTE: At least 5,000 inhabitants requirement for: (i) cities and municipalities within Metro Manila; (ii) other metropolitan political subdivisions; or (iii) HUC. Page 386 of 479

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That the creation thereof shall not reduce the population of the original Barangay or Barangays to less than the minimum requirement prescribed herein. (3) Contiguous territory only NOTE: The territory need not be contiguous if it comprises two (2) or more islands. [Section 386 of the Local Government Code of 1991] (4) Majority of the votes cast in a plebiscite in the political units directly affected. (Section 10, Article X, 1987 Constitution) NOTE: Barangay creation has no income requirement and no land area requirement.

B. PRINCIPLES OF LOCAL AUTONOMY 1. CONSTITUTIONAL RULES AND PRINCIPLES (a) The State shall ensure the autonomy of local governments. (Section 25, Article II, 1987 Constitution) (b) The territorial and political subdivisions shall enjoy local autonomy. (Section 2, Article X, 1987 Constitution) Section 2, Art. X of the Constitution provides that LGUS “shall enjoy local autonomy.” This is decentralization of administration and not decentralization of power. (Limbona v. Conte Mangelin, G.R. No. 80391, 1989) (c) The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization. (Section 3, Article X, 1987 Constitution) (d) The President of the Philippines shall exercise general supervision over local governments. (Section 4, Article X, 1987 Constitution) (e) Each local government unit shall have the power to create its own sources of

revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. (Section 5, Article X, 1987 Constitution) (f) Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Section 6, Article X, 1987 Constitution) (g) Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits. (Section 7, Article X, 1987 Constitution)

2. DECLARATION OF POLICIES The territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. The State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The State shall ensure the accountability of local government units through the institution of effective mechanisms of recall, initiative and referendum. All national agencies and offices are required to conduct periodic consultations with the appropriate LGUs, NGOs, people’s organizations and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. (Sec. 2, 1991 LGC) Unitary Form of Government Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to local governments will necessarily be limited and confined within the extent allowed by the central authority. Besides, the principle of local autonomy under the 1987 Constitution simply means “decentralization.” (Lina, Jr. v. Paño, G.R. Page 387 of 479

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No. 129093, 2001, citing Basco v. PAGCOR, G.R. No. 91649, 1991) Thus, the principle of local autonomy under the Constitution simply means ‘decentralization’. It does not make the local government sovereign within a State or an imperium in imperio. (Basco v. PAGCOR, G.R. No. 91649, 1991)

3. THREE FACETS OF LOCAL AUTONOMY Local autonomy means a more responsive and accountable local government structure instituted through a system of decentralization. (Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014 citing Ganzon v. Court of Appeals, G.R. No. 93252, 1991)

a. Fiscal Autonomy Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the National Government, as well as the power to allocate their resources in accordance with their own priorities. Such autonomy is as indispensable to the viability of the policy of decentralization as the other. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & 208488, 2018 citing Pimentel v. Aguirre, G.R. No. 132988, 2000) It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof. (Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014 citing Pimentel v. Aguirre, G.R. No. 132988, 2000)

b. Administrative Autonomy The constitutional guarantee of local autonomy in the Constitution Art. X, Sec. 2 refers to the administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority. It does not make local governments sovereign within the State. Administrative autonomy may involve devolution of powers, but subject to limitations like following national policies or standards, and those provided by the Local Government Code, as the structuring of local governments and the allocation of powers, responsibilities, and resources among the different local government units and local officials have been placed by the Constitution in the hands of Congress under Section 3, Article X of the Constitution.

(League of Provinces of the Philippines vs. DENR, G.R. No. 175368, 2013)

c. Political Autonomy In Cordillera Broad Coalition v. Commission on Audit, the Court, with the same composition, ruled without any dissent that the creation of autonomous regions contemplates the grant of political autonomy — an autonomy which is greater than the administrative autonomy granted to local government units. It held that "the constitutional guarantee of local autonomy in the Constitution (Art. X, Sec. 2) refers to administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority. . . . On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy to these regions." (Disomangcop v. Datumanong, G.R. No. 149848, 2004, citing Cordillera Broad Coalition v. COA, G.R. No. 79956, 1990) Self-Reliant Communities The commitment of the Constitution to the policy of local autonomy which is intended to provide the needed impetus and encouragement to the development of our local political subdivisions as "self-reliant communities." In the words of Jefferson, "Municipal corporations are the small republics from which the great one derives its strength." (Philippine Gamefowl Commission v. Intermediate Appellate Court, G.R. Nos. 72969-70, 1986) Interdependence with the National Government Autonomy is not meant to end the relation of partnership and interdependence between the central administration and LGUs, or otherwise, to usher in a regime of federalism. (Ganzon vs. Court of Appeals, G.R. No. 93252,1991) National Government Intervention Consistent with National Goals Local autonomy does not rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals. (Villafuerte, Jr. v. Robredo, G.R. No. 195390, December 10, 2014 citing Pimentel v. Aguirre, G.R. No. 132988, 2000)

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No Undue Interference by the National Government The objective of "self-reliant communities” through local autonomy could be blunted by undue interference by the national government in purely local affairs which are best resolved by the officials and inhabitants of such political units. (Belgica v. Ochoa, G.R. No. 208566, 2013 citing Philippine Gamefowl Commission v. IAC, G.R. No. 72969-70, 1986) NOTE: Thus, the 2013 PDAF Article, as well as all other similar forms of Congressional Pork Barrel, is deemed unconstitutional insofar as individual legislators (as national officials) are authorized to intervene (by overriding or duplicating local programs, policies, and resolutions) in purely local matters and thereby subvert genuine local autonomy. (Belgica, et..al., v. Ochoa, et. al., G.R. No. 208566, 2013) Power to Streamline and Organize Local autonomy also grants local governments the power to streamline and reorganize. This power is inferred from Section 76 of the Local Government Code on organizational structure and staffing pattern, and Section 16 otherwise known as the general welfare clause. (City of General Santos vs. COA, G.R. No. 199439, 2014) NOTE: There shall be a continuing mechanism to enhance local autonomy not only by legislative enabling acts but also by administrative and organizational reforms. (Section 3(h), 1991 LGC) Statutory Right of LGUs Executive agencies like the DBM cannot disregard statutory right of LGUs to nominate local officials for appointment. (San Juan vs. Civil Service Commission, G.R. No. 92299, 1991) National Priority Programs. Under Sec. 17 of the LGC is that, unless an LGU is particularly designated as the implementing agency, it has no power over a program for which funding has been provided by the national government under the annual general appropriations act, even if the program involves the delivery of basic services within the jurisdiction of the LGU. A complete relinquishment of central government powers on the matter of providing basic facilities and services cannot be implied as the Local Government Code itself weighs against it. xxx Local autonomy is not absolute. The national government still has the say when it comes to national priority programs which the local government is called upon to implement. (Imbong v. Ochoa, G.R. No. 204819, 2014) BACK TO TOC

NOTE: Applies also to the BARMM. Favoring Local Autonomy Where a law is capable of two interpretations, one in favor of centralized power and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy. (San Juan vs. Civil Service Commission, G.R. No. 92299, 1991) Liberal Construction General Welfare Clause. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. (Section 16, Local Government Code of 1991, Republic Act No. 7160, [October 10, 1991]) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community. (Section 5c, Local Government Code of 1991, Republic Act No. 7160, [October 10, 1991]) The Mandanas Interpretation of the Modified Dillon's Rule . [A] municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation-not simply convenient but indispensable; fourth, Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned; [Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3, 2018] Thus, consistent with the declared policy to provide local government units genuine and meaningful Page 389 of 479

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local autonomy, contiguity and minimum land area requirements for prospective local government units should be liberally construed in order to achieve the desired results. (Navarro vs. Ermita, G.R. No. 180050, 2011) Residual Power A local government unit may exercise its residual power to tax when there is neither a grant nor a prohibition by statute. (Alta Vista Golf and Country Club vs. City of Cebu, G.R. No. 180235, 2016)

4. DECENTRALIZATION a. Power vs. Administration The constitutional mandate to ensure local autonomy refers to decentralization. In its broad or general sense, decentralization has two forms in the Philippine setting, namely: the decentralization of power and the decentralization of administration. Decentralization of Power vs. Decentralization of Administration DECENTRLIZATION DECENTRALIZATION OF POWER OF ADMINISTRATION DEFINITION The decentralization On the other hand, the of power involves decentralization of the abdication of administration political power in occurs when the favor of the central government autonomous LGUs delegates as to grant them the administrative freedom to chart powers to the LGUs their own destinies as the means of and to shape their broadening the base futures with of governmental minimum powers and of intervention from making the LGUs the central more responsive and government. This accountable in the amounts to self- process, and thereby immolation because ensure their fullest the autonomous development as selfLGUs thereby reliant communities become accountable and more effective not to the central partners in the authorities but to their pursuit of the goals constituencies. of national development and social progress. This form of decentralization further relieves the central government of the

burden of managing local affairs so that it can concentrate on national concerns. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & 208488, 2018) Decentralization through 2 LGU Groups: (1) The decentralization of power has been given to the regional units (namely, the Autonomous Region for Muslim Mindanao (ARMM) and the constitutionally-mandated Cordillera Autonomous Region (CAR). The regional autonomy of the ARMM and the CAR aims to permit determinate groups with common traditions and shared social-cultural characteristics to freely develop their ways of life and heritage, to exercise their rights, and to be in charge of their own affairs through the establishment of a special governance regime for certain member communities who choose their own authorities from within themselves, and exercise the jurisdictional authority legally accorded to them to decide their internal community affairs. It is to be underscored, however, that the decentralization of power in favor of the regional units is not unlimited but involves only the powers enumerated by Section 20, Article X of the 1987 Constitution and by the acts of Congress. For, with various powers being devolved to the regional units, the grant and exercise of such powers should always be consistent with and limited by the 1987 Constitution and the national laws. In other words, the powers are guardedly, not absolutely, abdicated by the National Government. NOTE: Sec. 20, Art. X of the 1987 Constitution provides: Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and

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(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Illustrative of the limitation is Sema v. Commission on Elections, where the Court struck down Section 19, Article VI of R.A. No. 9054 (An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled "An Act Providing for the Autonomous Region in Muslim Mindanao," as Amended) insofar as the provision granted to the ARMM the power to create provinces and cities, and consequently declared as void Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff Kabunsuan for being contrary to Section 5, Article VI and Section 20, Article X of the 1987 Constitution, as well as Section 3 of the Ordinance appended to the 1987 Constitution. The Court clarified therein that only Congress could create provinces and cities. This was because the creation of provinces and cities necessarily entailed the creation of legislative districts, a power that only Congress could exercise pursuant to Section 5, Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the Constitution; as such, the ARMM would be thereby usurping the power of Congress to create legislative districts and national offices. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & 208488, 2018) (2) The other group of LGUs (i.e., provinces, cities, municipalities and barangays) enjoy the decentralization of administration. The provinces, cities, municipalities and barangays are given decentralized administration to make governance at the local levels more directly responsive and effective. In turn, the economic, political and social developments of the smaller political units are expected to propel social and economic growth and development. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & 208488, 2018)

d. Four Categories of Decentralization As a system of transferring authority and power from the National Government to the LGUs, decentralization in the Philippines may be categorized into four, namely: (1) Political Decentralization or Devolution Political decentralization or devolution occurs when there is a transfer of powers, responsibilities, and resources from the central

government to the LGUs for the performance of certain functions. It is a more liberal form of decentralization because there is an actual transfer of powers and responsibilities. It aims to grant greater autonomy to the LGUs in cognizance of their right to self-government, to make them self-reliant, and to improve their administrative and technical capabilities. NOTE: Do not confuse with Decentralization of Power. As used in the Local Government Code, the term "devolution" refers to the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities. (Sec. 17(e), 1991 LGC) The devolution contemplated in the Local Government Code shall include the transfer to local government units of the records, equipment, and other assets and personnel of national agencies and offices corresponding to the devolved powers, functions, and responsibilities. (Sec. 17(i), 1991 LGC) Decentralization of Power vs. Devolution (Political Decentralization) GENERAL CONTROL SUPERVISION DEFINITION The decentralization When there is a of power involves transfer of powers, the abdication of responsibilities, and political power in resources from the favor of the central government autonomous LGUs to the LGUs for the as to grant them the performance of freedom to chart their certain functions. own destinies and to shape their futures Thus: with minimum (1)Transfer is intervention from the SPECIFIC to certain central government. functions, powers, responsibilities, and NOTE: Not absolute; resources. (e.g. a subject to public hospital Constitution. devolved from NG to LGU); Thus: (1) Abdication of (2) Applied to all political power LGUs except regional autonomies (since they have political power already Page 391 of 479

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BAR OPERATIONS 2023 (2) Limited to autonomous regions (i.e. BARMM)

through Decentralization of Power that includes devolution).

(2) Administrative Decentralization Deconcentration

Administrative decentralization or deconcentration involves the transfer of functions or the delegation of authority and responsibility from the national office to the regional and local offices. Consistent with this concept, the LGC has created the Local School Boards, the Local Health Boards and the Local Development Councils, and has transferred some of the authority from the agencies of the National Government, like the Department of Education and the Department of Health, to such bodies to better cope up with the needs of particular localities. (3) Fiscal Decentralization Fiscal decentralization means that the LGUs have the power to create their own sources of revenue in addition to their just share in the national taxes released by the National Government. It includes the power to allocate their resources in accordance with their own priorities. It thus extends to the preparation of their budgets, so that the local officials have to work within the constraints of their budgets. (4) Policy or Decision-making Decentralization Lastly, policy or decision-making decentralization exists if at least one subnational tier of government has exclusive authority to make decisions on at least one policy issue (ex. Regional Development Councils). (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & 208488, 2018)

e. President’s Power of General Supervision To safeguard the state policy on local autonomy, the Constitution confines the power of the President over LGUs to mere supervision. "The President exercises 'general supervision' over them, but only

to 'ensure that local affairs are administered according to law.' He has no control over their acts in the sense that he can substitute their judgments with his own." Thus, Section 4, Article X of the Constitution, states: “Section 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.” (Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014 citing Limbona v. Mangelin, G.R. No. 80391, 1989) Power of General Supervision vs. Power of Control GENERAL CONTROL SUPERVISION DEFINITION The President's power of The President shall general supervision exercise general means the power of a supervision over the superior officer to see to Bangsamoro it that subordinates Government to ensure perform their functions that laws are faithfully according to law. executed. (Sec. 1, Art. VI, R.A. No. 11054) This is distinguished from the President's power of control which is the power to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the President over that of the subordinate officer. The power of control gives the President the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion. (Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014 citing Province of Negros Occidental v. Commissioners, Page 392 of 479

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Power to Investigate and Discipline LGUs are still under the supervision of the President and maybe held accountable for malfeasance or violations of existing laws. “Supervision is not incompatible with discipline. And the power to discipline and ensure that the laws be faithfully executed must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service so requires.” Clearly then, the President’s power of supervision is not antithetical to investigation and imposition of sanctions. (Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014 citing Hon. Joson v. Exec. Sec. Torres, G.R. No. 131255, 1998) Power to Review Supervision involves the power to review the executive orders and ordinances, i.e., declare them ultra vires or illegal. (Sections 30, 56 and 57, 1991 LGC). NOTE: This is still consistent with the purpose of supervision, i.e. making sure that LGU actions are in accordance with law. Non-interference The President has only the power of supervision over LGUs. He cannot interfere with the local governments as long as they act within the scope of their authority. (Pimentel v. Aguirre, G.R. No. 132988, 2000)

Power of Congress over LGUs

Congress exercises power over local government units through its constitutional power of legislation, but not in the form of administrative supervision or control. Congress retains “control” of the LGUs although in a significantly reduced degree now than under previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. The National Legislature is still the principal of the LGUs, which cannot defy its will, or modify or violate its laws. (Magtajas vs. Pryce Properties and Philippine Amusem*nts and Gaming Corporation, G.R. No. 111097, 1994) Thus, under the 1987 Constitution, Congress has the power of the following LGU matters and affairs:

(1) Allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units, (Section 3, Article X, 1987 Constitution) (2) Prescribe guidelines and limitations on sources of local government revenues and local power to levy taxes, fees, and charges provided these are consistent with the basic policy of local autonomy. (Section 5, Article X, 1987 Constitution) Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. (3) Determine the just share in the national taxes of local governments. (Section 6, Article X, 1987 Constitution) Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (4) Provide the manner by which local governments receive their equitable share in the proceeds of the utilization and development of the national wealth within their respective areas. (Section 7, Article X, 1987 Constitution) Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits. (5) Set the term limits of barangay officials. (Section 8, Article X, 1987 Constitution) Under R.A. No. 9164, the current term of office of elective barangay officials is three years. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any Page 393 of 479

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length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (6) Prescribe the manner by which sectoral representatives shall be installed in local legislative bodies (Section 9, Article X, 1987 Constitution). Legislative bodies of local governments shall have sectoral representation as may be prescribed by law. (7) Define the criteria for the creation, division, merger, abolition and substantial alteration of boundaries of local governments. (Section 10, Article X, 1987 Constitution) (8) Establish special metropolitan political subdivisions. (Section 11, Article X, 1987 Constitution) The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will hereby be created shall be limited to basic services requiring coordination. (9) Pass the organic act of the autonomous regions. (Section 18, Article X, 1987 Constitution) (10) Provide for exemption to devolution such as nationally-funded projects, facilities, programs and services since the power of Congress to legislate on all matters of common interest is plenary. (Imbong v. Ochoa, G.R. No. 204819, 2014) Congress Control over LGU Properties LGUs are still very much subject to the laws passed by Congress, including the public properties within their territorial jurisdiction save for those which were acquired in their private or corporate capacity. Thus: (1) The territorial jurisdiction of LGUs are limited to the land area and physical metes and bounds as defined in their charters and does not extend to the continental shelf for purposes of determining the equitable share. (Republic v. Provincial Government of Palawan, G.R. Nos. 170867 & 185941, 2018) BACK TO TOC

However, the Court further clarified that it is inaccurate to declare that a local government unit's territory, and by extension, its territorial jurisdiction, can only be over land that is contiguous. When the territory consists of one (1) or more islands, territorial jurisdiction can also be exercised over all waters found inland, or in any area that is part of its seabed, subsoil, or continental margin, "in the manner provided by law(.)" (Republic v. Provincial Government of Palawan, G.R. Nos. 170867 & 185941 (Resolution), January 21, 2020) Unfortunately for the Province of Palawan, it was still not entitled to the equitable share. The Court resolved that none of the parties have presented maps or statutes that conclusively prove that the Camago-Malampaya reservoirs are within the Province of Palawan. Thus, the Court was constrained to uphold the ruling that the area remains under the territorial jurisdiction of the Republic, unless otherwise provided by law. (Republic v. Provincial Government of Palawan, G.R. Nos. 170867 & 185941 (Resolution), 2020) (2) The Court reaffirmed the established general rule that "regardless of the source or classification of land in the possession of a municipality, excepting those acquired with its own funds in its private or corporate capacity, such property is held in trust for the State for the benefit of its inhabitants, whether it be for governmental or proprietary purposes. It holds such lands subject to the paramount power of the legislature to dispose of the same, for after all it owes its creation to it as an agent for the performance of a part of its public work, the municipality being but a subdivision or instrumentality thereof for purposes of local administration. (Sangguniang Panlalawigan of Bataan v. Garcia, Jr., G.R. No. 174964, 2016) (3) Article 424 of the Civil Code lays down the basic principles that properties of the public dominion devoted to public use and made available to the public in general are outside the commerce of men (persons) and cannot be disposed of or Page 394 of 479

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leased by the LGU to private persons. (Macasiano vs. Diokno, G.R. no. 97764, August 10, 1992) (4) Pursuant to the Regalian doctrine, any land that has never been acquired through purchase, grant or any other mode of acquisition remains part of the public domain and is owned by the State. LGUs cannot appropriate to themselves public lands without prior grant from the government (Rural Bank of Anda vs. Roman Catholic Archbishop of LingayenDagupan, G.R. No. 155051, May 21, 2007) (5) A lot comprising the public plaza is property of public dominion; hence, not susceptible to private ownership by the church or by the municipality. (Roman Catholic Bishop of Kalibo, Aklan vs. Municipality of Buruanga, Aklan, G.R. No. 149145, 2006) (6) The conversion of the public plaza into a commercial center is beyond the municipality’s jurisdiction considering the property’s nature as one for public use and thereby, forming part of the public dominion. Accordingly, it cannot be the object of appropriation either by the State or by private persons. Nor can it be the subject of lease or any other contractual undertaking. (Land Bank of the Philippines v. Cacayuran, G.R. No. 191667, 2013; In an Amended Decision dated April 22, 2015, the Second Division set aside the decision and remanded the case) (7) A city can validly reconvey a portion of its street that has been closed or withdrawn from public use where Congress has specifically delegated to such political subdivision, through its charter, the authority to regulate its streets. Such property withdrawn from public servitude to be used or conveyed for any purpose for which other property belonging to the city may be lawfully used or conveyed. (Figuracion vs. Libi, G.R. No. 155688, 2007)

C. AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT 1. 1987 CONSTITUTION a. The Autonomous Regions The autonomous regions provided by the Constitution are: (a) Autonomous regions in Muslim Mindanao (b) Autonomous regions in the Cordilleras. (Section 15, Article X, 1987 Constitution)

b. Composition Autonomous regions consist of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. (Sec. 15, Art. X, 1987 Constitution) In Province of North Cotabato v. GRP, the Bangsamoro Juridical Entity (BJE) was struck down as being unconstitutional for being outside the framework of the Constitution, which contemplates only of one Philippine State. No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. (Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951 & 183962, 2008)

c. General Supervision The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. (Section 16, Article X, 1987 Constitution) Page 395 of 479

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d. National Government All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. (Sec. 17, Art. X, 1987 Constitution)

e. Organic Act The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. (Sec. 18, Art. X, 1987 Constitution)

Effectivity

The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. (Sec. 18, Art. X, 1987 Constitution) g. Legislative Powers of autonomous Regions

the

Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Sec. 20, Art. X, 1987 Constitution) Thus, the autonomous regions do not have treaty-making powers since it’s not among the enumeration under Sec. 20, Art. X. Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines . . . ." Under our constitutional system, it is only the President who has that power. (Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951 & 183962, October 14, 2008)

h. Peace and Order The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. (Sec. 21, Art. X, 1987 Constitution)

Defense and Security

The defense and security of the regions shall be the responsibility of the National Government. (Sec. 21, Art. X, 1987 Constitution

Requirements for the Creation of an Autonomous Region

(1) Either Muslim Mindanao or Cordilleras. (2) By an Organic Act from Congress (by law). (3) With the assistance and participation of the regional consultative commission composed of representatives appointed by Page 396 of 479

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the President from a list of nominees from multisectoral bodies. (4) The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. (5) The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. (6) The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. (Sec. 18, Art. X, 1987 Constitution) Cordillera Administrative Region is Constitutional A reading of E.O. No. 220 will easily reveal that what it actually envisions is the consolidation and coordination of the delivery of services of line departments and agencies of the National Government in the areas covered by the administrative region as a step preparatory to the grant of autonomy to the Cordilleras. It does not create the autonomous region contemplated in the Constitution. It merely provides for transitory measures in anticipation of the enactment of an organic act and the creation of an autonomous region. (Cordillera Broad Coalition v. Commission on Audit, G.R. No. 79956, 82217, 1990) Majority Vote in Each Constituent Units Comparing Article XVIII, Section 27 of the Constitution with the provision on the creation of the autonomous region under Art. X, Sec. 18. par. 2, it will readily be seen that the creation of the autonomous region made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. For if the intention of the framers of the Constitution was to get the majority of the totality of the votes cast, they could have simply adopted the same phraseology as that used for the ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective when approved by a majority of the votes cast in a plebiscite called for the purpose." It is thus clear that what is required by the Constitution is a simple majority of votes approving the Organic Act in

individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units. (Abbas v. Commission on Elections, G.R. Nos. 89651 & 89965, 1989) The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region. It is explicit in Article X, Section 15 of the 1987 Constitution that: "Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordillera consisting of provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines." The keywords — provinces, cities, municipalities and geographical areas connote that "region" is to be made up of more than one constituent unit. The term "region" used in its ordinary sense means two or more provinces. This is supported by the fact that the thirteen (13) regions into which the Philippines is divided for administrative purposes are groupings of contiguous provinces. (Integrated Reorganization Plan (1972), which was made as part of the law of the land by P.D. No. 1; P.D. No. 742) Ifugao is a province by itself. To become part of a region, it must join other provinces, cities, municipalities, and geographical areas. It joins other units because of their common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics. The Constitutional requirements are not present in this case. (Ordillo v. Commission on Elections, G.R. No. 93054, 1990)

2. RA 11054: ORGANIC LAW FOR THE BANGSAMORO AUTONOMOUS REGION IN MUSLIM MINDANAO NOTE: As per the Bar Syllabus, included are the salient points that highlight the intergovernmental relations between the National Government and BARMM.

a. Purpose The purpose of this Organic Law is to establish a political entity, provide for its basic structure of government in recognition of the justness and legitimacy of the cause of the Bangsamoro people and the aspirations of Muslim Filipinos and all indigenous cultural communities in the Page 397 of 479

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Bangsamoro Autonomous Region in Muslim Mindanao to secure their identity and posterity, allowing for meaningful self-governance within the framework of the Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. (Sec. 3, Art. I, RA 11054)

b. Bangsamoro People Those who, at the advent of the Spanish colonization, were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands, whether of mixed or of full blood, shall have the right to identify themselves, their spouses and descendants, as Bangsamoro. (Sec. 1, Art. II, RA 11054)

c. Territorial Jurisdiction Territorial jurisdiction is the land mass as well as the waters over which the Bangsamoro Autonomous Region has jurisdiction, which shall always be an integral, indivisible, and inseparable part of the national territory of the Republic of the Philippines as defined by the Constitution and existing laws. (Sec. 1, Art. III, RA 11054)

d. Territorial Allegiance

Integrity

and

The Bangsamoro Autonomous Region is an integral, indivisible, and inseparable part of the territory of the Republic of the Philippines. The Bangsamoro people shall uphold the Constitution as the fundamental law of the land and unequivocally owe allegiance and fidelity to the Republic of the Philippines. (Sec. 1, Art. IV, RA 11054)

e. International Agreements

Treaties

and

The Bangsamoro Government shall respect and adhere to all international treaties and agreements binding upon the National Government. (Sec. 8, Art. IV, RA 11054)

Powers of Government

the

National

All powers, functions, and responsibilities not granted by the Constitution or by national law to the Bangsamoro Government shall be vested in the National Government. (Sec. 1, Art. V, RA 11054)

g. General Welfare Clause The Bangsamoro Government shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance and those which are essential to the promotion of general welfare. Within its territorial jurisdiction, the Bangsamoro Government shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among its residents, maintain peace and order, and preserve the comfort and convenience of its inhabitants. (Sec. 3, Art. V, RA 11054)

h. General Supervision The President shall exercise general supervision over the Bangsamoro Government to ensure that laws are faithfully executed. The President may suspend the Chief Minister for a period not exceeding six (6) months for willful violation of the Constitution, national laws, or this Organic Law. (Sec. 1, Art. VI, RA 11054) NOTE: The President’s power to discipline via suspension is consistent with the power of general supervision as it’s intended to ensure faithful compliance with the Constitution and laws (including the BARMM Organic Act). Dismissal is not included in the power.

Intergovernmental Body

Relations

There is hereby created a National GovernmentBangsamoro Government Intergovernmental Relations Body, hereinafter referred to as "Intergovernmental Relations Body," to coordinate and resolve issues on intergovernmental relations through regular consultation and continuing negotiation in a nonadversarial manner. The Intergovernmental Relations Body shall exhaust all means to resolve issues brought before it. Unresolved issues shall be elevated to the President, through the Chief Minister.

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The National Government and the Bangsamoro Government shall each appoint representatives to the Intergovernmental Relations Body. The Intergovernmental Relations Body shall be supportive by a joint secretariat. (Sec. 2, Art. VI, RA 11054)

inclusion in the General Appropriations Act. Funding for national roads, bridges, and irrigation systems shall be regularly released to the relevant departments of the National Government. (Sec. 37, Art. XIII, RA 11054)

Philippine Congress – Bangsamoro Parliament Forum

There shall be created a Philippine CongressBangsamoro Parliament Forum for purposes of cooperation and coordination of legislative initiatives. (Sec. 3, Art. VI, RA 11054)

k. Intergovernmental Joint Body

Bords

(1) Intergovernmental Fiscal Policy Board It shall address revenue imbalances and fluctuations in regional financial needs and revenue-raising capacity of the Bangsamoro Government. (Sec. 4, Art. VI, RA 11054) (2) Intergovernmental Infrastructure Development Board It shall be responsible for coordinating and synchronizing national and Bangsamoro infrastructure development plans. (Sec. 6, Art. VI, RA 11054) NOTE: The National Government shall fund and implement the construction and maintenance of national roads, bridges, water supply and services, and flood control and irrigation systems and for the maintenance of existing airports, seaports, and wharves in the Bangsamoro Autonomous Region: Provided, That with regard to water supply and services, flood control, and irrigation systems that connect to or from facilities outside the Bangsamoro Autonomous Region, there shall be cooperation and coordination between the Bangsamoro Government and the appropriate national or local government bodies. All national roads and bridges in the Bangsamoro Autonomous Region shall be included in the National Road Network Information System. Nationally-funded infrastructure projects shall be implemented by the National Government. The Bangsamoro Government shall submit proposals to the appropriate national government agency for the inclusion of the cost of such maintenance in the latter's budget that shall be submitted to the Congress of the Philippines for

(3) Intergovernmental Energy Board It shall resolve all matters specified in Section 36, Article XIII of this Organic Law (i.e. power generation including investments, distribution utilities, Agus Hydropower Complex) and other energy issues. (Sec. 7, Art. VI, RA 11054) (4) Bangsamoro Sustainable Development Board It shall ensure the integration and harmonization of economic, social, and environmental considerations as vital dimensions of sustainable development policy and practice in the Bangsamoro Autonomous Region. (Sec. 8, Art. VI, RA 11054) (5) Joint Body for the Zones of Joint Cooperation It shall be responsible for formulating policies relating to the Zones of Joint Cooperation in the Sulu Sea and Moro Gulf. (Sec. 5, Art. VI, RA 11054)

Bangsamoro Government and its Constituent LGU

The authority of the Bangsamoro Government to regulate the affairs of its constituent local government units shall be guaranteed in accordance with this Organic Law and a Bangsamoro local government code to be enacted by the Parliament. The privileges already enjoyed by local government units under Republic Act No. 7160, otherwise known as the "Local Government Code of 1991," as amended, and other existing laws shall not be diminished. The Parliament may create, divide, merge, abolish, or substantially alter boundaries of municipalities or barangays in accordance with a law enacted by the Parliament. The municipalities or barangays created, divided, merged, or whose boundaries are substantially altered, shall be entitled to their appropriate share in the national taxes or Internal Revenue Allotment: Provided, That the criteria laid down in Republic Act No. 7160, as amended, and other national laws shall be satisfied: Provided, further, That it shall be approved by a majority of the Page 399 of 479

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votes cast in a plebiscite in the political units directly affected. When such acts require the creation of a legislative district, the Bangsamoro Government shall cooperate and coordinate with the National Government through the Philippine Congress-Bangsamoro Parliament Forum to prioritize the deliberations on the creation of a legislative district. Nothing in this Organic Law shall be construed to allow the Bangsamoro Government to create legislative districts. (Sec. 10, Art. VI, RA 11054)

m. Bangsamoro Participation in National Government As far as practicable, the Bangsamoro Government shall be represented in the departments, offices, commissions, agencies and bureaus of the National Government that implement and enforce policies, programs, and projects of the National Government in the Bangsamoro Autonomous Region. (Sec. 11, Art. VI, RA 11054)

n. National Projects

Programs

and

National programs and projects such as the Pantawid Pamilyang Pilipino Program, Health Facility Enhancement Program, School Building Program, retained hospitals of the Department of Health, PhilHealth, social pension for senior citizens, and the Task Force Bangon Marawi shall continue to be funded by the National Government, without prejudice to the power of the Bangsamoro Government to provide for supplemental funding for such programs and projects. (Sec. 13, Art. VI, RA 11054)

o. Uniform Taxation

and

Equitable

The Parliament shall exercise, subject to the provisions of the Constitution, the power to levy taxes, fees, and charges, which shall inure solely to the benefit of the Bangsamoro Autonomous Region: Provided, That the principles of uniformity and equity in taxation shall be observed: Provided, further, That such shall not be unjust, excessive, oppressive, confiscatory, or contrary to public policy: Provided, furthermore, That their collection shall not be delegated to any private person.

The power to impose any tax under this Organic Law shall be exercised by the Parliament, through an appropriate legislation, which shall not be enacted without any prior public hearing conducted for the purpose. The Bangsamoro Government shall evolve a progressive, responsive, and culture sensitive system of taxation which shall, among other things, provide for incentives for the prompt payment of taxes and penalize tax evasion and delinquency. Nothing in this provision shall preclude any future legislation on national taxes nor allow both National Government and Bangsamoro Government to impose similar taxes on the same entity. (Sec. 7, Art. XII, RA 11054)

p. Limitations Taxation

Bangsamoro

Unless otherwise provided herein, the taxing power of the Bangsamoro Government shall not extend to the following: (a) Income tax, except when levied on banks and other financial institutions; (b) Customs duties, registration fees of vessels and wharfa*ge on wharves, tonnage dues, and all other kinds of customs fees, charges, and dues except vessels which are registered by their owners with the Bangsamoro Government and wharfa*ge on wharves constructed and maintained by the Bangsamoro Government or its constituent local government units; (c) Taxes, fees, or charges and other impositions upon goods carried into or out of, or passing through the territorial jurisdictions of the provinces, cities, municipalities, or barangays in the Bangsamoro Autonomous Region in the guise of charges for wharfa*ge, tolls for bridges or otherwise, or other taxes, fees, or charges in any form whatsoever upon such goods or merchandise, except tolls on bridges or roads constructed and maintained by the Bangsamoro Government or its constituent provinces, cities, municipalities, or barangays concerned; (d) Taxes, fees, or charges on agricultural and aquatic products when sold by marginal farmers or fisherfolk; Page 400 of 479

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(e) Taxes on business enterprises certified by the Board of Investments or by the Parliament as pioneer or non-pioneer for a period of six (6) and four (4) years, respectively, from the date of registration; (f) Excise taxes on articles enumerated under the National Internal Revenue Code of 1997, as amended, and taxes, fees, or charges on petroleum products; (g) Percentage or value-added tax on sales, barters, or exchanges or similar transactions on goods or services except as otherwise provided by national law; (h) Taxes on the gross receipts of transportation contractors and persons engaged in the transportation of passengers or freight by hire and common carriers by air, land, or water except as provided in this Organic Law; (i)

Taxes on premiums paid by way of reinsurance or retrocession;

(j)

Taxes, fees, or other charges on Philippine products actually exported, except as otherwise provided by law enacted by the Congress of the Philippines;

(k) Taxes, fees, or charges on countryside and barangay business enterprises and cooperatives duly registered under Republic Act No. 6810, otherwise known as the "Magna Carta for Countryside and Barangay Business Enterprises," and Republic Act No. 6938, otherwise known as the "Cooperative Code of the Philippines," as amended; and (l)

Taxes, fees, or charges of any kind on the National Government, its agencies and instrumentalities, and local government units except on government-owned or controlled corporations or entities that are primarily organized to do business. (Sec. 9, Art. XII, RA 11054)

q. Allowable Taxation

Bangsamoro

Bangsamoro territorial jurisdiction, the Parliament may impose the following taxes to the exclusion of the Bureau of Internal Revenue of the National Government:

(1) Capital Gains Tax. — Tax imposed on the gains presumed to have been realized by the seller from the sale, exchange, or other disposition of real properties, classified as capital assets, including pacto de retro sales and other forms of conditional sale; (2) Documentary Stamp Tax. — Tax on documents, instruments, loan agreements, and papers evidencing the acceptance, assignment, sale, or transfer of the obligation, right or property incident thereto; (3) Donor's Tax. — Tax on a donation or gift that is imposed on the gratuitous transfer of property between two (2) or more persons who are living at the time of the transfer. It shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible; and (4) Estate Tax. — Tax on the right of the deceased person to transmit to the lawful heirs and beneficiaries of the deceased person at the time of death and on certain transfers, which are made by law as equivalent to testamentary disposition. In case the Parliament does not impose the abovementioned taxes, the Bureau of Internal Revenue of the National Government shall continue to levy and collect said taxes: Provided, That if the Bangsamoro Government shall impose them, the tax rates shall be pursuant to the National Internal Revenue Code of 1997, as amended: Provided, further, That in no case shall the abovementioned taxes be imposed and collected by both the Bureau of Internal Revenue and the Bangsamoro Government. The Intergovernmental Fiscal Policy Board shall promulgate rules on the determination of taxable elements in relation to taxes (1) to (4) above, and the sharing of revenues from the collection of such taxes where the taxable elements are both situated within and outside of the Bangsamoro territorial jurisdiction. Any dispute between the National Government and the Bangsamoro Government arising from the imposition of the above taxes shall be resolved by the Intergovernmental Fiscal Policy Board. (Sec. 9, Art. XII, RA 11054)

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Sharing of Taxes Collected by the National Government

National Government taxes, fees, and charges collected in the Bangsamoro Autonomous Region, other than tariff and customs duties, shall be shared as follows: (a) Twenty-five percent (25%) to the National Government: Provided, That for the first ten (10) years following the effectivity of this Organic Law, this share shall accrue to the Bangsamoro Government: Provided, further, That after this first ten (10)-year period, upon petition of the Bangsamoro Government, the National Government may extend the period as it shall deem necessary; and (b) Seventy-five percent (75%) to the Bangsamoro Government, inclusive of the shares of the constituent local government units. The shares in taxes, fees, and charges provided under this section shall be separate and distinct from the annual block grant appropriated to the Bangsamoro Government under Section 15 of this Article. (Sec. 10, Art. XII, RA 11054)

s. Annual Block Grant The National Government shall provide an annual block grant which shall be the share of the Bangsamoro Government in the national internal revenue tax collections of the Bureau of Internal Revenue and collections of the Bureau of Customs. The amount shall be sufficient for the exercise of the powers and functions of the Bangsamoro Government under this Organic Law and in no case shall be less than the last budget received by the Autonomous Region in Muslim Mindanao immediately before the establishment of the Bangsamoro Autonomous Region. (Sec. 15, Art. XII, RA 11054)

D. LOCAL GOVERNMENT UNIT (LGU) 1. POWERS OF LOCAL GOVERNMENT UNITS, IN GENERAL Sources of the powers of LGUs (1) Constitution; (2) Statute;

(3) Those applicable to all municipal corporations or to the class to which it belongs; (4) Special acts of the legislature; and (5) Charter. Four Categories of Powers Exercised by LGUs (1) Powers expressly granted (2) Powers necessarily implied therefrom (3) Powers necessary, appropriate, or incidental for efficient and effective governance (4) Powers essential to the promotion of the general welfare. (Sec. 16, 1991 LGC) REMEMBER: Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned. (Sec. 5(a), 1991 LGC) Within their respective territorial jurisdictions, LGUs shall ensure and support: (a) Preservation and enrichment of culture (b) Promotion of health and safety (c) Enhancement of the right of the people to a balanced ecology (d) Development of self-reliant scientific and technological capabilities (e) Improvement of public morals (f) Enhancement of economic prosperity and social justice (g) Promotion of full employment among residents (h) Maintenance of peace and order (i) Preservation of the comfort and convenience of its inhabitants. (Sec. 16, 1991 LGC)

a. Police Power (General Welfare Clause) Police Power, Definition The police power is a governmental function, an inherent attribute of sovereignty, which was born with civilized government. It is founded largely on the maxims, “Sic utere tuo et alienum non laedas” and “Salus populi est suprema lex.” Its fundamental purpose is securing the general welfare, comfort and convenience of the people. Police power is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. It is the most essential, insistent, and illimitable of powers. Page 402 of 479

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In a sense it is the greatest and most powerful attribute of the government. It is elastic and must be responsive to various social conditions. (Sangalang, et al. vs. IAC, 176 SCRA 719). On it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests. (16 C.J.S., p. 896) However, it is not confined within narrow circ*mstances of precedents resting on past conditions; it must follow the legal progress of a democratic way of life. (Sangalang, et al. vs. LAC, supra). (Binay v. Domingo, G.R. No. 92389, 1991) Negatively put, police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society." (Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, G.R. No. L-24693, 1967) Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI of Agusan del Norte, 163 SCRA 182). Before a municipal corporation may exercise such power, there must be a valid delegation of such power by the legislature which is the repository of the inherent powers of the State. A valid delegation of police power may arise from express delegation, or be inferred from the mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations may exercise police powers within the fair intent and purpose of their creation which are reasonably proper to give effect to the powers expressly granted, and statutes conferring powers on public corporations have been construed as empowering them to do the things essential to the enjoyment of life and desirable for the safety of the people. (Binay v. Domingo, G.R. No. 92389, 1991) Thus, that valid statutory delegation of police power is now the General Welfare Clause in Sec. 16 of the Local Government Code: “Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced

ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.” Two Branches of the General Welfare Clause (1) General legislative power Authorizes municipal councils to enact ordinances and make regulations not repugnant to law and may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. (Fernando v. St. Scholastica’s College, G.R. No. 161107, 2013 citing Rural Bank of Makati v. Municipality of Makati, G.R. No. 150763, 2004) Examples of General Legislative Power: (a) The ordinances imposing licenses and requiring permits for any business establishment, for purposes of regulation enacted by the municipal council, fall within the purview of the first branch of the general welfare clause. Moreover, the ordinance of the municipality imposing the annual business tax is part of the power of taxation vested upon local governments. Hence, the closure of a business establishment for non-payment of local business taxes is a valid exercise of police power. (Rural Bank of Makati v. Municipality of Makati, G.R. No. 150763, 2004) (b) LGU may properly order the removal and closure (including demolition) of illegally constructed establishments for failure to secure the necessary permits. This is because, in the exercise of police power and the general welfare clause, property rights of individuals may be subjected to restraints and burdens in order to fulfil the objectives of the government. (Aquino v. Municipality of Malay, G.R. No. 211356, 2014) (c) In ordering the closure of bingo operations, LGU was exercising their duty to implement laws and ordinances which include the local government's authority to issue licenses and permits for business operations in the city. This authority is granted to them as a delegated exercise of the police power of the State. (City of Page 403 of 479

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Bacolod v. Phuture Visions, G.R. No. 190289, 2018) (2) Police Power Proper Authorizes the municipality to enact ordinances as may be proper and necessary for the health and safety, prosperity, morals, peace, good order, comfort and convenience of the municipality and its inhabitant, and for the protection of their property. (Fernando v. St. Scholastica’s College, G.R. No. 161107, 2013 citing Rural Bank of Makati v. Municipality of Makati, G.R. No. 150763, 2004) Examples of Police Power: (a) Ordinance regulating operation of massage clinics, but not to regulate the practice of massage, to prevent the commission of immorality and the practice of prostitution. (Physical Therapy v. Municipal Board of the City of Manila, G.R. No. L-10448, 1957) (b) Ordinance requiring registration before entry to motels to safeguard public morals. (Ermita-Malate Hotel v. City Mayor of Manila, G.R. No. L-24693, 1976) NOTE: Ordinance also prohibited renting rooms more than twice every 24 hours, which was previously held to be valid in Ermita-Malate Hotel, BUT which has been rendered unconstitutional in White Light Corporation v. City of Manila, G.R. No. 122846, 2009. (c) Ordinance reclassifying land from industrial to commercial that consequently prohibited the operation of an oil depot to safeguard the rights to life, security, and safety of the inhabitants of Manila. (SJS v. Atienza, GR No. 156052, 2008; SJS v. Lim, G.R. No. 187836, 2014) (d) An ordinance extending burial assistance of P500 to a bereaved family whose gross income does not exceed P2,000 a month, has been upheld by the as a valid exercise of police power. (Binay v. Domingo, G.R. No. 92389, 1991) (e) Ordinances regulating waste removal carry a strong presumption of validity. Necessarily, LGUs are statutorily sanctioned to impose and collect such reasonable fees and charges for services rendered. (Ferrer v. Bautista, G.R. No. 210551, 2015)

A person is the real party-in-interest to assail the constitutionality and legality of the ordinances because he is a registered co-owner of a residential property in the city and that he paid property tax which already included the SHT and the garbage fee. He has substantial right to seek a refund of the payments he made and to stop future imposition. While he is a lone petitioner, his cause of action to declare the validity of the subject ordinances is substantial and of paramount interest to similarly situated property owners in the city. (Ferrer v. Bautista, G.R. No. 210551, 2015) Requisites for Valid Exercise of Police Power As with the State, the local government may be considered as having properly exercised its police power only if the following requisites are met: (1) The interests of the public generally, as distinguished from those of a particular class, require the interference of the State (LAWFUL SUBJECT); and (2) The means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals (LAWFUL METHOD). Otherwise stated, there must be a concurrence of a lawful subject and lawful method. (Lucena Grand Central Terminal Inc. v. JAC Liner Inc., G.R. No. 148339, 2005; also SJS v. Lim, G.R. No. 187836, 2014 and Fernando v. St. Scholastica’s College, G.R. No. 161107, 2013) Two-Pronged Test to Consider an Ordinance as a Valid Police Power Measure To be considered as a valid police power measure, an ordinance must pass a two-pronged test: (1) FORMAL (i.e. whether the ordinance is enacted within the corporate powers of the LGU, and whether it is passed in accordance with the procedure prescribed by law); and (2) SUBSTANTIVE (i.e., involving inherent merit, like the conformity of the ordinance with the limitations under the Constitution and the statutes, as well as with the requirements of fairness and reason, and its consistency with public policy). (Mosqueda v. Pilipino Growers, G.R. No. 189185, 2016) For an ordinance to be valid, it must not only be within the corporate powers of the LGU to enact and be passed according to the procedure prescribed by Page 404 of 479

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law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy and (6) must not be unreasonable. (SJS v. Atienza, G.R. No. 156052, 2008) Tests to Determine Constitutionality of an Ordinance To successfully invoke the exercise of police power as the rationale for the enactment of an ordinance and to free it from the imputation of constitutional infirmity, two tests have been used by the Court — the rational relationship test and the strict scrutiny test (and also the intermediate scrutiny test): (1) Rational Basis or Relationship Test Often applied mainly in analysis of equal protection challenges. Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest. Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered. Under the rational relationship test, an ordinance must pass the following requisites as discussed in Social Justice Society (SJS) v. Atienza, Jr.: As with the State, local governments may be considered as having properly exercised their police power only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require its exercise and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and lawful method. (Fernando v. St. Scholastica's College, G.R. No. 161107, 2013) (2) Strict Scrutiny Test Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. (Fernando v. St. Scholastica’s College, G.R. No. 161107, 2013) The strict scrutiny test applies when a classification either (i) interferes with the exercise of fundamental

rights, including the basic liberties guaranteed under the Constitution, or (ii) burdens suspect classes. XXX Thus, the government has the burden of proving that the classification is: (i) Necessary to achieve a compelling State interest, and (ii) The least restrictive means to protect such interest or the means chosen is narrowly tailored (or narrowly drawn) to accomplish the interest. (SPARK v. Quezon City, G.R. No. 225442, 2017 citing Disini v. Secretary of Justice, G.R. No. 203335, 2014) Thus, in the curfew ordinances imposed by the City of Manila, Navotas City, and Quezon City on minors, there is compelling state interest in attempting to substantiate legitimate concerns on public welfare, especially with respect to minors. As compared to the Manila and Navotas ordinances, the list of exceptions under the Quezon City Ordinance is more narrowly drawn to sufficiently protect the minors’ rights of association, free exercise of religion, travel, to peaceably assemble, and of free expression. (SPARK v. Quezon City, G.R. No. 225442, 2017 (3) Intermediate Scrutiny Test There is also the intermediate scrutiny test when a classification does not involve suspect classes or fundamental rights, but requires heightened scrutiny, such as in classifications based on gender and legitimacy. (SPARK v. Quezon City, G.R. No. 225442, 2017) This test has also been applied to regulations or restrictions affecting the freedom of speech and expression in relation to determining if it is a contentneutral regulation. Being a content-neutral regulation, the same is measured against the intermediate test, viz.: (1) the regulation is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) such governmental interest is unrelated to the suppression of the free expression; and (4) the incidental restriction on the alleged freedom of expression is no greater than what is essential to the furtherance of the governmental interest. (NicolasLewis v. Commission on Elections, G.R. No. 223705, 2019)

Barangay Police Power (1) The punong barangay, as the chief executive of the barangay government, shall exercise such powers and perform such duties and functions for efficient, effective and economical governance, the purpose of which is the general welfare of Page 405 of 479

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the barangay and its inhabitants pursuant to Section 16 of the LGC. (Sec. 389, 1991 LGC) (2) The Barangay Assembly cannot exercise any police power. Under Section 398 of the LGC, it can only recommend to the Sangguniang Barangay the adoption of measures for the welfare of the barangay and decide on the adoption of an initiative. (Sec. 398, 1991 LGC) (3) Also, the Liga ng mga Barangay cannot exercise legislative powers. It is not a local government unit and its primary purpose is to determine representation of the liga in the sanggunians, to ventilate, articulate and crystallize issues affecting barangay government administration, and to secure solutions for them through proper and legal means. (Onon v. Fernandez, G.R. No. 139813, 2001)

b. Eminent Domain Eminent Domain, Definition The power of eminent domain has been defined as the right of a government to take and appropriate private property to public use, whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. It has also been described as the power of the State or its instrumentalities to take private property for public use and is inseparable from sovereignty and inherent in government. (Masikip v. City of Pasig, G.R. No. 136349, 2006) REMEMBER: Private property shall not be taken for public use without just compensation. (Sec. 9, Art. III, 1987 Constitution) Otherwise stated, private property can be taken provided: (1) For public use; (2) With just compensation. Nature of Power of LGU The power of eminent domain is lodged in the legislative branch of the government. It delegates the exercise thereof to local government units, other public entities and public utility corporations, subject only to Constitutional limitations. As such, local governments have no inherent power of eminent domain and may exercise it only when expressly authorized by statute. Section 19 of the Local Government Code of 1991 (Republic Act No. 7160) prescribes the delegation by Congress of the power of eminent domain to local government units and

lays down the parameters for its exercise. (Masikip v. City of Pasig, G.R. No. 136349, 2006) Thus, strictly speaking, the power of eminent domain delegated to an LGU is in reality not eminent but "inferior" since it must conform to the limits imposed by the delegation and thus partakes only of a share in eminent domain. The national legislature is still the principal of the LGUs and the latter cannot go against the principal's will or modify the same. (Beluso v. Municipality of Panay, G.R. No. 153974, 2006) Requisites of Eminent Domain (1) Expropriation should be for a Public use or purpose or for the welfare of the poor or landless. (2) Ordinance authorizing the local chief executive to subject a certain property to expropriation (3) Payment of Just compensation (4) Valid and definite Offer previously made to owner which was not accepted. (5) Exercised by the LGU through its Chief executive. (Sec. 19, 1991 LGC) Jurisdiction An expropriation suit falls under the jurisdiction of the RTCs. The subject of an expropriation suit is the government’s exercise of eminent domain, a matter that is incapable of pecuniary estimation. (Barangay San Roque v. Heirs of Pastor, G.R. No. 138896, 2000) Due Process Requirements The property owner must be afforded a reasonable opportunity to be heard on the issues of public use and just compensation and to present objections to and claims on them. It is settled that taking of property for a private use or without just compensation is a deprivation of property without due process of law. Moreover, it has to be emphasized that taking of private property without filing any complaint before a court of law under Rule 67 of the Rules of Court or existing laws is patently felonious, confiscatory, and unconstitutional. Judicial notice can be taken of some instances wherein some government agencies or corporations peremptorily took possession of private properties and usurped the owner's real rights for their immediate use without first instituting the required court action. Running roughshod over the property rights of individuals is a clear and gross breach of the constitutional guarantee of due process, which Page 406 of 479

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should not be countenanced in a society where the rule of law holds sway. (Barangay Sindalan v. CA, GR No. 150640, 2007) Judicial Review Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking. (Masikip v. City of Pasig, GR No. 136349, 2006) Just Compensation (1) The determination of “just compensation” in eminent domain cases is a judicial function. Hence, a statutory provision on a fixed formula in the computation of just compensation in cases of acquisition of easem*nts of right of way is not binding upon the Court. (National Power Corp. v. Ileto, G.R. No. 169957, 2012) (2) The determination of just compensation is a judicial function and any valuation for just compensation laid down in the statutes may serve only as a guiding principle. It may not substitute the court’s own judgment as to what amount should be awarded and how to arrive at such amount. (Vergara v. Grecia, G.R. 185638, 2016) (3) The amount to be paid for the expropriated property (i.e. just compensation) shall be determined by the proper court, based on the fair market value at the time of the taking of the property. (Sec. 19, 1991 LGC) (4) Under the Rules of Court, however, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. (Sec. 4, Rule 67, ROC) NOTE: Which should prevail? 1) Sec. 19, LGC is substantive law; 2) Sec. 4, Rule 67, ROC is procedural law. Given that the determination of just compensation is a judicial function, it is submitted that the ROC should prevail in view of the rulemaking authority of the Supreme Court under the

Constitution on all matters relating to pleadings, practice, and procedure. Requisites for the Immediate Possession by LGU The LGU may immediately take possession of the property: (1) Upon the filing of the expropriation proceedings; and (2) Upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated. (Sec. 19, 1991 LGC) Upon compliance with these requirements, the issuance by the RTC of a writ of possession becomes ministerial. (Iloilo City v. Legaspi, G.R. No. 154614, 2004) Genuine Necessity of the Taking 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, the Court held that the very foundation of the right to exercise eminent domain is genuine necessity and that necessity must be of a public character. Moreover, the ascertainment of the necessity must precede or accompany and not follow, the taking of the land. In City of Manila v. Arellano Law College, the SC ruled that "necessity within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with such benefit." (Masikip v. City of Pasig, G.R. No. 136349, 2006) Examples of No Genuine Necessity (Hence, Constitutes as Unlawful Taking): (1) Taking of portions of a Chinese cemetery for a public improvement since its already for public use and there are adjoining and adjacent lands offered free of charge. (City of Manila v. Chinese Community, G.R. No. L-14355, 1919) (2) Taking of a land currently used by Arellano Law College for homesite purposes since only few families will benefit, which is insignificant compared to preparing young men and women for useful citizenship and service to the government and community. Page 407 of 479

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(City of Manila v. Arellano Law Colleges, G.R. No. L-2929, 1950) (3) Taking of a private property for sports development and recreational activities of a neighborhood association since it’s not categorically for public purpose and there is an alternative facility in the area. (Masikip v. City of Pasig, G.R. No. 136349, 2006) Example: Establishment of a pilot development center that would inure to the direct benefit and advantage of the people of the Province of Camarines Sur. Once operational, the center would make available to the community invaluable information and technology on agriculture, fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and craftsmen would be enhanced. (Camarines Sur v. CA, G.R. No. 103125, 1993) Rules on Urban Land Reform and Socialized Housing If the expropriation is pursuant to an urban land reform and housing program, LGUs are also mandated to follow the conditions and standards prescribed by RA 7279 (Urban Development and Housing Act of 1992), the law governing the expropriation of property for urban land reform and housing, as follows: (1) Prioritize Other Lands Lands for socialized housing shall be acquired in the following order: (a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries; (b) Alienable lands of the public domain; (c) Unregistered or abandoned and idle lands; (d) Those within the declared Areas of Priority Development, Zonal Improvement sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired; (e) Bagong Lipunan Improvement sites and Services or BLISS sites which have not yet been acquired; and (f) Privately-owned lands. Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply (thus, privately-owned lands may be acquired first). The local government units shall give budgetary priority to on-site development of government lands. (Sec. 9, RA 7279) BACK TO TOC

(2) Prioritize Other Modes of Acquisition The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted. (Sec. 10, RA 7279) Section 10 of R.A. 7279 also prefers the acquisition of private property by "negotiated sale" over the filing of an expropriation suit. It provides that such suit may be resorted to only when the other modes of acquisitions have been exhausted. Indeed, the Court has held that when the property owner rejects the offer but hints for a better price, the government should renegotiate by calling the property owner to a conference. The government must exhaust all reasonable efforts to obtain by agreement the land it desires. Its failure to comply will warrant the dismissal of the complaint. (City of Manila v. Alegar, G.R. No. 187604, 2012) Failure to prove strict compliance with the requirements of Sections 9 and 10 of RA 7279 is a fatal infirmity in the LGU’s exercise of the power of eminent domain. Hence, its complaint for expropriation must necessarily fail. (Estate of JBL Reyes v. City of Manila, G.R. No. 132431, 2004) (3) Small Property Owners are Exempted Where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act. (Sec. 10, RA 7279) “Small- property owners” are defined by two elements: (a) They are owners of real property which consists of residential lands with an area of not more than 300 sq. meters in highly urbanized cities, and 800 sq. meters in other urban cities; and (b) They do not own real property other than the same. (Sec. 3(q), RA 7279) Public Use/Public Purpose/Public Character (1) Use by the Public or Public Employment There is no precise meaning of "public use" and the term is susceptible of myriad meanings depending on diverse situations. The limited meaning attached to "public Page 408 of 479

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use" is "use by the public" or "public employment," that "a duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and that there must be a right on the part of the public, or some portion of it, or some public or quasi-public agency on behalf of the public, to use the property after it is condemned." The more generally accepted view sees "public use" as "public advantage, convenience, or benefit, and that anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, (which) contributes to the general welfare and the prosperity of the whole community." In this jurisdiction, "public use" is defined as "whatever is beneficially employed for the community." (Barangay Sindalan v. Court of Appeals, G.R. No. 150640, 2007) (2) Cannot Depend on Numerical Count It is settled that the public nature of the prospective exercise of expropriation cannot depend on the "numerical count of those to be served or the smallness or largeness of the community to be benefited." The number of people is not determinative of whether or not it constitutes public use, provided the use is exercisable in common and is not limited to particular individuals. Thus, the first essential requirement for a valid exercise of eminent domain is for the expropriator to prove that the expropriation is for a public use. (Barangay Sindalan v. Court of Appeals, G.R. No. 150640, 2007) (3) Contributes to the General Welfare Modernly, there has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use." Under the new concept, "public use" means public advantage, convenience or benefit, which

tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project. (Camarines Sur v. CA, G.R. No. 103125, May 17, 1993 citing Heirs of Juancho Ardano v. Reyes, 125 SCRA 220 (1983); Sumulong v. Guerrero, 154 SCRA 461 (1987)) Returning the Property When private land is expropriated for a particular public use and that purpose is abandoned, there is no “implied contract” that the properties will be used only for the public purpose for which they were acquired. Property is to be returned only when it is expropriated with the condition that when said purpose is ended or abandoned, the former owner reacquires the property so expropriated, and not when the expropriation decree gives to the entity a fee simple which makes the land the expropriator the absolute owner of the property. (Air Transportation Office v. Gopuco, G.R. No. 158563, 2005) Role of Supervising LGU The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is beyond the powers of the LGU. Absolutely no other ground is recognized by the law. Hence, it cannot declare the (expropriation) ordinance invalid on the ground that the expropriation is unnecessary. (Moday v. CA, G.R. No. 107916, 1997) DAR Clearance Not Required: Eminent Domain is Superior While such delegated power may be a limited authority, it is complete within its limits. Moreover, the limitations on the exercise of the delegated power must be clearly expressed, either in the law conferring the power or in other legislations. The rules on conversion of agricultural lands (found in Section 4 (k) and 5 (1) of Executive Order No. 129 – A, Series of 1987, cannot be the source of the authority of the Department of Agrarian Reform to determine the suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority. While those rules vest on the Department of Agrarian Reform the exclusive authority to approve or disapprove conversions of agricultural lands for residential, commercial or industrial uses, such authority is limited to the applications for reclassification submitted by the land owners or tenant beneficiaries. Page 409 of 479

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Statutes conferring the power of eminent domain to political subdivisions cannot be broadened or constricted by implication (Schulman v. People, 10 N.Y. 2d. 249, 176 N.E. 2d. 817, 219 NYS 2d. 241) To sustain the Court of Appeals would mean that the local government units can no longer expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc., without first applying for conversion of the use of the lands with the Department of Agrarian Reform, because all of these projects would naturally involve a change in the land use. In effect, it would then be the Department of Agrarian Reform to scrutinize whether the expropriation is for a public purpose or public use. (Province of Camarines Sur v. Court of Appeals, G.R. No. 103125, 1993) NOTE: Being complete within the limitations provided by law, the delegated power of eminent domain does not require prior approval of the National Government to be a valid LGU exercise. Procedure for Expropriation: LGU vs. National Government LGU NATIONAL GOVERNMENT 1. The filing of a 1. The filing of a complaint for complaint for expropriation expropriation sufficient in form and sufficient in form and substance; and substance; and 2. The deposit of the 2. The making of a amount equivalent to deposit equivalent to 15% of the fair market the assessed value of value of the property the property subject to to be expropriated expropriation. based on its current tax declaration (Iloilo See: Rules of Court, v. Legaspi, G.R. No. Rule 67 and Robern 154614, 2004). Development Corporation v. See: Local Quitain, G.R. No. Government Code, 135042, 1999 Sec. 19

c. Taxing Power Constitutional Rules (1) Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide,

consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. (Sec. 5, Article X, 1987 Constitution) (2) Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Sec. 6, Article X, 1987 Constitution) (3) Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits. (Sec. 7, Article X, 1987 Constitution) Power of Taxation is Not Inherent in LGUs The power to tax "is an attribute of sovereignty," and as such, inheres in the State. Such, however, is not true for provinces, cities, municipalities and barangays as they are not the sovereign; rather, they are mere "territorial and political subdivisions of the Republic of the Philippines." The rule governing the taxing power of provinces, cities, municipalities and barangays is summarized in Icard v. City Council of Baguio: It is settled that a municipal corporation unlike a sovereign state is clothed with no inherent power of taxation. The charter or statute must plainly show an intent to confer that power or the municipality, cannot assume it. And the power when granted is to be construed in strictissimi juris. Any doubt or ambiguity arising out of the term used in granting that power must be resolved against the municipality. Inferences, implications, deductions — all these — have no place in the interpretation of the taxing power of a municipal corporation. Therefore, the power of a province to tax is limited to the extent that such power is delegated to it either by the Constitution or by statute. Per Section 5, Article X of the 1987 Constitution, "the power to tax is no longer vested exclusively on Congress; local legislative bodies are now given direct authority to levy taxes, fees and other charges." Nevertheless, such authority is "subject to such guidelines and limitations as the Congress may provide.” (Pelizloy Realty v. Benguet, G.R. No. 183137, 2013)

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Nature of LGUs Power to Tax LGUs have no inherent power to tax except to the extent that such power might be delegated to them either by the basic law or by the statute. Under the 1987 Constitution, where there is neither a grant nor a prohibition by statute, the tax power must be deemed to exist although Congress may provide statutory limitations and guidelines. The basic rationale for the current rule is to safeguard the viability and self-sufficiency of local government units by directly granting them general and broad tax powers. Nevertheless, the fundamental law did not intend the delegation to be absolute and unconditional; the constitutional objective obviously is to ensure that, while the local government units are being strengthened and made more autonomous, the legislature must still see to it that (a) the taxpayer will not be over-burdened or saddled with multiple and unreasonable impositions; (b) each local government unit will have its fair share of available resources; (c) the resources of the national government will not be unduly disturbed; and (d) local taxation will be fair, uniform, and just. (Ferrer v. Bautista, G.R. No. 210551, 2015) Fiscal Autonomy Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. Local fiscal autonomy does not, however, rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals. Significantly, the President, by constitutional fiat, is the head of the economic and planning agency of the government, primarily responsible for formulating and implementing continuing, coordinated and integrated social and economic policies, plans and programs for the entire country. However, under the Constitution, the formulation and the implementation of such policies and programs are subject to "consultations with the appropriate public agencies, various private sectors, and local government units." The President cannot do so unilaterally. (Pimentel v. Aguirre, G.R. No. 132988, 2015) Thus, the directive to "identify and implement measures…that will reduce total expenditures…by at least 25% of authorized regular appropriation" does not violate local or fiscal autonomy as it is merely advisory in character, and does not

constitute a mandatory or binding order that interferes with local autonomy. The language used, while authoritative, does not amount to a command that emanates from a boss to a subaltern. Rather, the provision is merely an advisory to prevail upon local executives to recognize the need for fiscal restraint in a period of economic difficulty. Indeed, all concerned would do well to heed the President's call to unity, solidarity and teamwork to help alleviate the crisis. It is understood, however, that no legal sanction may be imposed upon LGUs and their officials who do not follow such advice. (Pimentel v. Aguirre, G.R. No. 132988, 2015) Tax Ordinance Strictly Construed Against LGU In case of doubt, any tax ordinance or revenue measure shall be construed strictly against the local government unit enacting it, and liberally in favor of the taxpayer. Any tax exemption, incentive or relief granted by any local government unit pursuant to the provisions of this Code shall be construed strictly against the person claiming it. (Sec. 5(b), 1991 LGC) Scope of Power to Generate and Apply Resources Local government units shall have the power and authority to: (1) Establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives and priorities; (2) Create their own sources of revenues and to levy taxes, fees, and charges which shall accrue exclusively for their use and disposition and which shall be retained by them; (3) Have a just share in national taxes which shall be automatically and directly released to them without need of any further action; (4) Have an equitable share in the proceeds from the utilization and development of the national wealth and resources within their respective territorial jurisdictions including sharing the same with the inhabitants by way of direct benefits; (5) Acquire, develop, lease, encumber, alienate, or otherwise dispose of real or personal property held by them in their proprietary capacity and to apply their resources and assets for productive, developmental, or welfare purposes, in the exercise or furtherance of their governmental or proprietary powers and functions and thereby ensure their development into self-reliant communities Page 411 of 479

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and active participants in the attainment of national goals. (Sec. 18, 1991 LGC) Fundamental principles of Local Taxation The following fundamental principles shall govern the exercise of the taxing and other revenue-raising powers of local government units: (1) Taxation shall be uniform in each local government unit; (2) Taxes, fees, charges and other impositions shall: (a) be equitable and based as far as practicable on the taxpayer's ability to pay; (b) be levied and collected only for public purposes; (c) not be unjust, excessive, oppressive, or confiscatory; (d) not be contrary to law, public policy, national economic policy, or in the restraint of trade; (3) The collection of local taxes, fees, charges and other impositions shall in no case be let to any private person; (4) The revenue collected pursuant to the provisions of this Code shall inure solely to the benefit of, and be subject to the disposition by, the local government unit levying the tax, fee, charge or other imposition unless otherwise specifically provided herein; and (5) Each local government unit shall, as far as practicable, evolve a progressive system of taxation. (Sec. 130, 1991 LGC) Sources of LGU Funds (1) Taxes, fees, and charges which accrue exclusively for their use and disposition (2) Just share in national taxes which shall be automatically and directly released to them (3) Equitable share in the proceeds from utilization and development of national wealth and resources within their territorial jurisdiction (Sec. 18, 1991 LGC) Common Limitations to Taxing Power of LGUs Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall NOT extend to the levy of the following: (a) Income tax, except when levied on banks and other financial institutions; (b) Documentary stamp tax;

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(c) Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis causa, except as otherwise provided herein; (d) Customs duties, registration fees of vessel and wharfa*ge on wharves, tonnage dues, and all other kinds of customs fees, charges and dues except wharfa*ge on wharves constructed and maintained by the local government unit concerned; (e) Taxes, fees, and charges and other impositions upon goods carried into or out of, or passing through, the territorial jurisdictions of local government units in the guise of charges for wharfa*ge, tolls for bridges or otherwise, or other taxes, fees, or charges in any form whatsoever upon such goods or merchandise; (f) Taxes, fees or charges on agricultural and aquatic products when sold by marginal farmers or fishermen; (g) Taxes on business enterprises certified to by the Board of Investments as pioneer or non-pioneer for a period of six (6) and four (4) years, respectively from the date of registration; (h) Excise taxes on articles enumerated under the national Internal Revenue Code, as amended, and taxes, fees or charges on petroleum products; (i) Percentage or value-added tax (VAT) on sales, barters or exchanges or similar transactions on goods or services except as otherwise provided herein; (j) Taxes on the gross receipts of transportation contractors and persons engaged in the transportation of passengers or freight by hire and common carriers by air, land or water, except as provided in this Code; (k) Taxes on premiums paid by way or reinsurance or retrocession; (l) Taxes, fees or charges for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof, except tricycles; (m) Taxes, fees, or other charges on Philippine products actually exported, except as otherwise provided herein; (n) Taxes, fees, or charges, on Countryside and Barangay Business Enterprises and cooperatives duly registered under R.A. No. 6810 and R.A. No. 6938 (Cooperative Code, now RA 9520) respectively; and (o) Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities, and local government units. (Sec. 133, 1991 LGC) Page 412 of 479

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Requisites of a Tax Ordinance (1) Notice (2) Actual conduct of public hearing (3) Posting (4) Publication (if with penal sanctions) Constitutionality or Legality of Tax Ordinances Any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction. (Sec. 189, 1991 LGC) Rules on LGU Business Taxes (1) Manufacturers, assemblers, repackers, brewers, distillers, rectifiers and compounders of liquor, distilled spirits and wines, millers, producers, exporters, wholesalers, distributors, dealers, contractors, banks and other financial institutions, and other businesses, maintaining or operating branch or sales outlet elsewhere shall record the sale in the branch or sales outlet making the sale or transaction, and the tax thereon shall accrue and shall be paid to the municipality where such branch or sales outlet is located. (Sec. 150(a), 1991 LGC) (2) In cases where there is no such branch or sales outlet in the city or municipality where the sale or transaction is made, the sale shall be duly recorded in the principal office and the taxes due shall accrue and shall be paid to such city or municipality. (Sec. 150(a), 1991 LGC) (3) The following sales allocation shall apply to manufacturers, assemblers, contractors, producers, and exporters with factories, project offices, plants, and plantations in the pursuit of their business: (a) Thirty percent (30%) of all sales recorded in the principal office shall be taxable by the city or municipality

where the principal office is located; and (b) Seventy percent (70%) of all sales recorded in the principal office shall be taxable by the city or municipality where the factory, project office, plant, or plantation is located. (Sec. 150(b), 1991 LGC) (4) In case of a plantation located at a place other than the place where the factory is located, said seventy percent (70%) mentioned above shall be divided as follows: (a) Sixty percent (60%) to the city municipality where the factory located; and (b) Forty percent (40%) to the city municipality where the plantation located. (Sec. 150(c), 1991 LGC)

or is or is

(5) In cases where a manufacturer, assembler, producer, exporter or contractor has two (2) or more factories, project offices, plants, or plantations located in different localities, the seventy percent (70%) sales allocation mentioned above shall be prorated among the localities where the factories, project offices, plants, and plantations are located in proportion to their respective volumes of production during the period for which the tax is due. (Sec. 150(d), 1991 LGC) Withdrawal of Local Tax Exemption Privileges Unless otherwise provided in the LGC, tax exemptions or incentives granted to, or enjoyed by all persons, whether natural or juridical, including government-owned or - controlled corporations were withdrawn upon the effectivity of the LGC. (Sec. 193, 1991 LGC) Privileges Retained Tax exemption privileges of the following were not withdrawn by the LGC from the following: (1) Local water districts; (2) Cooperatives duly registered under R.A. No. 6938; and (3) Non-stock and non-profit hospitals and educational institutions (Sec. 193, LGC; Sec. 234, 1991 LGC) Real Property Taxation Annual ad valorem tax on real property may be levied by: (1) Province; or (2) City; or Page 413 of 479

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(3) Municipality within Metropolitan Manila Area (i.e. Pateros is the only NCR municipality) (Sec. 232, 1991 LGC) Exemptions from Real Property Tax The following are exempted from payment of the real property tax: (a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person; (b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, non-profit or religious cemeteries and all lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable or educational purposes; (c) All machineries and equipment that are actually, directly and exclusively used by local water districts and government owned or controlled corporations engaged in the supply and distribution of water and/or generation and transmission of electric power; (d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and (e) Machinery and equipment used for pollution control and environmental protection. (Sec. 234, 1991 LGC) EXCEPTION TO THE EXEMPTION: Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all persons, whether natural or juridical, including all governmentowned or controlled corporations are hereby withdrawn upon the effectivity of this Code. (Sec. 234, 1991 LGC) NOTE: Withdrawal of exemption from RPT does not apply to GICPs/GCEs/Instrumentalities of the National Government; hence, they are not subject to real property tax as instrumentalities of the National Government or State are exempt from local taxation under Sec. 133(o) of the LGC. Being instrumentalities of the government, GICPs/GCEs are not subject to real property tax imposed by the LGUs except when beneficial use of the real property is granted to a taxable entity, which shall be liable for the same. Thus, the following have been held by the SC as being exempt from real property tax/local taxation:

(1) Philippine Amusem*nt and Gaming Corporation (Basco v. PAGCOR, G.R. No. 91649, 1991) (2) Manila International Airport Authority and Mactan Cebu International Airport Authority are instrumentalities of the government, not a GOCC; thus, its properties actually, solely and exclusively used for public purposes, consisting of the airport terminal building, airfield, runway, taxiway and the lots on which they are situated, are not subject to real property tax and the city is not justified in collecting taxes from petitioner over said properties. (MIAA v. Court of Appeals, G.R. No. 155650, July 20, 2006; MIAA v. City of Pasay, G.R. No. 163072, April 2, 2009) and Mactan-Cebu International Airport Authority (MCIAA v. City of Lapu-Lapu, G.R. No. 181756, 2015) NOTE: SC used definition of Instrumentality under the Administrative Code of 1987. (3) Light Rail Transit Authority (LRTA v. Quezon City, G.R. No. 221626, 2019) (4) Philippine Heart Center (Phil. Heart Center v. QC, G.R. No. 225409, 2020) NOTE: In the LRTA and Philippine Heart Center Cases, the SC used the GICP/GCE definition under RA 10149. REMEMBER: Government Instrumentalities with Corporate Powers (GICP)/Government Corporate Entities (GCE) - refer to instrumentalities or agencies of the government, which are neither corporations nor agencies integrated within the departmental framework, but vested by law with special functions or jurisdiction, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy usually through a charter including, but not limited to, the following: the Manila International Airport Authority (MIAA), the Philippine Ports Authority (PPA), the Philippine Deposit Insurance Corporation (PDIC), the Metropolitan Waterworks and Sewerage System (MWSS), the Laguna Lake Development Authority (LLDA), the Philippine Fisheries Development Authority (PFDA), the Bases Conversion and Development Authority (BCDA), the Cebu Port Authority (CPA), the Cagayan de Oro Port Authority, the San Fernando Port Authority, the Local Water Utilities Administration (LWUA) and the Asian Productivity Organization (APO). (Section 3(n), GOCC Governance Act of 2011, Republic Act No. 10149) Page 414 of 479

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Other limitations on taxing powers of LGUs Taxes already imposed by National Government: Generally, LGUs cannot impose taxes that are already imposed by the National Government (e.g. income tax, documentary stamps, estate taxes, customs duties, excise taxes under the NIRC, VAT) (See generally, Sec. 133, 1991 LGC) Persons exempted: LGUs cannot impose taxes, fees, and charges on (a) countryside and barangay business enterprises; (b) cooperatives duly registered under the Cooperative Code; and National Government, its agencies and instrumentalities, and local government units. (Sec. 133(n)-(o), LGC) • Hence, the MIAA, MCIAA, LRTA, PAGCOR, and Philippine Heart Center, and other GICPs/GCEs being such an instrumentalities of the National Government, are exempt from local taxation. • However, all other GOCCs (which are neither GICPs nor GCEs) are not exempt from local taxation. (MIAA v. CA, 2006)

Doctrines: (1) Local Taxpayer’s Remedy. The law requires that a dissatisfied taxpayer who questions the validity or legality of a tax ordinance must file its appeal to the Secretary of Justice within 30 days from effectivity thereof. In case the Secretary decides the appeal, a period of 30 days is allowed for an aggrieved party to go to Court. But if the Secretary does not act after the lapse of 30 days, a party could already proceed to seek relief in Court. (Reyes et al v. CA, G.R. No. 118233, 1999; Sec. 187, 1991 LGC) (2) Power of Secretary of Justice to Review Tax Ordinance. Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment.

He did not say that in his judgment it was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their functions is accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government under the Local Government Code. As we see it, that was an act not of control but of mere supervision. (Drilon v. Lim, G.R. No. 112497, 1994) The evaluation involves an exercise of quasi-judicial power by the Secretary of Justice. In deciding the same, the Secretary of Justice must ascertain the existence of factual circ*mstances specifically, whether the tax ordinance was passed in accordance with the procedure and the limitations set forth by the LGC. And from there make a conclusion as to the validity and applicability of the same to the taxable persons. Thus, the Court of Appeals is the court vested with exclusive original jurisdiction to entertain a petition for certiorari under Rule 65 questioning the acts of quasi-judicial agencies. (De Lima v. City of Manila, G.R. No. 22286, 2018) (3) Mayor Cannot Grant Local Tax Exemption. A municipal mayor who is an executive officer may not unilaterally withdraw such an expression of a policy thru the enactment of a tax." The waiver partakes of the nature of an exemption. It is an ancient rule that exemptions from taxation are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority. (Esso Standard Eastern, Inc. v. Acting Commissioner of Customs, 18 SCRA 488 (1966)). Tax exemptions are looked upon with disfavor (Western Minolco Corp. v. Commissioner of Internal Revenue, 124 SCRA 121 (1983)). Thus, in the absence of a clear and express exemption from the payment of said fees, the waiver cannot be recognized. As already stated, it is the lawmaking body, and not an executive like the mayor, who can make an exemption. (Philippine Petroleum Corp. v. Municipality of Pililla G.R. No. 90776, 1991) Local government units may, through ordinances duly approved, grant tax Page 415 of 479

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exemptions, incentives or reliefs under such terms and conditions as they may deem necessary. (Sec. 192, 1991 LGC) (4) Administrative Regulations or Executive Issuances Cannot Limit LGU’s Power of Taxation. The exercise by local governments of the power to tax is ordained by the present Constitution. To allow the continuous effectivity of the prohibition set administrative regulation (by the DOF) would be tantamount to restricting the LGU’s power to tax by mere administrative issuances. Under Section 5, Article X of the 1987 Constitution, only guidelines and limitations that may be established by Congress can define and limit such power of local governments. (Philippine Petroleum Corp. v. Municipality of Pililla G.R. No. 90776, 1991) (5) The BIR has no authority to determine the applicability of local ordinances. Besides, even the Bureau itself states that the exemption shall not apply if the sand and gravel were to be disposed of commercially. An exemption from the requirements of the provincial government should have a clear basis, whether in law, ordinance, or even from the contract itself. (Lepanto Consolidated Mining Company v. Ambanloc, G.R. 180639, 2010) (6) COA Jurisdiction Despite Local Fiscal Autonomy. The COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary, excessive, extravagant, or unconscionable expenditures of government funds. The Court had therefore previously upheld the authority of COA to disapprove payments which it finds excessive and disadvantageous to the government; to determine the meaning of “public bidding;” and when there is failure in the bidding, to disallow expenditures which it finds unnecessary according to its rules even if disallowance will mean discontinuance of foreign aid; to disallow a contract even after it has been executed and goods have been delivered. Thus, LGUs, though granted local fiscal autonomy, are still within the audit jurisdiction of the COA. It is only when the COA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court entertains a

petition questioning its rulings (Veloso v. COA, G.R. No. 193677, 2011) (7) One Year Redemption Period Counted From Date of Sale. Forfeiture of tax delinquent properties transpires no later than the purchase made by the city due to lack of a bidder from the public. This happens on the date of the sale (auction happened earlier in time), and not upon the issuance of the declaration of forfeiture (annotation on the titles happened later in time). (City of Davao v. Intestate Estate of Amado S. Dalisay, G.R. No. 207791, 2015) (8) Ministerial Duty of the Mayor. The mayor has the ministerial duty to ensure that all taxes and other revenues of the city are collected, and that city funds are applied to the payment of expenses and settlement of obligations of the city, in accordance with law or ordinance. On the other hand, under the LGC, all local taxes, fees, and charges shall be collected by the provincial, city, municipal, or barangay treasurer, or their duly-authorized deputies, while the assessor shall take charge, among others, of ensuring that all laws and policies governing the appraisal and assessment of real properties for taxation purposes are properly executed. Thus, a writ of prohibition may be issued against them to desist from further proceeding in the action or matter specified in the petition. (Ferrer v. Bautista, G.R. No. 210551, 2015) (9) Regulatory Fee vs. Cost of Regulation. To pass judicial scrutiny, a regulatory fee must not produce revenue in excess of the cost of the regulation because such fee will be construed as an illegal tax when the revenue generated by the regulation exceeds the cost of the regulation. (Ferrer v. Bautista, G.R. No. 210551, 2015) (10) No Levy of Local Taxes on Petroleum Products. While local government units are authorized to burden all such other class of goods with “taxes, fees and charges,” excepting excise taxes, a specific prohibition is imposed barring the levying of any other type of taxes with respect to petroleum products. (Petron Corporation v. Tiangco, G.R. No. 158881, 2008; Batangas City v. Pilipinas Shell Petroleum Corp., G.R. No. 187631, 2015)

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(11) Fiscal Flexibility of LGU in Fixing Additional Levy. Setting the rate of the additional levy for the special education fund at less than 1% is within the taxing power of local government units. It is consistent with the guiding constitutional principle of local autonomy. The option given to a local government unit extends not only to the matter of whether to collect but also to the rate at which collection is to be made. The limits on the level of additional levy for the special education fund under Section 235 of the Local Government Code should be read as granting fiscal flexibility to local government units. (Demaala v. COA, G.R. No. 199752, 2015) (12) Amusem*nt Taxes. By operation of Sec. 151 of the LGC extending to cities the authority of provinces and municipalities to levy certain taxes, fees, and charges, cities may therefore validly levy amusem*nt taxes on cinemas subject to the parameters set forth under the law. (Film Development Council of the Philippines v. City of Cebu et al, G.R. No. 204418, 2015) However, resorts, swimming pools, bath houses, hot springs and tourist spots are not proper subjects of amusem*nt taxes as they do not belong to the same category or class as theaters, cinemas, concert halls, circuses, and boxing stadia. Amusem*nt Places include theaters, cinemas, concert halls, circuses and other places of amusem*nt where one seeks admission to entertain oneself by seeing or viewing the show or performances. Accordingly, 'other places of amusem*nt' must be interpreted in light of the typifying characteristic of being venues "where one seeks admission to entertain oneself by seeing or viewing the show or performances" or being venues primarily used to stage spectacles or hold public shows, exhibitions, performances, and other events meant to be viewed by an audience. (Pelizloy Realty v. Benguet, G.R, No. 183137, 2013) (13) Taxes levied by LGUs shall accrue exclusively to the LGU and to earmark, if not altogether confiscate, the income to be received by the LGU from the taxpayers in favor of and for transmittal to the Film Development Council of the Philippines, is repugnant to the power of LGUs to

apportion their resources in line with their priorities. (Film Development Council of the Philippines v. City of Cebu et al, G.R. No 204418, 2015) (14) A certiorari petition questioning an interlocutory order issued in a local tax case falls under the jurisdiction of the CTA. (CE Casecnan Water and Energy Company, Inc. v. The Province of Nueva Ecija, G.R. No. 196278, 2015) (15) The socialized housing tax charged by the city is a tax which is within its power to impose. Aside from the specific authority vested by Section 43 of the UDHA, cities are allowed to exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities which include, among others, programs and projects for low-cost housing and other mass dwellings. The collections made accrue to its socialized housing programs and projects. The tax is not a pure exercise of taxing power or merely to raise revenue; it is levied with a regulatory purpose. The levy is primarily in the exercise of the police power for the general welfare of the entire city. It is greatly imbued with public interest. (Ferrer v. Bautista, G.R. No. 210551, 2015) (16) Regulation of Activity and Tax. The garbage fee is a charge fixed for the regulation of an activity. It is not a tax and cannot violate the rule on double taxation. (Ferrer v. Bautista, G.R. No. 210551, 2015) Just Share in the National Taxes (formerly Internal Revenue Allotment (IRA) share of LGUs) General Rule: The current sharing is 40% local, 60% national. LGUs shall have a 40% share in the national taxes based on the collection of the third fiscal year preceding the current fiscal year. (Sec. 284(c), 1991 LGC) Exception: That in the event that the national government incurs an unmanageable public sector deficit, the President of the Philippines is hereby authorized, upon the recommendation of Secretary of Finance, Secretary of Interior and Local Government and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Page 417 of 479

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Houses of Congress and the presidents of the "liga," to make the necessary adjustments in the allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national taxes of the third fiscal year preceding the current fiscal year. (Sec. 284, par. 2, 1991 LGC).

also be imprudent for the Court to compel the Executive to start from scratch and jettison all existing plans and allotments to the detriment of the 2020 and 2021 GAA.” (Mandanas v. Ochoa, G.R. Nos. 199802 & 208488 (Notice), October 8, 2019)

Requisites for Exception: (1) Unmanageable public sector deficit; (2) Recommendation of the Secretaries of (a) Finance, (b) Internal and Local Gov’t, and (c) Budget and Management; and (3) Consultation with (a) heads of both houses of Congress, and (b) presidents of the liga. (4) Allotment shall not be lower than 30% of the national taxes collection. (Sec. 284, par. 2, 1991 LGC)

Automatic Release of Just Share (1) Section 6, Article X the 1987 Constitution textually commands the automatic release of the just share in the national taxes, viz.: Section 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (2) The LGC implements this by providing that the share of each LGU shall be released, without need of any further action, directly to the respective treasurer on a quarterly basis within five (5) days after the end of each quarter, and which shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. (Sec. 286(a), 1991 LGC)

NOTE: (1) The SC in Mandanas v. Ochoa deleted all the phrase “internal revenue” in the LGC for being unconstitutional when referring to the just share of LGUs, particularly in Secs. 284, 285, 287, and 290. Thus, any mention of "Internal Revenue Allotment" or "IRA" in Republic Act No. 7160 (Local Government Code) and its Implementing Rules and Regulations shall be understood as pertaining to the allotment of the Local Government Units derived from the national taxes. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3, 2018) (2) The Mandanas ruling will only apply starting with the 2022 budget cycle since the 03 July 2018 decision became final and executory on 10 June 2019. Inevitably, the 2019 Budget can no longer include the changes brought about by Our July 3, 2018 decision. The SC said: “While the amounts and the national taxes during the third fiscal year preceding or in 2016 can already be determined as of this time, it would be too late to include the same in the 2019 budget since Congress had already approved the 2019 General Appropriations Act (GAA), and we are already in the last quarter of the year. Neither can the same amounts be considered in drawing up the 2020 and 2021 budget because their budget cycles have already commenced. Notable that for the 2020 budget, Congress is already in the process of conducting budget hearings to finalize the GAA. Adding the amounts based on our ruling in the 2020 budget would only disrupt the proceedings and impede the passing of the GAA. It would BACK TO TOC

Section 6 does not mention of appropriation as a condition for the automatic release of the just share to the LGUs. This is because Congress not only already determined the just share through the LGC's fixing the percentage of the collections of the NIRTs to constitute such fair share subject to the power of the President to adjust the same in order to manage public sector deficits subject to limitations on the adjustments, but also explicitly authorized such just share to be "automatically released" to the LGUs in the proportions and regularity set under Section 285 of the LGC without need of annual appropriation. To operationalize the automatic release without need of appropriation, Section 286 of the LGC clearly provides that the automatic release of the just share directly to the provincial, city, municipal or barangay treasurer, as the case may be, shall be "without need of any further action." (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3, 2018) Withholding 10 percent of the LGUs' IRA "pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation" in the country is unconstitutional and invalid. Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdbacks which means "something held back or withheld, often temporarily." Hence, the "temporary" nature of the retention by the national government does Page 418 of 479

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not matter. Any retention is prohibited. (Pimentel v. Aguirre, G.R. No. 132988, 2015) The National Taxes Included in Mandanas v. Ochoa The national taxes to be included in the base for computing the just share the LGUs shall henceforth be, but shall not be limited to, the following: (1) The NIRTs enumerated in Section 21 of the NIRC, as amended, to be inclusive of the VATs, excise taxes, and DSTs collected by the BIR and the BOC, and their deputized agents; (2) Tariff and customs duties collected by the BOC; (3) 50% of the VATs collected in the ARMM, and 30% of all other national taxes collected in the ARMM; the remaining 50% of the VATs and 70% of the collections of the other national taxes in the ARMM shall be the exclusive share of the ARMM pursuant to Sections 9 and 15 of R.A. No. 9054; (4) 60% of the national taxes collected from the exploitation and development of the national wealth; the remaining 40% will exclusively accrue to the host LGUs pursuant to Section 290 of the LGC; (5) 85% of the excise taxes collected from locally manufactured Virginia and other tobacco products; the remaining 15% shall accrue to the special purpose funds pursuant created in R.A. No. 7171 and R.A. No. 7227; (6) The entire 50% of the national taxes collected under Section 106 (VAT on goods/properties), Section 108 (VAT on services/lease) and Section 116 (Tax on VAT exempt persons) of the NIRC in excess of the increase in collections for the immediately preceding year; and (7) 5% of the franchise taxes in favor of the national government paid by franchise holders in accordance with Section 6 of R.A. No. 6631 and Section 8 of R.A. No. 6632. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3, 2018) IRA/National Taxes Allotment The share of local government units in the allotment shall be collected in the following manner: (a) Provinces - Twenty-three percent (23%); (b) Cities - Twenty-three percent (23%); (c) Municipalities - Thirty-four percent (34%); and (d) Barangays - Twenty percent (20%). (Sec. 285, 1991 LGC)

IRA/National Taxes Sharing Formula (1) The share of each province, city, and municipality shall be determined on the basis of the following formula: (a) Population - Fifty percent (50%); (b) Land Area - Twenty-five percent (25%); and (c) Equal sharing - Twenty-five percent (25%). (Sec. 285, 1991 LGC) (2) The share of each barangay with a population of not less than one hundred (100) inhabitants shall not be less than Eighty thousand (P80,000.00) per annum chargeable against the twenty percent (20%) share of the barangay from the allotment, and the balance to be allocated on the basis of the following formula: (a) Population - Sixty percent (60%); and (b) Equal sharing - Forty percent (40%). (Sec. 285, 1991 LGC) 20% of National Allotment for Development Projects Each local government unit shall appropriate in its annual budget no less than twenty percent (20%) of its annual (internal revenue/national taxes) allotment for development projects. Copies of the development plans of local government units shall be furnished the Department of Interior and Local Government. (Sec. 287, 1991 LGC) Equitable Share of LGUs in the Utilization and Development of National Wealth (1) Local government units shall have an equitable share in the proceeds derived from the utilization and development of the national wealth within their respective areas, including sharing the same with the inhabitants by way of direct benefits. (Sec. 289, 1991 LGC) (2) Local government units shall, in addition to the allotment, have a share of forty percent (40%) of the gross collection derived by the national government from the preceding fiscal year from mining taxes, royalties, forestry and fishery charges, and such other taxes, fees, or charges, including related surcharges, interests, or fines, and from its share in any co-production, joint venture or production sharing agreement in the utilization and development of the national wealth within their territorial jurisdiction. (Sec. 290, 1991 LGC) (3) Local government units shall have a share based on the preceding fiscal year from the proceeds derived by any government Page 419 of 479

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agency or government-owned or controlled corporation engaged in the utilization and development of the national wealth based on the following formula whichever will produce a higher share for the local government unit: (a) One percent (1%) of the gross sales or receipts of the preceding calendar year; or (b) Forty percent (40%) of the mining taxes, royalties, forestry and fishery charges and such other taxes, fees or charges, including related surcharges, interests, or fines the government agency or government owned or controlled corporation would have paid if it were not otherwise exempt. (Sec. 291, 1991 LGC) (4) The share in the preceding Section (i.e. Sec. 291) shall be distributed in the following manner: (a) Where the natural resources are located in the province: (i) Province - Twenty percent (20%); (ii) Component City/Municipality - Forty-five percent (45%); and (iii) Barangay - Thirty-five percent (35%) Provided, however, That where the natural resources are located in two (2) or more provinces, or in two (2) or more component cities or municipalities or in two (2) or more barangays, their respective shares shall be computed on the basis of: (i) Population - Seventy percent (70%); and (ii) Land area - Thirty percent (30%) (b) Where the natural resources are located in a highly urbanized or independent component city: (i) City - Sixty-five percent (65%); and (ii) Barangay - Thirty-five percent (35%)

this Section (i.e. Sec. 292). (Sec. 292, 1991 LGC) (5) The share of local government units from the utilization and development of national wealth shall be remitted in accordance with Section 286 of this Code (i.e. automatic release similar to national taxes allotment): Provided, however, That in the case of any government agency or government-owned or controlled corporation engaged in the utilization and development of the national wealth, such share shall be directly remitted to the provincial, city, municipal or barangay treasurer concerned within five (5) days after the end of each quarter. (Sec. 293, 1991 LGC) (6) The proceeds from the share of local government units pursuant to this chapter shall be appropriated by their respective sanggunian to finance local government and livelihood projects: Provided, however, That at least eighty percent (80%) of the proceeds derived from the development and utilization of hydrothermal, geothermal, and other sources of energy shall be applied solely to lower the cost of electricity in the local government unit where such a source of energy is located. (Sec. 294, 1991 LGC)

d. Closure and Opening of Roads Power to Open or Close Roads (1) A local government unit may, pursuant to an ordinance, permanently or temporarily close or open any local road, alley, park, or square falling within its jurisdiction. (Sec. 21(a), 1991 LGC) (2) In addition, any city, municipality, or barangay may, by a duly enacted ordinance, temporarily close and regulate the use of any local street, road, thoroughfare, or any other public place where shopping malls, Sunday, flea or night markets, or shopping areas may be established and where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold and dispensed to the general public. (Sec. 21(d), 1991 LGC)

Provided, however, That where the natural resources are located in such two (2) or more cities, the allocation of shares shall be based on the formula on population and land area as specified in paragraph (a) of Page 420 of 479 BACK TO TOC

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Requirements and Conditions for Permanent Closure (1) Ordinance Approved by 2/3 of Sanggunian Members. Such ordinance must be approved by at least two-thirds (2/3) of all the members of the sanggunian. (Sec. 21(a), 1991 LGC) (2) Adequate Substitute. When necessary, an adequate substitute for the public facility that is subject to closure is provided. (Sec. 21(a), 1991 LGC) (3) Provisions for the Maintenance of Public Safety. No such way or place or any part thereof shall be permanently closed without making provisions for the maintenance of public safety therein. (Sec. 21(b), 1991 LGC) (4) For Other Lawful Use or Conveyance. A property thus permanently withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local government unit concerned may be lawfully used or conveyed: Provided, however, That no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. (Sec. 21(b), 1991 LGC)

Permanent Closure vs. Temporary Closure PERMANENT TEMPORARY CLOSURE CLOSURE REQUISITES 1. Ordinance 1. Should be a must be National or local approved by road, alley, park, or at least twosquare thirds (2/3) of 2. Temporarily closure all the during an members of actual emergency, the or fiesta Sanggunian celebrations, public 2. When rallies, agricultural necessary, or industrial fairs, or an adequate an undertaking of substitute for public works and the public highways, facility that is telecommunications, subject to and waterworks closure is projects. provided. 3. The duration of 3. Provisions which shall be for the specified by the maintenance local chief executive of public concerned in a safety shall written order. be made.

Requirements and Conditions for Temporary Closure (1) Any national or local road, alley, park, or square may be temporarily closed during an actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs, or an undertaking of public works and highways, telecommunications, and waterworks projects. (Sec. 21(c), 1991 LGC) (2) The duration of which shall be specified by the local chief executive concerned in a written order. (Sec. 21(c), 1991 LGC) (3) That no national or local road, alley, park, or square shall be temporarily closed for athletic, cultural, or civic activities not officially sponsored, recognized, or approved by the local government unit concerned. (Sec. 21(c), 1991 LGC) Thus, temporary closure for athletic, cultural, or civic activities must be officially sponsored, recognized, or approved by the LGU concerned.

National vs. Local (vis-à-vis Road, Alley, Park or Square) NATIONAL LOCAL APPLIES TO ROAD, ALLEY, PARK OR SQUARE Temporary closure 1. Temporary only. 2. Permanent closure

NOTE: Temporary closure must be pursuant to an ordinance as per Sec. 21(a) of the LGC.

The passage of an ordinance by an LGU to effect the opening of a local road can have no applicability if the subdivision road lots sought to be opened to decongest traffic in the area have already been donated to, and the titles thereto already issued in the name of the City Government. Having been already donated or turned over to the City Government, the road lots in question have since then taken the nature of public roads which are withdrawn from the commerce of man and hence, placed beyond the private rights or claims of the homeowner’s association. Accordingly, homeowner’s association was not in the lawful exercise of its predicated rights when it built obstructing structures closing the road lots in question to vehicular traffic for the use of the general public. Consequently, barangay’s act of passing the disputed barangay resolution, the implementation of which is sought to be restrained by homeowner’s Page 421 of 479

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association, had for its purpose not the opening of a private road but may be considered merely as a directive or reminder to the Appellant to cause the opening of a public road which should rightfully be open for use to the general public. (New Sun Valley v. Sangguniang Barangay, G.R. 156686, 2011)

(5) Regular session: Fixed on the first day of session, 1x a week. (Sec. 52(a), 1991 LGC)

e. Legislative Power (a) Requisites Ordinance

Valid

(1) Must not Contravene the Constitution or any statute (2) Must not be Unfair or oppressive (3) Must not be Partial or discriminatory (4) Must not Prohibit, but may regulate trade (5) Must not be Unreasonable (6) Must be General and consistent with public policy NOTE: To measure if an ordinance is valid, see and remember the previous discussions on the TwoPronged Test (Mosqueda v. Pilipino Growers) and the Substantive Requirements (SJS v. Atienza). Local Legislative Body (1) Exercised by the Sanggunian (Panlalawigan, Panglungson, Bayan, Barangay) (Secs. 476, 458, 414, 391, 1991 LGC) (2) Presiding Officer: LEGISLATIVE BODY Sangguniang Panlalawigan Sangguniang Panglungsod

(4) Mandatory Disclosures: Sanggunian members are required to do mandatory disclosures that may result in any conflict of interest (financial, business, professional). (Sec. 51, 1991 LGC)

PRESIDING OFFICER Vice-Governor Vice-Mayor

Sangguniang Bayan

Vice-Mayor

Sangguniang Barangay

Punong Barangay

The presiding officer shall vote only to break a tie. In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. (Sec. 49, 1991 LGC) (3) Rules of Procedure: Sangguanian concerned shall adopt its own rules of procedure. (Sec. 50, 1991 LGC)

(6) Special Session: When public interest so demands, special sessions may be called by the local chief executive or by a majority of the members of the sanggunian. (Sec. 52(b), 1991 LGC) (7) Quorum: A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. (Sec. 53(a), 1991 LGC) If there is no quorum, presiding officer may declare a recess until quorum is constituted or majority of members present may adjourn from day to day and may compel immediate attendance. (Sec. 53(b), 1991 LGC) If there is still no quorum despite the enforcement of the immediately preceding subsection, no business shall be transacted. (Sec. 53(c), 1991 LGC) Approval/Disapproval of Ordinances (1) Every ordinance enacted by the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan shall be presented to the provincial governor or city or municipal mayor, as the case may be. (2) If the local chief executive concerned APPROVES the same, he shall affix his signature on each and every page thereof; (3) If the local chief executive concerned DISAPPROVES the same, he shall VETO it and return the same with his objections to the sanggunian, which may proceed to reconsider the same. (4) The veto shall be communicated by the local chief executive concerned to the sanggunian within fifteen (15) days in the case of a province, and ten (10) days in the case of a city or a municipality; otherwise (i.e. if the veto is not communicated to the sanggunian concerned within the prescribed period), the ordinance shall be deemed approved as if he had signed it. (5) The sanggunian concerned may override the veto of the local chief executive by twothirds (2/3) vote of all its members, thereby Page 422 of 479

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making the ordinance or resolution effective for all legal intents and purposes. (6) Ordinances enacted by the sangguniang barangay shall, upon approval by the majority of all its members, be signed by the punong barangay. (Sec. 54, LGC) NOTE: No such veto for the Punong Barangay since already a member of the Sangguniang Barangay. Any attempt to enforce any ordinance or any resolution approving the local development plan and public investment program, after the disapproval thereof, shall be sufficient ground for the suspension or dismissal of the official or employee concerned. (Sec. 58, 1991 LGC) Grounds and Limitation on the Veto Power of the Local Chief Executive (1) The local chief executive may veto any ordinance of the sanggunian panlalawigan, sangguniang panlungsod, or sanggunian bayan on the ground that it is ultra vires or prejudicial to the public welfare, stating his reasons therefor in writing. (2) The local chief executive, except the punong barangay, shall have the power to veto any particular item or items of an appropriations ordinance, an ordinance or resolution adopting a local development plan and public investment program, or an ordinance directing the payment of money or creating liability. In such a case, the veto shall not affect the item or items which are not objected to. (3) The vetoed item or items shall not take effect unless the sanggunian overrides the veto in the manner herein provided; otherwise, the item or items in the appropriations ordinance of the previous year corresponding to those vetoed, if any, shall be deemed reenacted. (4) The local chief executive may veto an ordinance or resolution only once. The sanggunian may override the veto of the local chief executive concerned by twothirds (2/3) vote of all its members, thereby making the ordinance effective even without the approval of the local chief executive concerned. (Sec. 55, 1991 LGC) Ordinance vs. Resolution ORDINANCE RESOLUTION Has the force and effect Mere opinion of law

Has general application; more or less permanent Temporary in nature in character. Third reading is required Third reading not required Usually used in the Usually used in the exercise of the LGU’s LGU’s exercise of governmental functions proprietary functions Subject to veto

Only some may be subject to veto and review

Presumptions regarding local legislation (CRV) (1) Constitutionality (2) Regularity (3) Validity Requirement After Approval of the Ordinance (1) For Component City and Municipality Ordinances PROCESS: (a) Within three (3) days after approval, the secretary to the sanggunian panlungsod or sangguniang bayan shall forward to the sangguniang panlalawigan for review, copies of approved ordinances and the resolutions approving the local development plans and public investment programs formulated by the local development councils. (Sec. 56(a, 1991 LGC) (b) Within thirty (30) days after the receipt of copies of such ordinances and resolutions, the sangguniang panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial prosecutor for prompt examination. The provincial attorney or provincial prosecutor shall, within a period of ten (10) days from receipt of the documents, inform the sangguniang panlalawigan in writing of his comments or recommendations, which may be considered by the sangguniang panlalawigan in making its decision. (Sec. 56(b), 1991 LGC) ACTION: (c) If the sangguniang panlalawigan finds that such an ordinance or resolution is beyond the power conferred upon the sangguniang panlungsod or sangguniang bayan concerned, it shall declare such ordinance or resolution invalid in whole or in part. The Page 423 of 479

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sangguniang panlalawigan shall enter its action in the minutes and shall advise the corresponding city or municipal authorities of the action it has taken. (Sec. 56(c), 1991 LGC) (d) If no action has been taken by the sangguniang panlalawigan within thirty (30) days after submission of such an ordinance or resolution, the same shall be presumed consistent with law and therefore valid. (Sec. 56 (d), 1991 LGC) (2) For Barangay Ordinances Approved ordinances shall be forwarded to the sangguniang concerned for review if consistent with law or city or municipal ordinances. PROCESS: (a) Within ten (10) days after its enactment, the sangguniang barangay shall furnish copies of all barangay ordinances to the sangguniang panlungsod or sangguniang bayan concerned for review as to whether the ordinance is consistent with law and city or municipal ordinances. (Sec. 57(a), 1991 LGC) (b) If the sangguniang panlungsod or sangguniang bayan, as the case may be, fails to take action on barangay ordinances within thirty (30) days from receipt thereof, the same shall be deemed approved. (Sec. 57(b), 1991 LGC) ACTION: (c) If the sangguniang panlungsod or sangguniang bayan, as the case may be, finds the barangay ordinances inconsistent with law or city or municipal ordinances, the sanggunian concerned shall, within thirty (30) days from receipt thereof, return the same with its comments and recommendations to the sangguniang barangay concerned for adjustment, amendment, or modification; in which case, the effectivity of the barangay ordinance is suspended until such time as the revision called for is effected. (Sec. 57(c), 1991 LGC) Effectivity of Ordinances (1) For Provinces, Component Cities, and Municipalities

development plan and public investment program, the same shall take effect after ten (10) days from the date a copy thereof is posted in a bulletin board at the entrance of the provincial capitol or city, municipal, or barangay hall, as the case may be, and in at least two (2) other conspicuous places in the local government unit concerned. (Sec. 59(a), 1991 LGC) (b) The secretary to the sanggunian concerned shall cause the posting of an ordinance or resolution in the bulletin board at the entrance of the provincial capitol and the city, municipal, or barangay hall in at least two (2) conspicuous places in the local government unit concerned not later than five (5) days after approval thereof. The text of the ordinance or resolution shall be disseminated and posted in Filipino or English and in the language understood by the majority of the people in the local government unit concerned, and the secretary to the sanggunian shall record such fact in a book kept for the purpose, stating the dates of approval and posting. (Sec. 59(b), 1991 LGC) With Penal Sanctions (a) The gist of all ordinances with penal sanctions shall be published in a newspaper of general circulation within the province where the local legislative body concerned belongs. In the absence of any newspaper of general circulation within the province, posting of such ordinances shall be made in all municipalities and cities of the province where the sanggunian of origin is situated. (Sec. 59(c), 1991 LGC) (b) Ordinances with penal sanctions shall be posted at prominent places in the provincial capitol, city, municipal or Barangay hall, as the case may be, for a minimum period of three (3) consecutive weeks. Such ordinances shall also be published in a newspaper of general circulation, where available, within the territorial jurisdiction of the local government unit concerned, except in the case of Barangay ordinances. Unless otherwise provided therein, said ordinances shall take effect on the day following its publication, or at the end of the period of posting, whichever occurs later. (Sec. 511(a), 1991 LGC) NOTE: This should also apply to HUCs and ICCs.

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In the case of highly urbanized and independent component cities, the main features of the ordinance or resolution duly enacted or adopted shall, in addition to being posted, be published once in a local newspaper of general circulation within the city: Provided, That in the absence thereof the ordinance or resolution shall be published in any newspaper of general circulation. (Sec. 59(d), 1991 LGC) NOTE: This should apply to all ordinances of HUCs and ICCs, with or without penal sanctions.

Doctrines: (1) Notice and hearing not required for typographical error. A municipal resolution correcting an alleged typographical error in a zoning ordinance does not have to comply with the requirements of notice and hearing, which are required for the validity and effectiveness of zoning ordinances. (The Learning Child, Inc. v. Ayala Alabang Village Association, G.R. Nos. 134269/134440/144518, 2010) (2) An act which is outside of the municipality’s jurisdiction is considered as a void ultra vires act, while an act attended only by an irregularity but remains within the municipality’s power is considered as an ultra vires act subject to ratification and/or validation. Case law states that public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires. (Land Bank of the Philippines v. Cacayuran, G.R. No. 17165, 2013) (3) Power of Sangguniang Panlalawigan to declare an ordinance invalid. An ordinance authorizing the expropriation of parcels of land for the creation of a freedom park cannot be struck down for the reason that the municipality has an existing freedom park still suitable for the purpose because under Section 56 (c) of the LGC, the Sangguniang Panlalawigan can declare the ordinance invalid only if it is beyond the power of the Sangguniang Bayan. (Moday v. CA, G.R. No. 107916, 1997)

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(4) Unreasonable ordinance is invalid. An ordinance penalizing any person or entity engaged in the business of selling tickets to movies or other public exhibitions, games or performances which would charge children between 7 and 12 years of the full price of tickets instead of only one-half the amount is void because it is unreasonable. It deprives sellers of the tickets of their property without due process. A ticket is a property right and may be sold for such price as the owner of it can obtain. There is nothing malicious in charging children the same price as adults. (Balacuit v. CFI of Agusan del Norte, G.R. No. L-38429, 1988) (5) Liga ng Mga Barangay has no legislative powers. The Liga ng mga Barangay cannot exercise legislative powers because it is not a local government unit and its primary purpose is to determine representation of the liga in the sanggunians to ventilate, articulate and crystallize issues affecting barangay government administration, and to secure solutions for them through proper and legal means. IOnon v. Fernandez, G.R. No. 139813, 2001)

(b) Local Initiative Referendum

and

Local Initiative - The legal process whereby the registered voters of a LGU may directly propose, enact, or amend any ordinance. It may be exercised by all registered voters of the provinces, cities, municipalities, and barangays. (Secs. 120 and 121, 1991 LGC) Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (Sec. 3(a1), RA 6735) Thus, a resolution can also be the proper subject of a local initiative. (SBMA v. COMELEC, G.R. No. 25416, 1996) Local Referendum - The legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. The local referendum shall be held under the control and direction of the COMELEC within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of barangays. Page 425 of 479

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The COMELEC shall certify and proclaim the results of the said referendum. (Sec. 126, 1991 LGC)

i. Provinces and cities - at least 1000 registered voters ii. Municipality - at least 100 registered voters iii. Barangay - at least 50 registered voters

Limitations on the Sanggunian (1) The Sanggunian CANNOT repeal, modify or amend any proposition or ordinance approved through system of initiative/referendum within 6 months from the date of approval thereof. (2) The Sanggunian can amend, modify or repeal the proposition/ordinance within 3 years thereafter by a vote of ¾ of all its members. (3) For barangays, the applicable period is 18 months. (Sec. 125, 1991 LGC)

(2) Sanggunian concerned has 30 days to act on the petition. If the Sanggunian does not take any favorable action, the proponents may invoke the power of initiative, giving notice to Sanggunian. (3) Proponents will have the following number of days to collect required number of signatures

Grounds for Null and Void Proposition The proper courts can still declare void any proposition adopted pursuant to an initiative or referendum on the following grounds: (1) Violation of the Constitution (2) Want of capacity of the Sanggunian concerned to enact the measure (Sec. 127, 1991 LGC)

Procedure for Local Initiative (1) Number of voters who should file petition with Sanggunian concerned:

i. Provinces and cities - 90 days ii. Municipalities - 60 days iii. Barangays -30 days (4) Signing of petition (5) Date for initiative set by COMELEC if required number of signatures has been obtained. (Sec. 122, 1991 LGC) Limitations on Local Initiative (a) The power of local initiative shall not be exercised more than once a year. (b) Initiative shall extend only to subjects or matters which are within the legal powers of the sanggunian to enact. (c) If at any time before the initiative is held, the sanggunian concerned adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. (Sec. 124, 1991 LGC) Effectivity of Proposition (a) If proposition is approved by a majority of the votes cast, it will take effect 15 days after certification by the COMELEC as if the Sanggunian and the local chief executive had taken affirmative action. (b) If it fails to obtain required number of votes, it is considered defeated. (Sec. 123, 1991 LGC)

Corporate Powers

Corporate Powers: (1) To have continuous succession in its corporate name. [Sec. 22, LGC (2) To sue and be sued. [Sec. 22, LGC] (3) To have and use a corporate seal. [Sec. 22, LGC] (4) To acquire and convey real or personal property. [Sec. 22, LGC] (5) To enter into contracts. [Sec. 22, LGC] (6) To negotiate and secure financial grants. [Sec. 23, LGC] (7) To establish a responsible organization. Local government units shall have the power and authority to establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives and priorities. [Sec. 18, LGC] (8) To enter into cooperative undertakings with other LGUs. [Sec. 33, LGC] (9) To enter into joint ventures and such other cooperative arrangements with people's and non-governmental organizations. [Sec. 35, LGC] (10) To create indebtedness and to enter into credit and other financial transactions. [Secs. 295-303, LGC] (11) To issue bonds and other long-term securities. [Sec. 299, LGC] (12) To extend loans, grants, or subsidies to other local government units. [Sec. 300, LGC] Page 426 of 479

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(13) To enter into infrastructure contracts. [Sec. 303, LGC] (14) To exercise such other powers as are granted to corporations, subject to limitations imposed by the LGC and special laws. [Sec. 22, LGC] Requisites of valid municipal contracts: (FOLSID “false ID”) (1) It must comply with Formal requirements (2) In case entered into by Local chief executive on behalf of LGU, prior authorization by Sanggunian concerned is needed. (3) It must comply with Substantive requirements. (4) LGU has express, implied, or Inherent power to enter into a particular contract. (5) It must be entered into by the proper Department, board, committee, or agent. The doctrine of separate personality of a corporation finds no application in the Cooperative Development Authority which was created by virtue of RA 6939, since it is not a private entity but a government agency. (Verzosa v. Carague, G.R. No. 157838, 2011). For local government infrastructure projects, Regional Trial Courts may issue provisional injunctive reliefs against government infrastructure projects only when: (1) there are compelling and substantial constitutional violations; (2) there clearly exists a right in esse; (3) there is a need to prevent grave and irreparable injuries; (4) there is a demonstrable urgency to the issuance of the injunctive relief; and (5) when there are public interest at stake in restraining or enjoining the project while the action is pending that far outweighs (a) the inconvenience or costs to the party to whom the project is awarded and (b) the public benefits that will result from the completion of the project. The time periods for the validity of temporary restraining orders issued by trial courts should be strictly followed. No preliminary injunction should issue unless the evidence to support the injunctive relief is clear and convincing. (Dynamic Builders and Construction Co., Inc. v.

Presbitero, G.R. No. 174201, 2015) A municipality is a real party-in-interest and an indispensable party that stands to be directly affected by any judicial resolution on the case assailing the validity of the loan, considering that: (a) the contracting parties to the loans are the bank and the municipality; and (b) the municipality owns the public plaza as well as the improvements constructed thereon, and must therefore be impleaded in the case. (Land Bank v. Cacayuran, G.R. No. 191667, 2015) Liabilities arising from construction contracts of LGUs do not partake of loans or forbearance of money but are in the nature of contracts of service. Hence, the rate of legal interest imposable on the liability to pay for the service is 6% per annum. (WT Construction, Inc. v. The Province of Cebu, G.R. No. 208984, 2015) To Sue and Be Sued LGUs have the power to sue and be sued. (Local Government Code, Sec. 22(a)(2). Because of the statutory waiver, LGUs are not immune from suit. The OSG may not be compelled to represent local government units. The LGC vests exclusive authority upon the LGU’s legal officers to be counsels of local government units. Even the employment of a special legal officer is expressly allowed by the law only upon a strict condition that the action or proceeding which involves the component city or municipality is adverse to the provincial government or to another component city or municipalit. (OSG v. CA and Municipal Government of Suguiran, G.R. No. 199027, 2014) A municipality can be sued for damages arising from injuries sustained by a pedestrian who was hit by a glass pane that fell from a dilapidated window frame of the municipal hall. Under Section 24 of the LGC and Article 2189 of the Civil Code, the municipality is liable for damages arising from injuries to persons by reason of negligence of local government units on the defective condition of the municipal hall, which is under their control and supervision. To Acquire and Sell Property Properties of the public dominion devoted to public use and made available to the public in general are outside the commerce of persons and cannot be disposed of or leased by the LGU to private persons. (Macasiano v. Diokno, G.R. No. 97764, 1992)

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Pursuant to the regalian doctrine, any land that has never been acquired through purchase, grant or any other mode of acquisition remains part of the public domain and is owned by the State. LGUs cannot appropriate to themselves public lands without prior grant from the government. (Rural Bank of Anda v. Roman Catholic Archbishop of Lingayen-Dagupan, G.R. No. 155051, 2007) To Enter Into Contracts Unless otherwise provided in the LGC, no contract may be entered into by the local chief executive in behalf of the LGU without prior authorization by the Sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in the provincial capitol or the city, municipal or barangay hall (Local Government Code, Sec. 22(c)). Without the council authorization/ ratification, the contract is unenforceable. While the authorization of local chief executive need not be in the form of an ordinance, the obligation (i.e. incurring a loan) which the said local executive is authorized to enter into must be made pursuant to a law or ordinance. (LBP v. Cacayuran, G.R. No. 191667, 2013) The prior authorization may be in the form of an appropriation ordinance passed for the year which specifically covers the project, cost or contract to be entered into by the LGU. (Quisumbing v. Garcia, G.R. No. 175527, 2008) Those beyond the powers of the LGU may be subject to veto of the local executive or review of the local legislative for being ultra vires.

g. Ultra Vires Acts Generally, an ultra vires act is one committed outside the object for which a corporation is created as defined by the law of its organization and therefore beyond the powers conferred upon it by law. There are two (2) types of ultra vires acts. 2 Types of Ultra Vires Acts: Void Ultra Vires vs. Irregular Ultra Vires VOID IRREGULAR ULTRA VIRES ULTRA VIRES Those which (a) are Those which (a) are entered into beyond the entered into by the express, implied or improper department, inherent powers of the board, officer of agent; local government unit, and (b) do not comply e.g. converting a public with the formal plaza into a commercial requirements of a

center; and (b) do not written contract e.g., comply with the the Statute of Frauds. substantive requirements of law, e.g., when expenditure of public funds is to be made, there must be an actual appropriation and certificate of availability of funds. (LBP v. Cacayuran, G.R. No. 191667, 2013)

2. LIABILITY OF LOCAL GOVERNMENT UNITS a. Suitability of LGUs The general rule spelled out in Section 3, Article XVI of the Constitution is that the state and its political subdivisions may not be sued without their consent. Otherwise put, they are open to suit but only when they consent to it. Consent is implied when the government enters into a business contract, as it then descends to the level of the other contracting party; or it may be embodied in a general or special law such as that found in Book I, Title I, Chapter 2, Section 22 of the Local Government Code of 1991, which vests local government units with certain corporate powers — one of them is the power to sue and be sued. (Municipality of Hagonoy v. Dumdum, G.R. No. 168289, 2010) Suability vs. Liability A distinction should first be made between suability and liability. Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circ*mstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable. (Municipality of San Fernando v. Firme, G.R. No. 52179, 8 April 1991 citing United States of America v. Guinto, supra, p. 659-660) Additionally, as held in City of Caloocan v. Allarde, where the suability of the state is conceded and by which liability is ascertained judicially, the state is at liberty to determine for itself whether to satisfy the judgment or not. Execution may not issue upon such judgment, because statutes waiving nonsuability do not authorize the seizure of property to satisfy judgments recovered from the action. These statutes only convey an implication that the Page 428 of 479

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legislature will recognize such judgment as final and make provisions for its full satisfaction. Thus, where consent to be sued is given by general or special law, the implication thereof is limited only to the resultant verdict on the action before execution of the judgment. (Municipality of Hagonoy v. Dumdum, G.R. No. 168289, 22 March 2010 citing City of Caloocan v. Allarde, 457 Phil. 543, 553 (2003)) Death or Injury to Persons or Damage to Property Local government units and their officials are not exempt from liability for death or injury to persons or damage to property. (Sec. 24, 1991 LGC) NOTE: (1) It is not yet well-settled if Sec. 24 of the LGC extends to both governmental duties and proprietary functions. (2) Two schools of thought: a) Sec. 24 of the LGC applies to both governmental and proprietary functions; b) Sec. 24 of the LGC applies to proprietary functions only and not to governmental or sovereign functions or duties. (3) It is submitted that Sec. 24 of the LGC applies only to proprietary functions and will make the LGU and its officials liable for governmental functions if the acts are not in good faith, dishonest, malicious, whimsical, capricious, or arbitrary, which must be proven in court.

b. Governmental Functions vs. Proprietary Functions (a) If the injury is caused in the course of the performance of a governmental function or duty no recovery, as a rule, can be had from the municipality unless there is an existing statute on the matter. (b) No recovery can be had also from municipal officials so long as they performed their duties honestly and in good faith or that they did not act wantonly and maliciously. (Torio v. Fontanilla, G.R. No. L29993, L-30183, 1978) Thus, the municipality cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of governmental functions. Hence, the death of the passenger — tragic and deplorable though it may be imposed on the municipality no duty to pay monetary compensation. (Municipality of San Fernando v. Firme, G.R. No. 52179, 1991 citing Palafox v. Ilocos Norte, G.R. No. L-10659, 1958)

Proprietary Functions (a) With respect to proprietary functions, the settled rule is that a municipal corporation can be held liable to third persons ex contractu or ex delicto. (Torio v. Fontanilla, G.R. No. L-29993, L-30183, 1978) (b) The celebration of a town fiesta by a municipality is not a governmental function. The legal consequence is that the municipality stands on the same footing as an ordinary private corporation with the municipal council acting as its board of directors. It is an elementary principle that a corporation has a personality separate and distinct from its officers, directors, or persons composing it and the latter are not as a rule co-responsible in an action for damages for tort or negligence (culpa acquiliana) committed by the corporation's employees or agents unless there is a showing of bad faith or gross or wanton negligence on their (i.e. the councilors who authorized the town fiesta) part. (Torio v. Fontanilla, G.R. No. L-29993, L-30183, 1978) (c) Leasing of a municipal ferry to the highest bidder for a specified period of time is not a governmental but corporate function. Such a lease, when validly entered into, constitutes a contract with the lessee which the municipality is bound to respect. Thus, municipal council liable for damages for revocation of the fishing without a valid reason. (Mendoza v. De Leon, G.R. No. 9596, 1916) Civil liability of public officials for public acts General Rule: A public officer is not liable for damages which a person may suffer arising from the just performance of his official duties and within the scope of his assigned tasks. Exception: When the governmental acts are done in bad faith, being outside the scope of authority, such public officer is liable for damages in his/her personal capacity. (Vinzons-Chatto v. Fortune Tobacco Corporation, G.R. No. 141309, 2007)

c. Liability on Contracts Doctrine of Implied Municipal Liability A municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has the general power to contract. The doctrine applies to all cases where money or other Page 429 of 479

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property of a party is received under such circ*mstances that the general law, independent of an express contract, implies an obligation to do justice with respect to the same. Thus, the LGU was made to pay fees of private lawyer, who was allowed to continue as counsel that led him to believe that his services were still necessary. (Province of Cebu v. IAC, G.R. No. 72841, 1987) Doctrine of Estoppel Not Applicable to Void Contracts The doctrine of estoppel cannot be applied as against a municipal corporation to validate a contract which it has no power to make, or which it is authorized to make only under prescribed conditions, within prescribed limitations, or in a prescribed mode or manner, although the corporation has accepted the benefits thereof and the other party has fully performed his part of the agreement, or has expanded large sums in preparation for performance. A reason frequently assigned for this rule is that to apply the doctrine of estoppel against a municipality in such case would be to enable it to do indirectly what it cannot do directly. Also, where a contract is violative of public policy, the municipality executing it cannot be estopped to assert the invalidity on this ground; nor can it be estopped to assert the invalidity of a contract which has ceded away, controlled, or embarrassed its legislative or government powers. Thus, the municipality is not estopped from revoking a contract that was extended without the requirement of public bidding and hence, void for being contrary to law and public policy. (San Diego v. Municipality of Naujan, G.R. No. L-9920, 1960) Government Justified to Decline Payment for a Supply Contract in Violation of Laws The government is justified to decline payment of the purchase price of illegally cut lumber delivered by a contractor who won a public bidding for the construction of the Navotas Bridge. All contracts, including government contracts, are subject to the police power of the State. Being an inherent attribute of sovereignty, such power is deemed incorporated into the laws of the land, which are part of all contracts, thereby qualifying the obligations arising therefrom. Thus, it is an implied condition in the subject contract for the procurement of materials needed in the repair and construction of the Navotas Bridge that petitioner as private contractor would comply with pertinent forestry laws and regulations on the cutting and gathering of the lumber she undertook to supply the provincial government. (Guadines v. Sandiganbayan, G.R. No. 164891, 2011)

Performance of an Unenforceable Contract Since there exists an indication by way of allegation that there has been performance of the obligation on the part of respondent, the case is excluded from the coverage of the rule on dismissals based on unenforceability under the statute of frauds, and either party may then enforce its claims against the other. Thus, the SC reversed the dismissal of a claim against an LGU for the purchase of motor vehicles notwithstanding that it’s not in writing given that there has been delivery performance already to the LGU. (Municipality of Hagonoy v. Dumdum, G.R. No. 168289, 2010)

d. Liability for Torts Art. 2180 in relation to Art. 2176 of the Civil Code (a) Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (b) Art. 2180. xxx (Par. 6) The State is responsible in like manner when it acts through a special agent (i.e. for official governmental acts); but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable (i.e. when attended by fault or gross negligence). xxx Thus, LGU could not be liable for the acts of an ambulance driver under Art. 2180 for not being a special agent contemplated by law. And a special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special offfcial) so that in representation of the state and being bound to act as an agent thereof he executed the trust confided to him. This concept does not apply to any executive agent who is an employee of the active administration and who in his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations." (Merritt v. Government of the Philippine Islands, G.R. No. 11154, 1916 citing the Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390)

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Art. 2189 of the Civil Code Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. Thus, an LGU is liable for injuries suffered because of defective roads and manholes. For liability to arise under Article 2189 of the Civil Code, ownership of the roads, streets, bridges, public buildings and other public works is not a controlling factor, it being sufficient that a province, city or municipality has control or supervision thereof. (City of Manila v. Teotico, G.R. No. L-23052, 1968; Municipality of San Juan v. CA, G.R. No. 121920, 2005; Guilatco vs. Dagupan, G.R. No. 61516, 1989) Art. 34 of the Civil Code When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Art. 2208 of the Civil Code In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: XXX (2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; XXX (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim. Thus, a mayor was held personally liable for damages and attorney’s fees for vetoing without reason the sanggunian resolution appropriating the unpaid salaries of a vice mayor, who was forced to litigate in order to claim his lawful salary which was unduly denied him for 3 years and that the mayor acted in gross and evident bad faith in refusing to satisfy the plainly valid, just and demandable claim. (Pilar v. Sangguniang Bayan of Dasol, G.R. No. 63216, 1984) However, a mayor cannot be held personally liable if his actions were done pursuant to an ordinance which, at the time of the collection, was yet to be invalidated. (Demaala v. COA, G.R. No. 199752, 2015)

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When a writ was directed at the mayor not in his personal capacity, but in his capacity as municipal mayor, it is not irregular whether it was served upon him during his earlier term or in his subsequent one. (Vargas v. Cajucom, G.R. No. 171095, 2015)

e. Rules on Enforcing Claims vs. LGU

Money

GENERAL RULE: Government properties are not subject to levy and execution to satisfy a money judgment. However, the SC laid down the following rules and guidelines: (1) It is settled jurisprudence that upon determination of State liability, the prosecution, enforcement or satisfaction thereof must still be pursued in accordance with the rules and procedures laid down in PD 1445 otherwise known as the Government Auditing Code of the Philippines. (Department of Agriculture v. NLRC, 227 CRA 693, 701-02 (1993) citing Republic v. Villasor, 54 SCRA 84 (1973)) (2) All money claims against the Government must first be filed with the Commission on Audit which must act upon it within sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and, in effect, sue the State thereby. (PD 1445 Sec. 4950) NOTE: COA has PRIMARY JURISDICTION over money claims against the State (including LGUs). (Star Special Corporate Security v. COA, G.R. No. 225366, September 1, 2020) (3) However, notwithstanding the rule that government properties are not subject to levy and execution unless otherwise provided for by statute (Republic v. Palacio, 23 SCRA 899 (1968); Commissioner of Public Highways v. San Diego, supra) or municipal ordinance (Municipality of Makati v. Court of Appeals, 190 SCRA 206 (1990)), the Court has, in various instances, distinguished between government funds and properties for public use and those not held for public use. (4) Thus, in Viuda de Tan Toco v. Municipal Council of Iloilo (49 Phil. 52 (1926)), the Court ruled that "(w)here property of a municipal or other public corporation is sought to be subjected to execution to Page 431 of 479

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satisfy judgments recovered against such corporation, the question as to whether such property is leviable or not is to be determined by the usage and purposes for which it is held." (5) The following can be culled from Viuda de Tan Toco v. Municipal Council of Iloilo: (a) Properties held for public uses — and generally everything held for governmental purposes — are not subject to levy and sale under execution against such corporation. The same rule applies to funds in the hands of a public officer and taxes due to a municipal corporation. (b) Where a municipal corporation owns in its proprietary capacity, as distinguished from its public or governmental capacity, property not used or used for a public purpose but for quasi-private purposes, it is the general rule that such property may be seized and sold under execution against the corporation. (c) Property held for public purposes is not subject to execution merely because it is temporarily used for private purposes. If the public use is wholly abandoned, such property becomes subject to execution. (Star Special Watchman & Detective Agency, Inc. v. Puerto Princesa City, G.R. No. 181792, 2014 citing Sc Administrative Circular No. 10-00 dated October 25, 2000) (d) COA has no jurisdiction to reverse and set aside (or even modify) a finally adjudicated claim against an LGU (or the government for that matter) per the Doctrine of Immutability of Judgment. (Star Special Corporate Security v. COA, G.R. No. 225366, 01 September 2020)

Summary Rules on Liability for Damages

(1) If in the exercise of governmental functions, with or without negligence - NOT LIABLE (2) If in the exercise of corporate or proprietary functions: (a) If with authority and within scope of authority, or without bad faith, or without negligence – NOT LIABLE

(b) If no authority or beyond authority, with bad faith, or with gross negligence, with malice – LIABLE

3. SETTLEMENT OF BOUNDARY DISPUTES Situation vs. Where to Settle SITUATION WHERE TO SETTLE Boundary disputes The sangguniang involving 2 or more panlungsod or barangays in the same Sangguniang bayan city or municipality. concerned. Boundary disputes The Sangguniang involving 2 or more panlalawigan municipalities within the concerned same province Boundary disputes Jointly referred for involving municipalities settlement to the or component cities of Sanggunians of the different provinces province concerned Boundary disputes Jointly referred for involving a component settlement to the city or municipality on respective the one hand and a Sanggunians of the highly urbanized city on parties the other, or two (2) or more highly urbanized cities. (Sec. 118, 1991 LGC) NOTE: The following dispute situations are not included in Sec. 118 of the LGC: • Component City vs. Component City within the same province • Municipality vs. Component City within the same province • Municipality in NCR vs. Municipality in NCR (see Taguig v. Makati) • Municipality in NCR vs. HUC in NCR • Municipality in one province vs. Municipality in NCR (see Sta. Lucia Realty v. City of Pasig, G.R. No. 166838, 2011) • Any LGU (Province, Municipality, CC, HUC, ICC) vs. INDEPENDENT Component City Hence, RTC has jurisdiction applying Kananga v. Madrona.

a. Procedure After Failure Amicable Settlement

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shall issue a certification to that effect. (Sec. 118, 1991 LGC) (2) Thereafter, the dispute shall be formally tried by the Sanggunian concerned which shall decide the issue within 60 days from the date of the certification. (Sec. 118, 1991 LGC) (3) Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes. (Sec. 119, 1991 LGC) Doctrines: (1) According to Section 118 of the Local Government Code, boundary disputes between and among municipalities should be referred for settlement to the sangguniang panlalawigan and not with the Regional Trial Court. (Municipality of Sta. Fe v. Municpality of Artao, G.R. No. 140474, 2007) (2) However, there is no law providing for the jurisdiction of any court or quasijudicial body over the settlement of a boundary dispute between a municipality and an independent component city, thus, the Regional Trial Court has jurisdiction to adjudicate it. Under Section 19 (6) of the Judiciary Reorganization Act, the RTC has exclusive original jurisdiction in all cases not within the exclusive jurisdiction of any court or quasi-judicial agency. (Municipality of Kananga v. Madrona, G.R. No. 141375, 2003) (3) The technical description, containing the metes and bounds of the municipality’s territory as stated in an executive order creating the said municipality, is binding. (Municipality of Jimenez v. Baz, Jr., G.R. No. 105746, December 2, 1996)

4. VACANCIES AND SUCCESSION OF LOCAL OFFICIALS When Permanent Vacancy Occurs/Arises A permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently

incapacitated to discharge the functions of his office. (Sec. 44, 1991 LGC)

a. Grounds for Permanent Vacancy (F2VR2-DP) (1) Elective local official Fills a higher vacant office (2) Refuses to assume office (3) Fails to qualify (4) Dies (5) Removed from office (6) Voluntarily resigns (7) Permanently incapacitated to discharge the functions of his office

b. Filling of Vacancy (1) Automatic succession (2) Appointment

c. Permanent Vacancies Permanent Vacancies in the offices of the Governor, Vice Governor, Mayor, Vice Mayor (1) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. (2) If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vicemayor, as the case may be. (3) Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. (Sec. 44(a), 1991 LGC) Permanent Vacancy in the Punong Barangay: If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay. (Sec. 44(b), 1991 LGC) In Case of Tie Between Highest Ranking Sanggunian: A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots. (Sec. 44(c), 1991 LGC)

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How Long Successors Will Serve: The successors as defined herein shall serve only the unexpired terms of their predecessors. (Sec. 44(d), 1991 LGC) Determining Sanggunian Ranking: Ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. (Sec. 44, 1991 LGC) Permanent Vacancies in the Sanggunian (a) Permanent vacancies in the sanggunian where automatic succession (provided in Sec. 44) do not apply shall be filled by appointment in the following manner: (1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities; (2) The governor, in the case of the sangguniang panlungsod of component cities and the sangguniang bayan; (3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned. (b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a ground for administrative action against the official responsible therefore. General Rule: The successor (by appointment) should come from the same political party as

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the Sanggunian member whose position has become vacant. Exception: In case of Sangguniang barangay.

vacancy

the

REMEMBER: The appointee must be a party member nominated with a certificate of membership from the highest party official (e.g. party chairman and not just a provincial chair). (Damasen v. Tumamao, G.R. No. 173165, 2010) NOTE: The "last vacancy" in the Sanggunian refers to that created by the elevation of the member formerly occupying the next higher in rank which in turn also had become vacant by any of the causes already enumerated. The term "last vacancy" is thus used in Sec. 45 (b) to differentiate it from the other vacancy previously created. The term by no means refers to the vacancy in the No. 8 position which occurred with the election of Rolando Lalas to the seventh position in the Sanggunian. Such construction will result in absurdity. (Navarro v. CA, G.R. No. 141307, 2001) (c) In case or permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy. (d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned. (Sec. 45, 1991 LGC) Vacancy and Successor VACANCY SUCCESSOR Governor, Mayor Vice-Governor, ViceMayor Governor, Vicegovernor, Mayor or Vice-mayor Highest ranking Sanggunian member (who was supposed to fill the vacant position of governor, etc.) In the office of the Punong Barangay

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Temporary Incapacity When the governor, city or municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vicegovernor, city or municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days. Said temporary incapacity shall terminate upon submission to the appropriate sanggunian of a written declaration by the local chief executive concerned that he has reported back to office. In cases where the temporary incapacity is due to legal causes, the local chief executive concerned shall also submit necessary documents showing that said legal causes no longer exist. (Sec. 46(a)(b), 1991 LGC) Non-exclusive grounds for temporary vacancy (1) Leave of absence (2) Travel abroad (3) Suspension from office General Rule: If the position of governor, mayor, or punong barangay becomes temporarily vacant, the vice- governor, vice-mayor or highest-ranking Sanggunian member will automatically exercise the powers and perform the duties and functions of the local chief executive concerned. Exception: He cannot exercise the power to appoint, suspend or dismiss employees. Exception to the Exception: If the period of temporary incapacity exceeds 30 working days. (Sec. 46, 1991 LGC) Termination of Temporary Incapacity (1) Upon submission to the appropriate Sanggunian of a written declaration by the local chief that he has reported back to office. (2) If the temporary incapacity was due to legal reason, the local chief executive should also submit necessary documents showing

that the legal causes no longer exist. (Sec. 46, 1991 LGC) Appointment of Officer-in-Charge (1) When the incumbent local chief executive is traveling within the country but outside his territorial jurisdiction for a period not exceeding three (3) consecutive days, he may designate in writing the officer-incharge of the said office. Such authorization shall specify the powers and functions that the local official concerned shall exercise in the absence of the local chief executive except the power to appoint, suspend, or dismiss employees. (Sec. 46(c), 1991 LGC) (2) Except as provided above, the local chief executive shall in no case authorize any local official to assume the powers, duties, and functions of the office, other than the vice-governor, the city or municipal vicemayor, or the highest ranking sangguniang barangay member, as the case may be. (Sec. 46(e), 1991 LGC) THUS: 1) For Absence not exceeding 3 days – local chief executive can name ANY official; 2) For Absence exceeding 3 days – the local chief executive is limited to designating the vice-governor, the city or municipal vice-mayor, or the highest ranking sangguniang barangay member, as the case may be. In the event, however, that the local chief executive concerned fails or refuses to issue such authorization, the vice-governor, the city or municipal vice-mayor, or the highest ranking sangguniang barangay member, as the case may be, shall have the right to assume the powers, duties, and functions of the said office on the fourth (4th) day of absence of the said local chief executive, subject to the limitations provided in subsection (c) hereof. (Sec. 46(d), 1991 LGC) Permanent Vacancies in the Sangguniang Kabataan (a) In case a Sangguniang Kabataan chairperson refuses to assume office, fails to qualify, voluntarily resigns, dies, is permanently incapacitated, is removed from office, the Sangguniang Kabataan member who obtained the highest number of votes in the election immediately preceding shall assume the office of the chairperson for the unexpired portion of his or her term. In case said member refuses to assume the position or fails to qualify, the Page 435 of 479

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Sangguniang Kabataan member obtaining the next highest number of votes shall assume the position of the chairperson for the unexpired portion of the term. (b) After the vacancy shall have been filled, the Sangguniang Kabataan chairperson shall, within thirty (30) days, call for a special Katipunan ng Kabataan assembly to elect a Sangguniang Kabataan member to complete the membership of said sanggunian: Provided, That, such special assembly is coordinated with the Office of the Local Government Operations Officer and the COMELEC of the municipality or city where the concerned barangay belongs Such Sangguniang Kabataan member shall hold office for the unexpired portion of the term of the vacant seat. For this purpose, any citizen of the Philippines residing in the said barangay for at least six (6) months who attains the age of fifteen (15) years old at the time of the special election and who registers as member of the Katipunan ng Kabataan before the Sangguniang Kabataan secretary shall be entitled to vote in the said special election. (c) All other vacancies in the office of the Sangguniang Kabataan shall be filled in accordance with the immediately preceding provision. (d) In case of suspension of the Sangguniang Kabataan chairperson, the successor, as determined in subsection (a) of this section, shall assume the position during the period of such suspension. (Sec. 19, RA 10742) NOTE: Republic Act No. 10742, otherwise known as the “Sanggunian Kabataan Reform Act of 2015,” has repealed and/or modified accordingly Sections 329, 423-439 of the RA 7160, LGC.

5. RECALL Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a fundamental right of the people in a representative democracy. (Garcia v. COMELEC, G.R. No. 111511, 1993)

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a. Who May Exercise The power of recall for loss of confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs. (Sec. 69, 1991 LGC)

b. How Recall is Initiated The Recall of any elective provincial, city, municipal or barangay official shall be commenced by a petition of a registered voter in the local government unit concerned and supported by the registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected subject to the following percentage requirements: (1) At least twenty-five percent (25%) in the case of local government units with a voting population of not more than twenty thousand (20,000); (2) At least twenty percent (20%) in the case of local government units with a voting population of at least twenty thousand (20,000) but not more than seventy-five thousand (75,000): Provided, That in no case shall the required petitioners be less than five thousand (5,000); (3) At least fifteen percent (15%) in the case of local government units with a voting population of at least seventy-five thousand (75,000) but not more than three hundred thousand (300,000): Provided, however, That in no case shall the required number of petitioners be less than fifteen thousand (15,000); and (4) At least ten percent (10%) in the case of local government units with a voting population of over three hundred thousand (300,000): Provided, however, That in no case shall the required petitioners be less than forty-five thousand (45,000). (Sec. 70(a), LGC as amended by RA 9244) NOTE: Under RA 9244, there is no more Recall via the Preparatory Recall Assembly.

c. Recall Process/Procedure The process of recall shall be effected in accordance with the following procedure: (1) WRITTEN PETITION. A written petition for recall duly signed by the representatives of the petitioners before the election registrar or his representative, shall be filed with the Page 436 of 479

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Comelec through its office in the local government unit concerned. (2) CONTENTS OF THE PETITION. The petition to recall shall contain the following: (a) The names and addresses of the petitioners written in legible form and their signatures; (b) The barangay, city or municipality, local legislative district and the province to which the petitioners belong; (c) The name of the official sought to be recalled; and (d) A brief narration of the reasons and justifications therefor. (3) COMELEC CERTIFICATION. The Comelec shall, within fifteen (15) days from the filing of the petition, certify to the sufficiency of the required number of signatures. Failure to obtain the required number of signatures automatically nullifies the petition; (4) NOTICE AND PUBLICATION. If the petition is found to be sufficient in form, the Comelec or its duly authorized representative shall, within three (3) days from the issuance of the certification, provide the official sought to be recalled a copy of the petition, cause its publication in a national newspaper of general circulation and a newspaper of general circulation in the locality, once a week for three (3) consecutive weeks at the expense of the petitioners and at the same time post copies thereof in public and conspicuous places for a period of not less than ten (10) days nor more than twenty (20) days, for the purpose of allowing interested parties to examine and verify the validity of the petition and the authenticity of the signatures contained therein. (5) VERIFICATION AND AUTHENTICATION. The Comelec or its duly authorized representatives shall, upon issuance of certification, proceed independently with the verification and authentication of the signatures of the petitioners and registered voters contained therein. Representatives of the petitioners and the official sought to be recalled shall be duly notified and shall have the right to participate therein as mere observers. The filing of any challenge or protest shall be allowed within the period provided in the immediately preceding paragraph and shall be ruled upon with finality within fifteen (15) days from the date of filing of such protest or challenge;

(6) CANDIDATES. Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be recalled.” (Sec. 70(b), LGC as amended by RA 9244) The authentication of signatures in a recall petition is done during the determination of the names, signatures and thumbmarks of petitioners, not during the determination of the sufficiency of the form and substance of the petition. (Sy-Alvarado v. Comelec, G.R. No. 216457, 2015)

d. Conduct of Recall Election (1) Upon the filing of a valid petition for recall with the appropriate local office of the Comelec, the Comelec or its duly authorized representative shall set the date of the election or recall, which shall not be later than thirty (30) days upon the completion of the procedure outlined in the preceding article, in the case of the barangay, city or municipal officials, and forty-five (45) days in the case of provincial officials. (2) The officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon. (Sec. 71, LGC as amended by RA 9244) (3) The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. (Sec. 73, 1991 LGC) Effectivity of Recall (1) The recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. (2) Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office. (Sec. 72, 1991 LGC)

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Limitations on Recall (1) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (2) No recall shall take place within one (1) year from the date of the official’s assumption to office or one (1) year immediately preceding a regular local election. (Sec. 74, 1991 LGC) Funding. All expenses incident to recall elections shall be borne by the COMELEC. For this purpose, there shall be included in the annual General Appropriations Act a contingency fund at the disposal of the COMELEC for the conduct of recall elections. (Sec. 75, 1991LGC) NOTE: Hence, COMELEC cannot suspend recall because of supposed lack of funding. (Goh v. Bayron, G.R. No. 212584, 2014)

6. TERM LIMITS a. Constitutional Rule The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (Sec. 8, Art. X, 1987 Constitution; also Sec. 43(b), RA 7160) Term of office: 3 years. General Rule: No local elective official shall serve for more than 3 consecutive terms in the same position. Exception: The term of barangay officials and members of the Sanggunian Kabataan shall be for 3 years. (RA 9146) For the 3-term rule to apply, the local official must have: (1) Fully served the term (2) Elected through a regular election

b. Not an Interruption to the Full Term (3-Term Limit Applies – Hence, Barred):

won as municipal councilor and served the full term. Considered as voluntary renunciation. (Bolos v. COMELEC, G.R. No. 184082, 2009) (2) CIRCUMVENTION. After serving 3 terms as Punong Barangay, got elected as barangay kagawad with sister elected as Punong Barangay, who resigned the following day after oath of office to allow succession. Considered as a conspiracy and hence, a circumvention of the 3-term limit. (Aguilar v. Benlot, G.R. No. 232806, 2019) (3) CONVERSION. Conversion of a municipality to a city with no break in the service as a local chief executive. (Latasa v. COMELEC, GR No. 154829, 2003; Halili v. COMELEC, G.R. No. 231643, 2019) (4) REAPPORTIONMENT OF DISTRICT. Served for 2 terms (2004, 2007) as Provincial Board Member (BM) in the Cam. Sur 2nd dist. Cam. Sur was reapportioned by RA9716. In 2010 and 2013 he ran and won as BM in the 3rd dist (which is essentially the same as the old 2nd dist). (Naval v. COMELEC, G.R. No. 207851, 2014) (5) MERGER. Municipalities were merged and converted into a city, but the Punong Barangay from the former municipality is the same as that in the city as the new political unit with the same territory and inhabitants (hence, same group of voters). (Laceda v. Limena, G.R. No. 182867, 2008) (6) PREVENTIVE SUSPENSION. Preventive suspension is not an interruption. Just a temporary inability; not unseated and continued to hold office; just temporarily barred to exercise functions. (Aldovino v. COMELEC, G.R. No. 184836, 2009) (7) ELECTION PROTEST BUT SERVED 3 FULL TERMS. Election protest, but able to serve 3 full terms, including the 2nd term (fully served) where the proclamation was voided. (Ong v. COMELEC, G.R. N0. 163295, 2006; Rivera v. COMELEC, G.R. No. 167591, 2007)

(1) RUNNING, WINNING, AND SERVING A DIFFERENT ELECTIVE POSITION IS VOLUNTARY RENUNCIATION. Punong barangay, while serving 3rd term, ran and Page 438 of 479 BACK TO TOC

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c. Not an Interruption to the Full Term (1) SUCCESSION. Assumption by succession is by operation of law. To count as a term, one must have been elected and fully served. Law allows the severance to effectuate succession. (Borja v. COMELEC, G.R. No. 133495, 1998; Montebon v. COMELEC, G.R. No. 180444, 2008) (a) Vice Mayor to Mayor on 3rd term as Vice Mayor then served 2 more terms as mayor; not barred to run for another term as mayor. (Borja v. COMELEC, G.R. No. 133495, 1998) (b) Councilor served 3 consecutive terms, but during 2nd term succeeded as Vice Mayor; not barred to run again as councilor. (Montebon v. COMELEC, G.R. No. 180444, 2008) (2) RECALL ELECTION. Previously served for 3 full terms as mayor, then participated in a recall election; not barred. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. (Socrates v. COMELEC, GR No. 154512, 2002) Previously served for 2 full terms as mayor (1992-1998), ran for a 3rd term (1998-2001) but lost, then subsequently participated in a recall election (2000), which he won served the unexpired term; not barred to run again for another term – not elected for 3 consecutive terms, continuity as mayor was disrupted with the defeat, and was a private citizen for 2 years prior to the recall election. (Adormeo v. COMELEC, G.R. No. 147927, 2002)

(4) ELECTION PROTEST. (a) Unseated during 3rd term as mayor because of an election protest; not barred as not deemed to have been elected for that term – merely assumed office as a presumptive winner. (Lonzanida v. COMELEC, G.R. No. 135150, 1999) (b) Served as mayor in 2001, 2004, and 2007, but the 2004 (2nd term) was by virtue of an election protest and served only the remainder of the 2nd term; not barred to run in 2010. (Abundo v. COMELEC, G.R. No. 201716, 2013) (c) Unseated for running and winning a 4th term (NOTE: 4th term was invalidated by the SC in Rivera v. COMELEC), then relinquished office; not barred to run in the subsequent election. (Dizon v. COMELEC, G.R. No. 182088, 2009) ————- end of topic ————

(3) DISMISSAL AS PENALTY. Dismissals (as penalties) were involuntary interruptions; not considered to have fully served a 3rd successive term of office. (Tallado v. COMELEC, G.R. No. 246679, 2019) Page 439 of 479 BACK TO TOC

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PRELIMINARIES Traditional Definition of Public International Law International law is a body of rules and principles of action which are binding upon civilized states in their relations to one another (Bernas, Public International Law, 2009). Modern Definition of Public International Law International law as the law which deals with the conduct of states and of international organizations and with their relations inter se, as well as some of their reasons with persons, whether natural or juridical. (Restatement (Third) of Foreign Relations Law of the United States).

UN General Assembly resolutions and declarations like the Universal Declaration of Human Rights, codes of conduct, guidelines, and documents resulting from international conferences are examples of soft laws. International Comity (comitas gentium) Refers to the rules or politeness, convenience, and goodwill observed by States in their mutual intercourse without being legally bound by them.

Public International Law vs Private International Law PUBLIC PRIVATE Governs the relation of Deals with private sovereign states and individuals. other entities with an international personality. They are generally It is really municipal or accepted principles of national in character public international because each State law, giving the subject has its own conflict an international nature. rules. Sanctions may be in Relief prayed for may the form of peaceful be obtained from remedies (i.e municipal tribunals. diplomatic, negotiation, mediation, conciliation, arbitration, diplomatic efforts, settlement by the ICJ) Hard Law This refers to binding international legal norms or those which have coercive character. (SARMIENTO) Vienna Conventions on Diplomatic and Consular Relations and the Vienna Convention on the Law of Treaties are some of the examples of hard laws. Soft Law It is used to describe international instruments that their makers recognize are not treaties, but have as their purpose the promotion of ‘norms’ which are believed to be good and therefore should have general or universal application.

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I. SOURCES OF OBLIGATIONS TOPIC OUTLINE UNDER THE SYLLABUS I. SOURCES OF OBLIGATIONS A. TREATIES (1) Concept of Jus Cogens (Peremptory Norms of International Law) (2) Reservations, Withdrawal, Termination, and Rebus Sic Stantibus B. CUSTOMARY INTERNATIONAL LAW (1) Elements (2) Obligations Erga Omnes C. GENERAL PRINCIPLES OF LAW D. APPLICATION OF INTERNATIONAL DOMESTIC COURTS (1) Monism (2) Dualism (3) Inverted Monism (4) Harmonization

A. TREATIES Treaty, Definition A treaty is an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (VCLT, ART 2(1)(a)). Under the VCLT, the term “treaty” includes all agreements between states, regardless of how they are called. Thus, for purposes of international law: treaties, executive agreements, exchanges of notes, etc., are all treaties. Under the E.O. 459, a treaty is defined as international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts. (E.O. 459, Section 2) Pacta Sunt Servanda Under the principle of pacta sunt servanda, a state party to a treaty is bound to comply with the obligations it assumed under such treaty in good faith (VCLT, art. 26). Requisites of a Treaty SWI 1. Must be concluded between States 2. In Writing 3. Governed by International Law Basis of Treaty Obligation Treaty obligation is based on consent. No state may be bound by a treaty obligation unless it has so consented (VCLT, art. 34). Elements of a Valid Treaty (1) Treaty making capacity, which is possessed by all States as an attribute of sovereignty. International organizations also possess treaty- making capacity, although limited by the organization’s purpose, as revised in its charter; (2) Competence of the representative/organ making the treaty, which may be the head of state, which generally has full powers, or other persons called plenipotentiaries, which must produce an instrument showing authority to sign a treaty binding their government; (3) Consent freely given by the parties. If consent was given erroneously, or was Page 442 of 479

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induced by fraud, the treaty shall be voidable; (4) Object and subject matter, which must be lawful; (5) Ratification in accordance with the constitutional process Treaty-Making Process VCLT PROCESS NEGOTIATION The state representative discusses the terms and provisions of the treaty

ADOPTION When the form and content have been settled by the negotiating states, the treaty is adopted. This is only preparatory to (1) the authentication of the text of the treaty and (2) the signing thereof. (VCLT, ART 9) A definitive text of the treaty is established as the correct and authentic one

In the Philippines, the negotiation of treaties and their ratification are executive functions, subject to concurrence of the Senate. Treaty vs Executive Agreements EXECUTIVE TREATY AGREEMENT SUBJECT MATTER 1. Political Issues 1. Arrangements of 2. Changes in Temporary National Policy Nature 3. International 2. Implementation Arrangements of of Treaties and a Permanent Statutes Character 3. Transitory Effectivity 4. Adjustments of details carrying out established national policies and tradition RATIFICATION Must be ratified by 2/3 Ratification by the of the senate to Senate not necessary become valid and effective. (1987 Constitution, ART 7, S21)

EXPRESSION OF CONSENT The state parties express their consent to be bound by the terms of the treaty. The modes of such expression are provided in the VCLT.

Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned, as long as the negotiating functionaries have remained within their powers. (Bayan Muna v. Romulo, G.R. No. 159618, 2011).

REGISTRATION The treaty is then registered with the Secretariat of the United Nations. Otherwise, the treaty may not be invoked before any UN organ, including the ICJ. (UN Charter, ART 102(2))

There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties’ intent and desire to craft an international agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty oral executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda principle. (Bayan Muna v. Romulo, G.R. No. 159618, Feb 1, 2011)

DOMESTIC PROCESS RATIFICATION The treaty is ratified by the President. This act explicitly conveys the country’s consent to be bound by treaty.

CONCURRENCE At least 2/3 of the members of the Senate must concur with the ratification of the President

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Grounds for Invalidity of Treaty FED-CJ (1) Fraud (2) Error of Fact (3) Duress (4) Corruption (5) Jus Cogens Page 443 of 479

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Invalid Treaties (1) If the treaty violates a jus cogens norm of international law; (2) If the conclusion of a treaty is procured by threat or use of force; (3) Error of fact, provided that such fact formed an essential basis of a state’s consent to be bound; (4) If the representative of a state was corrupted to consent by another negotiating state; (5) If consent was obtained through fraudulent conduct of another negotiating state; (6) If the representative consented in violation of specific restrictions on authority provided the restriction was notified to the other negotiating states prior to the representative expressing such consent; (7) If consent was given in violation of provisions of internal law regarding competence to conclude treaties that is manifest and of fundamental importance. (VCLT)

1. CONCEPT OF JUS COGENS (PEREMPTORY NORMS OF INTERNATIONAL LAW) In international law, the term "jus cogens" (literal meaning: compelling law) refers to norms accepted and recognized by the international community of States as a whole, that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority (Vinuya v. Romulo, G.R. 162230, April 28, 2010). “The term ‘jus cogens’ means the ‘compelling law.’” Corollary, “a jus cogens norm holds the highest hierarchical position among all other customary norms and principles.” As a result, jus cogens norms are deemed “peremptory and non-derogable.” (Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011).

A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. (Vienna Convention on the Law of Treaties, art. 53)

Note, however, that the definition quoted here (referring to Article 53 of the Vienna Convention on the Law of Treaties) is based on the legal effect of the rule and not on its intrinsic nature. It seems to say that the rule is jus cogens because no derogation from it is permitted. However, what jus cogens really means is that no derogation is allowed because it is jus cogens. It is the intrinsic nature of the rule that disallows derogation. (Bernas, Public International Law, 2009) Elements of Jus Cogens (Vienna Convention on the Law of Treaties, ART 53) ANDS (1) A norm Accepted and recognized by the international community of states as a whole (2) No Derogation is permitted (3) It can only be modified by a Subsequent norm having the same character Status of a later treaty which is contrary to jus cogens Treaties that conflict with a peremptory norm of general international law or jus cogens is considered VOID (Vienna Convention on the Law of Treaties, art. 53). Emergence of a subsequent peremptory norm of general international law renders any existing treaty that conflicts with it void. (Vienna Convention on the Law of Treaties, art. 64). [Jus cogens > Treaty]

2. RESERVATIONS, WITHDRAWAL, TERMINATION, AND REBUS SIC STANTIBUS Reservations General rule: A reservation is a unilateral statement made by a state upon entering a treaty and operates to exclude or modify the legal effect of certain provision/s of the treaty in their application to the reserving state. [VCLT, art. 19] Exceptions: A reservation shall not operate to modify or exclude the provisions of a treaty: (1) Where the treaty expressly prohibits reservations in general; (2) Where the treaty expressly prohibits that specific reservation being made; or (3) Where the reservation is incompatible with the object and purpose of the treaty. (Reservation to the Genocide Conventions Advisory Opinion, ICJ, 1951) Withdrawal It is the act of a state to voluntarily withdraw from an international agreement. Page 444 of 479

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In Pangilinan v Cayetano, the Court adopted the following guidelines for evaluating cases concerning the president’s withdrawal from international agreements: (a) President enjoys some leeway in withdrawing from agreements which he or she determines to be contrary to the Constitution or statutes. (b) President cannot unilaterally withdraw from agreements which were entered into pursuant to congressional imprimatur (c) President cannot unilaterally withdraw from international agreements where the Senate concurred and expressly declared that any withdrawal must also be made with its concurrence. The withdrawal made by Duterte from ICC should not have been allowed because unilateral withdrawals are not allowed if the agreement was concurred by the senate. However, the court ruled that the issue on the withdrawal’s validity is already moot and academic because ICC already accepted it. (Pangilinan v Cayetano. G.R. No. 238875, 2021). Termination The grounds for termination of a treaty are: (1) Expiration of the term, or withdrawal of a party in accordance with the treaty; (2) Extinction of a party to the treaty, when the treaty rights and obligations would not devolve upon the successor- state; (3) Mutual agreement of parties; (4) Denunciation or desistance by a party; (5) Supervening impossibility of performance; (6) Conclusion of a subsequent inconsistent treaty; (7) Loss of subject matter (8) Material breach or violation of treaty (9) Fundamental change in circ*mstance (similar to the customary norm of rebus sic stantibus) such that the foundation upon which the consent of a state to be bound initially rested has disappeared. (VCLT, art. 62) The requisites are: (a) The change is so substantial that the foundation of the treaty has altogether disappeared; (b) The change was unforeseen or unforeseeable at the time of the perfection of the treaty; (c) The change was not caused by the party invoking the doctrine

(d) The doctrine was invoked within a reasonable time; (e) The duration of the treaty is indefinite; (f) The doctrine cannot operate retroactively (it must not adversely affect provisions which have already been complied with prior to the vital change); (10) Outbreak of war between the parties, unless the treaty relates to the conduct of war; (11) Severance of diplomatic relations, if such relationship is indispensable for the treaty’s application; (12) Jus cogens application, or the emergence of a new peremptory norm of general international law which renders void any existing, conflicting treaty. Rebus Sic Stantibus General Rule: A fundamental change of circ*mstances is not a ground for a treaty to be suspended or terminated. Exceptions: (1) The circ*mstance is the essential basis of consent. (2) The obligation is transformed radically that it becomes burdensome or unreasonable. Exceptions to the Exceptions:

(1) If the treaty establishes a boundary; (2) If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. (VCLT, art. 62) Note: Rebus Sic Stantibus is an exception to the rule of Pacta Sunt Servanda

B. CUSTOMARY INTERNATIONAL LAW Custom General and consistent practice of States followed by them from a sense of legal obligation. (Restatement (Third) of Foreign Relations Law of the United States) Not only must acts amount to a settled practice, but they must also be such or be 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. (International Court of Justice in the Page 445 of 479

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North Sea Continental Shelf Cases, cited in Mijares v. Ranada, G.R. No. 139325, April12, 2005) Unlike treaties, customary norms are legally binding upon all States regardless of whether they consent, subject to the persistent objector rule. Note that the theory of tabula rasa does not erase obligations under Customary International Law. No particular length of time is required for the formation of customary norms so long as the existence of the two elements of custom are manifest (North Sea Continental Shelf Cases (ICJ) February 20, 1969). The number of parties, the explicit acceptance of rules of law, and, in some cases, the declaratory nature of the provisions produces a strong lawcreating effect at least as great as the general practice considered sufficient to support a customary rule (BROWNLIE). Scope of Custom A custom may be: (1) General – binding upon all or most states. (2) Particular – binding only between two or among a few states. Regional Custom A practice among states within a particular area for the world which can be sufficiently well established and accepted as law that is binding among the states of that region but not elsewhere. Instant Custom (Diritto Spontaneo) Customary law may emerge even within a relatively short period of time. If within that period, State practice has been uniform and extensive. It comes out as a spontaneous activity of a great number of states supporting a specific line of action. (Bernas, Public International Law, 2009). Special or Local Custom A long continued practice between two states, accepted by them as regulating their relations that form the basis of mutual rights and obligations. (Portugal v. India (ICJ), April 12, 1960).

1. ELEMENTS a. State Practice A consistent and uniform external conduct of States. Generally, both what States say and what they do are considered state practice. DUG 1. Duration of Practice 2. Uniformity and Consistency of Practice

Generality (majority of specially affected states) (Bernas, Public International Law, 2009)

Elements of State Practice Practice must be: (1) Consistent (2) General Consistency requires substantial uniformity and not necessarily complete uniformity in practice (Asylum Case (ICJ), November 20, 1950). Generality likewise does not require universality. Evidence of State Practice The following acts may evidence state practice: (1) Diplomatic Correspondence (2) Policy Statements (3) Press Releases (4) Opinions of official legal advisers (5) Official manuals on legal decisions (executive decisions and practices, and government comments on drafts by the ILC); (6) International and National Judicial Decisions; (7) Recitals in treaties and international instruments; (8) Practice of International Organs (HARRIS) UN General Assembly resolutions are generally just recommendations. However, such resolutionsmay be an evidence of state practice that is relevant in the development of custom. [See Nicaragua Case (ICJ, June 27, 1986)].

b. Opinio Juris Give Necessitatis As an element in the formation of customary norm in international law, it is required that States, in their conduct amounting to general practice, must act out a sense of legal duty and not only by the motivation of courtesy, convenience or tradition. Element of Opinio Juris Give Necessitaties This refers to the belief on the part of states that a particular practice is required by law, and not because of courtesy or political expedience (North Sea Continental Shelf Cases (ICJ) February 20, 1969). It is the existence of opinion juris that distinguishes binding custom from mere usage, from comity, and from courtesy or protocol.

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2. Obligations Erga Omnes The term erga omnes (literal meaning: in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole (Romulo v. Vinuya, G.R. 162230, 2010). By their very nature, these are the obligations of a State towards the international community as a whole. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law others are conferred by international instruments of a universal or quasi- universal character. (Vinuya v. Romulo, G.R. 162230, April 28, 2010). Types of Obligations Erga Omnes Authorities classify erga omnes obligations into either: (1) Erga Omnes Omnium, or (2) Erga Omnes Partes [see IDI, Resolution on Obligations erga omnes in international law (2005), ART 1]. Erga Omnes Omnium v Erga Omnes Partes ERGA OMNES ERGA OMNES OMNIUM PARTES Basis General International Multilateral Treaty Law To whom owned The international All the other States community, in any parties to the same given case. treaty in any given case. Interest The common values of The common values of the international States parties and community and their concern for concern for compliance. compliance. Difference between jus cogens and erga omnes Jus cogens pertains to the non-derogability of a norm and the validity of rules and acts that conflict with it. Erga omnes pertains to the obligations owed by states towards the international community.

One is not the subset of the other. Customary Norms Identified by the Supreme Court of the Philippines (1) Rules and principles of land warfare and of humanitarian law under the Hague Convention and the Geneva Convention (Kuroda v. Jalandoni, G.R. No. L-2662, March 26, 1949) (2) Pacta sunt servanda (La Chemise Lacoste v. Fernandez, G.R. Nos. L- 63796- 97, May 2,1984) (3) Human rights as defined under the Universal Declaration of Human Rights (Reyes v. Bagatsing, G.R. No. L-65366, November 9, 1983) (4) The Principle of the Sovereign Equality of States (Sanders v. Veridiano, G.R. No.L46930, June 10, 1988) (5) The principle in diplomatic law that the receiving state has the special duty to protect the premises of the diplomatic mission of the sending state (Reyes v.Bagatsing, G.R. No. L-65366, November 9,1983) (6) The right of a citizen to return to his own country (Marcos v. Manglapus, G.R. No.88211, September 15, 1989) (7) The principle that “a foreign army allowed to march through friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place” (Raquiza v. Bradford, G.R. No. L-44, September 13,1945) (8) The principle that judicial acts, not of a political complexion, of a de facto government established by the military occupant in an enemy territory, are valid under international law. It is legal truism in political and international law that all acts and proceedings of the legislative, executive and judicial departments of ade factogovernment are good and valid (Montebon v.Director of Prisons, G.R. No. L-1352, April30, 1947) (9) The principle that private property seized and used by the enemy in times of war under circ*mstances not constituting valid requisition does not become enemy property and its private ownership is retained, the enemy having acquired onlyits temporary use (Noceda v. Escobar, G.R. No. L-2939, August 29, 1950)

(10) The principle that a State has the right to protect itself and its revenues, a right not Page 447 of 479

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limited to its own territory but extending to the high seas (Asaali v. Commissioner, G.R. No. L-24170, December 16, 1968).

C. GENERAL PRINCIPLES OF LAW Definition Principles based on natural justice common to most national systems of law. These refer to those general principles in municipal law (particularly those of private law) that may be appropriated to apply to the relations of states [OPPENHEIM].(e.g., good faith, estoppel, exhaustion of local remedies, unjust enrichment). This is also not an independent source of law/ obligation. (1) The ban on enforced disappearance is a generally accepted principle of international law which is considered part of the law of the land (Razon v. Tagitis, G.R. No. 182498, December 3, 2009).Note, however, that RA 10353 (An Act Defining and Penalizing Enforced or Involuntary Disappearance) was passed on December 21, 2012. (2) The Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity) has not yet evinced an obligatory norm in the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. (Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582, April 8, 2010). (3) Rep. Act No. 9851 defines and provides for the penalties of crimes against humanity, serious violations of IHL, genocide, and other crimes against humanity. This law provides for the non- prescription of the prosecution of and execution of sentences imposed with regard to the crimes defined in the Act. It also provides for the jurisdiction of the Regional Trial Court over the crimes defined in the Act. These crimes are, therefore, separate from or independent from the crime of rebellion even if they occur on the occasion of or argued to be connected with the armed uprisings.(Ocampo v. Abando, Leonen’s

Concurring Opinion, G.R. No. 176830, 2014). Principles that are considered as general principles of international law (1) Roman Principles (2) Principles such as estoppel, res judicata, res inter alios acta, and prescription; e.g. With respect to estoppel, when Thailand did not object to, and has in fact benefited from, the Treaty of 1904 for 50 years, it is deemed to have accepted said treaty. It is thereby precluded from questioning Annex I thereof, which showed that the Temple of Preah Vihear was within Cambodian territory (Temple of Preah Vihear Case (ICJ, June 15, 1962)). (3) Other substantive principles, such as the duty to make reparations (Chorzow Factory Case, PCIJ, September 13, 1928), principle of reciprocity, pacta sunt servanda, separate corporate personality (see Barcelona Traction Case, ICJ, February 5, 1970). (4) Procedural rules, such as rules governing the use of circ*mstantial and hearsay evidence are likewise so considered. e.g. Press reports can be used to corroborate the existence of a fact. When they demonstrate matters of public knowledge which have received extensive press coverage, they can be used to prove a fact to the satisfaction of the court (Nicaragua Case, ICJ, June 27, 1986). (5) Circ*mstantial evidence is admitted as indirect evidence in all systems of law and its use is recognized by international decisions. Such circ*mstantial evidence, however, must consist of a series of facts or events that lead to a single conclusion (Corfu Channel Case, ICJ, April 9, 1949). (6) Jurisdictional principles, such as the power of a tribunal to determine the extent of its own jurisdiction (competence de la competence).

D. APPLICATION OF INTERNATIONAL DOMESTIC COURTS 1. MONISM There is no substantial distinction between international law and municipal law. Under this theory, international law and domestic law belong to only one system of law. Page 448 of 479

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Theory 1: Municipal Law subsumes and is superior to international law. Theory 2: International law is superior to domestic law.

2. DUALISM International law and national law are essentially different from each other as to source (i.e. municipal law is a product of local custom or legislation; whereas sources of international law are treaties and custom grown among states.); as regards the relations they regulate (i.e. municipal law regulated relations between individual persons under the state; whereas international law regulates relations between states); and lastly, as to substance (i.e. municipal law is a law of the sovereign over individuals whereas international law is a law between sovereign states). (Bernas, Public International Law, 2009). For the dualists, when international law and municipal law conflict, municipal law must prevail. (Bernas, Public International Law, 2009). Under dualism, no conflict can ever arise between international and municipal law, because the two systems are mutually exclusive. If International law is applied within a state, it is only because it has been expressly incorporated by municipal law. The Philippines is a dualist state.

4. INVERTED MONISM Inverse monism is a species of monism in the reverse, asserting that municipal law has primacy over international law in both international and municipal decisions.

5. HARMONIZATION Harmonization radically rejects the supposition of conflict between international law and municipal law altogether. Questions the overall soundness of monist and dualist positions by arguing that the attempt to resolve conflict by asserting the automatic superiority of one legal order over the other does not reflect the reality.

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II. INTERNATIONAL LEGAL PERSON TOPIC OUTLINE UNDER THE SYLLABUS A. STATES (1) Elements (2) Recognition of States and Governments B. NON-STATE ENTITIES C. INTERNATIONAL ORGANIZATIONS D. STATUS OF INDIVIDUALS AND CORPORATIONS

A. STATES States, as subject of international law, have international personality which means that it has the right to have its claims respected internationally. A state has absolute personality. Rights of the state (1) Jurisdiction (2) Equality (3) Individual or Collective self-defense (4) Independence (5) Legation Duties of states (1) To carry out in good faith all its obligations; (2) To refrain from recognizing any territorial acquisition by another State which resorts to war or to the use of threat or force; (3) To refrain from giving assistance to any State which resorts to war or threat or use of force, or against which the UN is taking preventive or enforcement actions (4) To conduct its relations with other States in accordance with International Law (5) To ensure that conditions prevailing in its territory do not menace international peace and order (6) To refrain from resorting to war and the threat or use of force (7) To treat all persons under its jurisdiction with respect for human rights and fundamental rights, without discrimination (8) To refrain from intervening (9) To settle its disputes with other States by peaceful means

1. ELEMENTS The elements of a state are the following: GSPoT (1) Government • the physical manifestation of a state. Government must be organized, exercising control over and capable of maintaining law and order within its territory. • A State cannot come into existence or exist for long, unless it has a government. The existence of a government implies the capacity to autonomously establish and maintain a legal order. (AKEHURST) Page 450 of 479 BACK TO TOC

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A state does not cease to exist when it is temporarily deprived of an effective government as a result of civil war or similar upheavals i. The long period of de facto partition of Lebanon did not hinder its continued legal status as a State. ii. the lack of a government in Somalia in the 1990s did not lead to the abolition of the international legal personality of Somalia or make its territory terra nullius. iii. Even when all of its territory is occupied by the enemy in wartime, the State continues to exist. (AKEHURST)

(2) Sovereignty • the capacity to enter into relations with other States. (3) Permanent Population • The population does not have to be hom*ogeneous racially, ethnically, tribally, religiously, linguistically, or otherwise. But it must be a settled population, although the presence of certain nomadic inhabitants does not matter. • Permanent population refers to the State permanently having population, not necessarily to that population consisting of those who reside permanently within that State’s territory. • What is required is the existence of a permanent population of individuals who owe allegiance and obedience to that State, i.e. nationals as well as non-national residents who are subject to that State’s laws. (AKEHURST)

(7) Defined Territory • State territory is that defined portion of the surface of the globe which is subjected to the sovereignty of the State. (OPPENHEIM) A state must exercise control over certain area. It need not be exactly defined by metes and bounds, so long as there exists a reasonable certainty of identifying it. No minimum land area is required. (Montevideo Convention, art. 1).

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Territory is the physical or geographical area, separated by borders from other areas, over which a State has sovereignty, i.e. the competence to exercise its exclusive authority within that territory and prohibit foreign governments from exercising their authority there. National and international jurisprudence is also clear that territorial sovereignty is not constituted by the instances and patterns of the effective exercise of State authority. The rules for statehood do not necessarily apply for depriving States thereof. The loss of effective control over part of its territory does not deprive the State of the authority to exercise sovereign regulatory powers over that part of territory, and the State is equally sovereign with regard to any part of its territory whether it effectively controls it or not. (AKEHURST)

Effective Government General Rule: There must be a central government operating as a political body within the law of the land in effective control of the territory. [AUST]. Exception: The requirement of effective government is not strictly applied when the State, already long-existing, happens to undergo a period of civil strife or internal chaos due to natural disaster or invasion. Government de jure Government from law, that is , one with color of legitimacy Government de facto One that governs without a mandate of law. So long as it is in place. It may command obedience from the inhabitants of the occupied area. The de facto rule may suspend laws and enact new ones. Jus Postlimium Acts (executive, legislative, and judicial) done under the control of a de facto government, when they are not of a political complexion remain good even upon the restoration of the legitimate government. [See Co Kim Cham v. Valdez Tan Keh (November 16, 1945)]

2. RECOGNITION OF STATES AND GOVERNMENT Recognition Recognition is an act by which a state acknowledges the existence of another state, government or belligerent community and indicates Page 451 of 479

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willingness to deal with the entity as such under international law. Recognition is not a legal duty. As a public act of state, recognition is an optional and political act and there is no legal duty in this regard. (This is under the declaratory school) Views on recognition (1) Declarative Theory • Recognition is merely “declaratory” of the existence of the state and that its being a state depends upon its possession of the required elements and not upon recognition. (Bernas, Public International Law, 2009). (2) Constitutive Theory • recognition “constitutes” a state, that is, it is what it makes a state a state and confers legal personality on the entity. (Bernas, Public International Law, 2009). The weight of authority favors the “declaratory view”. (Bernas, Public International Law, 2009). Doctrines on recognition of de facto governments (1) Wilson/Tobar Doctrine - Also known as “Doctrine of Legitimacy” or “Policy of Democratic Legitimacy.” Holds that governments which came into power by extra-constitutional means [e.g. revolution, civil war, coup d’etat or other forms of internal violence] should not be recognized, at least until the change had been accepted by the people. [After US President Wilson, 1913 and Ecuadorian FM Tobar (1907)] (2) Stimson Doctrine - Doctrine of not recognizing any situation, treaty or agreement brought about by non- legal means. Precludes recognition of any government established as a result of external aggression. [After US Sec. of State Henry Stimson (1932)] (3) Estrada Doctrine - States should refrain from recognizing governments, as such are superfluous. Change in government does not affect the change in status of a state. This in effect results in the automatic recognition of governments in all circ*mstances. Posits that dealing or not dealing with the government established through a political upheaval is not a judgment on the legitimacy of the said government. [After Mexican Minister Genaro Estrada (1930)] [SHAW]

(4) Sovereignty v. Independence Sovereignty and Independence are different. Sovereignty refers to the supreme and uncontrollable power inherent in the state by which the State is governed. Independence refers to the power of a State to manage its external affairs without direction or interference from another state. (5) Principle of Auto-Limitation The concept of sovereignty as autolimitation is the property of State-force due to which it has the exclusive capacity of legal self-determination and selfrestriction. (People v. Gozo, G.R. No. L36409, October 26, 1973, citing Jellinek). Any State may, by its consent, express or implied, submit to a restriction of its sovereign rights. (People v. Gozo, G.R. No. L-36409, October 26, 1973) Concept of association of states An association is formed when two States of unequal power voluntarily establish durable links. In the basic model, one State, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a State. However, this concept is not recognized under the present Constitution. The Constitution does not contemplate any State in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. (The Province of North Cotabato v. GRP Panel on Ancestral Domains, G.R. No.183591, October 14, 2008). Principle of state continuity The State continues as a juristic being notwithstanding the changes in its circ*mstances, provided only that such changes do not result in the loss of any of its essential elements.

B. NON-STATE ENTITIES Non-State Entities These entities take on various forms: (1) Non-Government Institutions, both national and international (2) Indigenous and Minority groups (People of Rwanda, Lumads, Ifugaos) (3) Semi-autonomous groups (4) Human Rights Defenders (5) Terrorists (CPP-NPA, Al-Qa’ida, ISIS) (6) Paramilitary Groups (FBI SWAT, CIA, MILF) (7) Autonomous Areas (8) Internationalized Territories (9) Multinational Enterprises Page 452 of 479

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(10) Certain Individuals Non-State actors are groups that may promote human rights while others, commit crimes affecting the lives and human rights of individuals. International Legal Personality International personality is in principle indivisible, and its scope should be the same with respect to all primary (states) and derivative or secondary (all other subjects including non-state actors, sometimes called non-state participants in international relations) actors. There are four elements connected with international legal personality: (1) Treaty-making power (jus tractatuum) (2) A right to send and receive diplomatic envoys (jus legationis) (3) A right to present claims based on international responsibility (4) Right to use armed force Recognition The recognition of the right to self-determination will be decisive for establishing non-state actors’ position in international relations, and for granting them rights and obligations. Those rights depend therefore on the will of the third parties, so in fact non-state actors do not have international legal personality. There are no hom*ogenous criteria allowing the identification of particular subjects of non-state actors, and their acceptance depends upon recognition, so it’s highly political. They only possess certain international legal rights and obligations, e.g. in the domain of the law of armed conflicts (as to admissible weapons and methods of warfare) and humanitarian law. The scope of those rights and obligations is dependent upon the recognition by third parties, and consequently on conferral by them. The recognition will be of constitutive importance. The recognized non-state actors do not have per se any attributes of international legal personality, derived directly from general international law, except those connected with customary international human rights law.

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C. INTERNATIONAL ORGANIZATIONS International Organizations International organizations are created by sovereign States and whose functioning are regulated by international law, not the law of any given country. They have functional personality which is limited to what is necessary to carry out their functions as found in the instruments of the organization. This is different from an international NGO. NGOs are a diverse group of organizations that defy generalization, ranging from small informal groups to large formal agencies. NGOs play different roles and take different shapes within and across different societies. As a result, ‘‘NGO’’ as an analytical category remains complex and unclear. For example, despite the fact that NGOs are neither run by government, nor driven by the profit motive, there are nevertheless some NGOs that receive high levels of government funding, and others that seek to generate profits to plough back into their work. Boundaries are unclear, and as one might expect from a classification that emphasizes what they are not rather than what they are, NGOs therefore turn out to be quite difficult to pin down analytically. International Personality General Rule - The status and powers of an international organization is determined by agreement and not by general or customary international law. They are considered subjects of international law “if their legal personality is established by their constituent instrument.” Further, its constituent rights and duties, or capacities and immunities, are limited to those set forth in the treaty creating the international organization. Thus, legal personality in this context is a relative concept. (MAGALLONA) Exception – United Nations. It has objective international personality. Its personality is binding on the whole international community, including States who are not UN members. (Reparations for Injuries Advisory Opinion, ICJ, April 11, 1949). Preconditions for international personality (1) It must constitute a permanent association of states, with lawful objects, equipped with organs; (2) There must be a distinction, in terms of legal powers and purposes, between the organization and its member states; and (3) It must have legal powers that it may exercise on the international plane and not Page 453 of 479

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solely within the national systems of one or more states. [BROWNLIE]

D. STATUS OF INDIVIDUALS AND CORPORATIONS Personality of Individuals Under modern international law, an individual has limited personality. The question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In the Comfort Women Case, the Executive Department has decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question; thus, said determination by the Executive Department cannot be questioned through a petition for certiorari. (Vinuya v. Romulo G.R. No. 162230, April 28, 2010). Special Personality of Individuals Individuals may assume the status of subjects of international law only on the basis of agreement by states and in specific context, not in accordance with general or customary international law. Examples of assumption of status as subjects of international law (1) UNCLOS, art. 187(c)-(e) provides for jurisdiction of the Sea-Bed Disputes Chamber of the ITLOS over disputes between parties to contracts relating to the exploitation of marine resources. Parties to such contracts may be natural or juridical persons. (2) The Claims Settlement Declaration of 1981 between US and Iran provides for direct access to the Iran-US Claims Tribunal to individuals for the settlement of their claims involving more than $250,000either against Iran or the US. (3) The Mixed Claims Tribunals established in the Treaties of Peace concluded at the end of World War I provided for locus standi of individuals in actions against states relating to contracts, debts, and property adversely affected by the war. (4) The London Agreement of the International Military Tribunal at Nuremberg, relating to crimes against peace, war crimes and crimes against humanity, imposed duties

and liabilities upon individuals as well as upon states. (5) Convention on the Prevention and Punishment of the Crime of Genocide, art. VI defined “parties charged with genocide” as including individuals. (MAGALLONA) (6) The International Criminal Court has jurisdiction over individuals who commit genocide, crimes against humanity and war crimes, subject to conditions under the ICC Statute. (ICC Statute, art. 25(1) in relation to art. 5) Corporations’ International Legal Obligation In domestic law, it has long been accepted that legal persons such as companies have legal obligations for example under labour and environmental law and that they may be held liable for breaches of these obligations. As a matter of fact, companies cannot be imprisoned but in most states they can be sentenced to other criminal sanctions such as fines. In international law, there is no general rule that companies are responsible for their internationally wrongful acts. For obvious reasons it cannot be assumed that companies have the same obligations as states or even as individuals, even if developments appear to go in that direction. In 1998 the Rome Conference that adopted the Statute of the International Criminal Court came close to providing the Court with jurisdiction to try not only natural persons but also legal persons for the offences listed in the Statute. In the end, however, the proposal failed to gather sufficient support. Multilateral treaties generally impose obligations on states, not on companies. However, there are existing multilateral treaties that impose obligations to companies as well. (Kamminga, OHCHR)

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III. JURISDICTION TOPIC OUTLINE UNDER THE SYLLABUS A. BASIS OF JURISDICTION (1) Territoriality Principle (2) Nationality Principle (3) Protective Principle (4) Passive Personality Principle B. TITLE TO TERRITORY C. ADJACENT MARITIME SEAS (1) Territorial Sea (2) Contiguous Zone (3) Exclusive Economic Zone (4) Continental Shelf D. JURISDICTION OVER PERSONS AND ECONOMIC ACTIVITY (1) Criminal Jurisdiction a) General Theory b) Extradition (2) Civil Jurisdiction (3) Immunity from Jurisdiction a) Sovereign Immunity b) Diplomatic and Consular Immunity (4) Areas Not Subject to Jurisdiction of Individual States a) High Seas b) Deep Seabed c) Outer Space

A. BASIS OF JURISDICTION Jurisdiction Jurisdiction means the power of a state under international law to govern persons and property by its municipal law. This may be criminal or civil, and may be exclusive or concurrent with other states. [HARRIS] Kinds of Jurisdiction (1) Prescriptive jurisdiction refers to the power of a State to makes its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination by a court. (2) Adjudicative jurisdiction refers to a State’s jurisdiction to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings. (3) Enforcement jurisdiction refers to a State’s jurisdiction to enforce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action. Territoriality, Nationality, and Protective principles are generally supported by customary law. Universality Principle applies in special cases. Passive personality principle does not enjoy wide acceptance.

1. TERRITORIALITY PRINCIPLE Territoriality Principle The fundamental source of jurisdiction is sovereignty over territory. A State has absolute, but not necessarily exclusive, power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory. (Bernas, Public International Law, 2009)

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Effects Doctrine A State also has jurisdiction over acts occurring outside its territory but having effects within it. (Bernas, Public International Law, 2009)

that person on behalf of the international community, regardless of the nationality of the offender or victim or where the crime was committed. (Bernas, citing Bassiouini).

Principles of Effects Doctrine

Recognizes that certain activities, universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question. (Bernas, Public International Law, 2009)

(1) Subjective Territorial Principle A state has jurisdiction to prosecute and punish for crime commenced within the state but completed or consummated abroad. (2) Objective Territorial Principle A state has jurisdiction to prosecute and punish for crime commenced without the state but consummated within its territory. (Bernas, Public International Law, 2009)

2. NATIONALITY PRINCIPLE Nationality Principle Every state has jurisdiction over its nationals even when those nationals are outside the state. (Bernas, Public International Law, 2009) Statelessness Stateless persons are those who do not havea nationality. They are either de jure or de facto stateless. (Bernas, Public International Law, 2009) De jure Stateless Persons Those who have lost their nationality, if they had one, and have not acquired a new one. (Bernas, Public International Law, 2009) De facto Stateless Persons Those who have a nationality but to whom protection is denied by their state when out of the state. This is the situation of many refugees. (Bernas, Public International Law,2009)

3. PROTECTIVE PRINCIPLE Protective Principle A State may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by states in the international community. (Bernas, citing Restatement (402)[3]) Universality Principle Recognizes that certain offenses are so heinous and so widely condemned that any State, if it captures the offender, may prosecute and punish

4. PASSIVE PERSONALITY PRINCIPLE Passive Personality Principle A State may apply law – particularly criminal law – to an act committed outside its territory by a person not its national where the victim of the act was its national. The principle has not been ordinarily accepted for ordinary torts or crimes, but is increasingly accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality, or to assassination of a state’s diplomatic representatives or other officials. (Bernas, citing The Comment on § 402 of Third Restatement) Conflict of Jurisdiction Since there are various accepted principles for assuming jurisdiction, more than one State may have a valid claim to jurisdiction. (Bernas, Public International Law, 2009). Modes to Resolve Conflict of Jurisdiction (1) Was there an actual or intended effect on the State acquiring jurisdiction? (2) Is the effect sufficiently large to present a cognizable injury? (3) Are the interest and link to the State sufficiently strong, vis-à-vis those of other nations, to justify an assertion of extraordinary authority? If the answer is yes to all, then the court will assume jurisdiction. (Timberlane Lumber Co. v. Bank of America, 549 F2d 597, 1976). International Comity If exercising jurisdiction will be unreasonable, the State should refrain from doing so. Unreasonableness is determined by evaluating various factors, such as the link of the activity to the territory of the regulating State, the connection, such as nationality and residence or economic activity, Page 456 of 479

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between the regulating state and the person principally responsible for the activity to be regulated, the character of the activity to be regulated, the existence of justified expectations that might be protected or hurt by the regulation, the likelihood of conflict with regulation by another state. (Hartford Fire Insurance Co. v. California, 509 US 764, 1993). Forum non conveniens The principle is based on the real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractuss, or locus solutionis. Its application is discretionary on the part of the court. Forum conveniens presumptionis with the plaintiff. (Piper Aircraft Co. v. Reyno, 545 U.S. 235, 1981). Requisites for forum non conveniens Under the rule of forum non conveniens, a Philippine court or agency may assume jurisdiction over the case if it chooses to do so, provided: (1) that the Philippine court is one to which the parties may conveniently resort to; (2) that the Philippine court is in a position to make an intelligent decision as to the law and the facts; and (3) that the Philippine court has or is likely to have power to enforce its decision. (Manila Hotel v. NLRC, G.R. No. 120077, October 13, 2000). Reserved Domain of Domestic Jurisdiction It is the domain of state activities where the jurisdiction of the state is not bound by international law. The extent of this domain depends on international law and varies accordingly to its development (i.e., when a norm crystallizes into custom). The reservation of this domain is without prejudice to the use of enforcement measures under UN Charter, Ch. VII

B. TITLE TO TERRITORY Title to Territory Validity of claims by particular states. It is related to the conception of jurisdiction as powers and rights, as regulatory authority of states dependent on effective exercise of these powers. (CAMBRIDGE)

Modes of Acquiring Territory There are four modes of acquiring territory. The first two are original modes while the last two are derivative modes. (1) Occupation - refers not to mere discovery, but to effective exercise of sovereignty over a territory which is terra nullius (i.e., not subject to the sovereignty of any other state). It is the acquisition of territory that is terra nullius by any State which has the intention to claim sovereignty and occupies that territory by exercising effective and continued control. (2) Accession or accretion - the natural process of land formation resulting in the increase of territory. (3) Cession - the transfer of territory from one state to another by treaty (derivative). It is the only bilateral mode of acquiring territorial sovereignty. (4) Prescription - title is acquired by continuous and undisturbed exercise of sovereignty over a period of time. (5) Conquest - the taking of a territory of another sovereign by force of arms. Conquest is generally accepted to have been prohibited an considered acts as of aggression and violative of the prohibition on the use of force and territorial integrity. [See Definition of Aggression, UN GA Res. 3314 (XXIX) (1974)

C. ADJACENT MARITIME SEAS 1. TERRITORIAL SEA Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the UNCLOS. (UNCLOS, art. 3). Sovereignty over these waters (including the airspace above it and the seabed under it) is the same extent as its sovereignty over land. There is a right of innocent passage (UNCLOS, art. 7), and in case of certain straits, to transit passage. Under the UNCLOS, features that are above water at high tide generate an entitlement to at least a 12 nautical mile territorial sea, whereas features that are submerged at high tide generate no entitlement to maritime zones. (The South China Sea Arbitration, 2013-19, Jul. 12, 2016)

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2. CONTIGUOUS ZONE Coverage The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. (UNCLOS, art. 33) Area of water not exceeding 24 nautical miles from the baseline. It thus extends 12 nautical miles from the edge of the territorial sea (UNCLOS, art. 33). Jurisdiction over Contiguous Zone In the contiguous zone, the coastal State may exercise the control necessary to: - Prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea; - Punish infringement of the above laws and regulations committed within its territory or territorial sea. (UNCLOS, art. 33)

3. EXCLUSIVE ECONOMIC ZONE Coverage The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. (UNCLOS, art. 57) The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of the UNCLOS (UNCLOS, art. 55). Jurisdiction over EEZ In the exclusive economic zone, the coastal State has: (1) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters suprajacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (2) jurisdiction as provided for in the relevant provisions of the UNCLOS with regard to:

(a) the establishment and use of artificial islands, installations and structures; (b) maritime scientific research; (c) the protection and preservation of the marine environment; (d) Other rights and duties provided for in the UNCLOS. (UNCLOS, art. 56) Under the UNCLOS, states have the sovereign right to exploit the resources of this zone, but shall share that part of the catch that is beyond its capacity to harvest. (UNCLOS, art. 62) Obligations of States in EEZ In exercising their rights and performing their duties under the UNCLOS in the exclusive economic zone, States: (1) shall have due regard to the rights and duties of the coastal State and; (2) shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of the UNCLOS and other rules of international law. (UNCLOS, art. 58) Obligations of Coastal States In exercising their rights and performing their duties under the UNCLOS in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of the UNCLOS (UNCLOS, art. 56) Other Obligations of Coastal States (1) Ensuring conservation and management measures that the living resources of the EEZ are not subject to overexploitation. (UNCLOS, art. 61) (2) Promote the objective of “optimum utilization” of the living resources. (UNCLOS, art. 62) The entitlement of a feature to an exclusive economic zone depends on the objective capacity of a feature, in its natural condition, to sustain either a stable community of people or economic activity that is neither dependent on outside resources nor purely extractive in nature. The current presence of official personnel on the features is not enough to establish the right to an EEZ. (The South China Sea Arbitration, 2013-19, Jul. , 2016) If after determining the maximum allowable catch, the coastal State does not have the capacity to harvest the entire catch, it shall give other states access to the surplus by means of arrangements Page 458 of 479

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allowable under the UNCLOS. (UNCLOS, art. 62) The UNLCOS, however, does not specify the method for determining “allowable catch.” Within its EEZ, A Coastal State may also: (1) Establish and use of artificial islands, installations and structures; (UNCLOS, art. 60) (2) Conduct scientific research; and (3) Preserve and protect its marine environment. However, under Article 58, UNCLOS, all states enjoy the freedom of navigation, over flight, and laying of submarine cables and pipelines in the EEZ of coastal states. The coastal state has the right to enforce all laws and regulations enacted to conserve and manage the living resources in its EEZ. It may board and inspect a ship, arrest a ship and its crew and institute judicial proceedings against them. In detention of foreign vessels, the coastal state has the duty to promptly notify the flag state of the action taken. (UNCLOS, art. 73) Conflicts regarding the attribution of rights and jurisdiction in the EEZ must be resolved on the basis of equity and in the light of all relevant circ*mstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole (UNCLOS, art. 59).

(2) A distance of 200 nautical miles from the baselines of the territorial sea where the outer edge of the continental margin does not extend up to that distance. (UNCLOS, art. 76) Continental Margin The submerged prolongation of the land mass of the coastal state, and consists of the seabed and subsoil of the shelf, the slope and the rise. (UNCLOS, art. 76) Limits of the Continental Shelf The juridical or legal continental shelf covers the area until 200 nautical miles from baselines. The extended continental shelf covers the area from the 200-mile mark to 350 nautical miles from the baselines depending on geomorphologic or geological data and information. When the continental shelf extends beyond 200 nautical miles, the coastal state shall establish its outer limits. At any rate, the continental shelf shall not extend beyond 350 nautical miles from the baseline of the territorial sea, or 100 nautical miles from the 2500meter isobath (i.e., the point where the waters are 2500 meters deep). Rights of the Coastal State The continental shelf does not form part of the territory of the coastal state.

4. CONTINENTAL SHELF Coverage Also known as the archipelagic or insular shelf which refers to: (1) The seabed and subsoil of the submarine areas adjacent to the coastal State but outside the territorial sea, to a depth of 200 meters, or beyond that limit, to where the depth allows exploitation, and (2) The seabed and subsoil of areas adjacent to islands. (UNCLOS, art. 76). Extended Continental Shelf It is part of the Continental Shelf that lies beyond the 200 nautical miles from the coastal baselines. It is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its lands territory up to: (1) The outer edge of the continental margin; or

It only has sovereign rights with respect to the exploration and exploitation of its natural resources, including the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species. (UNCLOS, art. 77) The coastal state has the exclusive right to authorize and regulate oil-drilling on its continental shelf. (UNCLOS, art. 81) These rights are exclusive in the sense that when the coastal state does not explore its continental shelf or exploit its resources, no one may undertake these activities without the coastal state’s consent. (UNCLOS, art. 77)

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CONTINENTAL EXCLUSIVE SHELF ECONOMIC ZONE Duty to conserve and manage living resources No Duty The coastal state is obliged to manage and conserve the living resources in the EEZ. Rights of the coastal state to natural resources Relate to mineral and Have to do with other non-living natural resources of resources of the both waters super seabed and the adjacent to the seabed subsoil. and those of the seabed and the subsoil. Rights of the coastal state to living resources Apply only to Do not pertain to sedentary species of sedentary species. such living resources.

D. JURISDICTION OVER PERSONS AND ECONOMIC ACTVITY 1. CRIMINAL JURISDICTION a. General Theory In General States enjoy exclusive jurisdiction when it comes to dealing with crimes committed within their respective territories. Objections on states absolute sovereignty in criminal cases 2. Crimes against peace, war crimes, crimes against humanity and genocide are perpetrated by Governments or by individuals as representatives of Governments. Thus, their repression by territorial courts is so improbable that only an international criminal court could properly try these international crimes. 3. Absolute sovereignty is incompatible with the UN’s existence and functioning. States had to accept that a part of their sovereignty had been relinquished to the UN. (ALFARO)

b. Extradition Definition The removal of an accused from the Philippines with the object of placing him at the disposal of foreign BACK TO TOC

authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. [Philippine Extradition Law, Section 2(a)] Extradition means the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment. Fundamental Principles General Rule: There can only be extradition if there is a treaty between the States. (Philippine Extradition Law, Sec. 3) Outside a treaty, there is no rule in international law compelling a State to extradite anyone. Extradition may also sometimes take place as a matter of comity in the absence of an extradition treaty, if the states concerned are willing to allow it, although this has occasioned protests from a third state whose nationals are extradited in such circ*mstances [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, pp. 951-952] Exception: Political criminals are, as a rule, not extradited, and according to many extradition treaties, military deserters and persons who have committed offences against religion are likewise excluded from extradition; and many states refuse extradition if the death penalty will be enforced for the crime. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 959] Exceptions to the Exception: (1) Attentat clause – murder of the Head of a foreign Government or of a member of his family, should not be considered a political crime. Although the attentat clause originated in Belgium in 1856, it has since been widely adopted. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 969] (2) Article 7 of the Genocide Convention 1948

provides that the crime of genocide shall not be considered a political crime for the purpose of avoiding extradition in accordance with laws and treaties in force. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 970] Principle of Specialty A condition of extradition that the surrendered individual shall be tried and punished for those Page 460 of 479

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crimes exclusively for which his extradition has been asked and granted, or for those at least which the extradition treaty concerned enumerates. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 961] Who may be Extradited In principle, any individual, whether he is a national of the prosecuting state, or of the state which is required to extradite him, or of a third state, may be extradited. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 955] Absence of a Special Agreement In the absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state. Aut dedere aut judicare This means “either extradite or prosecute.” This principle is found in several multilateral treaties dealing with offences evoking the general condemnation of the international community have adopted the practice of obliging parties either to extradite persons found on their territory but wanted for trial on such an offence by another party, or to try such persons themselves. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 953] A state subject to this obligation is bound to extradite if it does not prosecute, and prosecute if it does not extradite. Principle of Double Criminality According to this, extradition is only granted in respect of a deed which is a crime according to the law of the state which is asked to extradite, as well as of the state which demands extradition— although not necessarily a crime of the same name in each, so long as there is a substantial similarity between the offences in each state. This is usually included in extradition treaties. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 958] Extradition for a crime before treaty effectivity A party to an extradition treaty may ask the other party to extradite a person for a crime committed before the effectivity of a treaty. It does not violate the prohibition against ex post facto laws. The constitutional prohibition applies to penal laws only. An extradition treaty is not a penal law. (Wright v. CA, G.R. No. 113213, Aug. 15, 1994).

Notice and Hearing A person does not have the right to notice and hearing during the evaluation stage of the extradition process. Extradition is a proceeding sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused guaranteed by the Bill of Rights. The process of extradition does not involve the determination of the guilt or innocence of an accused. There is no deprivation of the right to due process. (Secretary of Justice v. Hon. Lantion and Mark Jimenez, G.R. No. 139465, Oct. 17, 2000). Right to Bail An 461xtradite should not be deprived of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. The standard of proof required in granting or denying bail in extradition cases is clear and convincing evidence that the 461xtradite is not a flight risk and will abide with the orders of the extradition court. (Government of Hong Kong v. Olalia, Jr., G.R. No.153675, Apr. 19, 2007). If bail can be granted in deportation proceedings, there is no justification not to allow it for extradition because both are administrative proceedings where the innocence or guilt of the parties is not in issue. (Government of Hong Kong v. Olalia, Jr., G.R. No.153675, Apr. 19, 2007). Procedure for Extradition (1) Foreign diplomat of the Requesting State or Government requests for extradition with Secretary of Foreign Affairs. (2) DFA forwards request to DOJ. (3) DOJ files a petition for extradition with RTC. (4) RTC issues summons or Warrant of Arrest to compel the appearance of the individual. (5) Hearing (provide for counsel de officio if the accused does not have a legal counsel at the day of the hearing). (6) Appeal to CA within 10 days whose decision shall be final and executory (7) Decision forwarded to DFA through the DOJ (8) Individual placed at the disposal of authorities of the requesting State. The costs and expenses is to be shouldered by the Requesting State. (Philippine Extradition Law, §§ 4-8, 12, 16 & 18). Distinguished from deportation Extradition is the “removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities.” (PD 1069, §2(a)). It is a form of international judicial assistance designed to deny criminals a safe haven abroad. It Page 461 of 479

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is a formal procedure whereby an individual, accused or convicted of a crime under the laws of one State, is arrested in another State and handed over to the former State, at that State’s request, for trial or punishment. (Boczek, The A to Z of International Law, 60, 2010). Deportation is the act or an instance of removing a person to another country. (Black’s Law Dictionary, 504, 2004). It is exercised by the President to expel or deport aliens whose presence is deemed inimical to the public interest. Deportation is based on the face that since the aliens are not part of the nation, their admission to the territory is a matter of purse permission and simple tolerance which creates no obligation on the part of the government to permit them to stay. (Djumantan v. Domingo, G.R. No. 99358, Jan. 30, 1995) EXTRADITION Effected at the request of another state Based on Offenses Committed in the State or Origin Calls for the return of the fugitive to the requesting state

DEPORTATION Unilateral act of the State Based on causes arising in the local State An undesirable alien may be deported to a state other than his own or the state of origin

Aliens may be expelled or deported from the Philippines only on grounds and in the manner provided for by the Constitution, the Philippine Immigration Act of 1940, as amended and administrative issuances pursuant thereto. (Sec. of Justice v. Koruga, G.R. No. 166199, Apr. 24, 2009).

2. CIVIL JURISDICTION General Rule International Law particularly address questions of criminal law and essentially leaves civil jurisdiction to national control.

3. IMMUNITY FROM JURISDICTION a. Sovereign Immunity State Immunity from Suit It refers to a principle by which a state, its agents, and property are immune from the jurisdiction of another state (MAGALLONA).

its authority or extend its jurisdiction to another state without the consent of the latter through a waiver of immunity. Thus, domestic courts must decline to hear cases against foreign sovereigns out of deference to their role as sovereigns. Types of Immunity 1. 2.

Absolute Sovereign Immunity – where a state cannot be sued in a foreign court no matter what the act it is sued for Restrictive Sovereign Immunity – where a state is immune from suits involving governmental actions (jure imperii), but not from those arising from commercial or non-governmental activity (jure gestionis). (Bernas, Public International Law, 2009)

Absolute sovereign immunity is the dominant view in keeping with the maxim par in parem non habet imperium which stated that all states are sovereign equals and cannot assert jurisdiction over one another. A contrary attitude would “unduly vex the peace of nations”. (Bernas, Public International law, 2009) Status of principle of sovereign immunity from suits in international law It is a customary norm of international law that holds, unless waived by the state concerned. Such immunity applies even if the claim against the state is for violation of a jus cogens norm in international law. Furthermore, State assets are also immune from execution in connection with such claim.(Germany v. Italy, Jurisdictional Immunities of the State Case, ICJ, February 3, 2012). DFA determines immunity in the Philippines Under Philippine law, the DFA’s function includes the determination of persons and institutions covered by diplomatic immunities. While exclusive to the DFA, the DFA’s determination is not conclusive. Even with a DFA certification, however, the court is not precluded from making an inquiry into the intrinsic correctness of such certification. (China National Machinery & Equipment Corp. v. Santamaria, G.R. No. 185572,February 7, 2012)

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Rule on criminal jurisdiction on board merchant ships and government ships operated for commercial purpose The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage. Exceptions: (1) If the consequences of the crime extend to the coastal State; (2) If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (3) If the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (4) If such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. Except as provided in Part XII (Protection and Preservation of the Marine Environment) or with respect to violations of laws and regulations adopted in accordance with Part V (Exclusive Economic Zone), the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. (UNCLOS, art. 27). Non-Commercial Transactions of Ships owned and operated by the State Unless otherwise agreed between the States concerned, a State which owns or operates a ship cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the operation of that ship if, at the time the cause of action arose, the ship was used for other than government noncommercial purposes. (UN Convention on Jurisdictional Immunities of States and Their Property, art. 16) Rule on immunity from warships from execution A state’s naval vessel may not be proceeded against to answer for said state’s financial Act of State Doctrine Courts of one country will not sit in judgment on the acts of the government of another in due deference

to the independence of sovereignty of every sovereign State (PCGG v. Sandiganbayan, G.R. No. 124772, August 14, 2007). The Act of State doctrine is one of the methods by which States prevent their national courts from deciding disputes which relate to the internal affairs of another State, the other two being immunity and non-justiciability. It is an avoidance technique that is directly related to a State’s obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits. (PCGG v. Sandiganbayan, G.R. No. 124772, August 14, 2007).

b. Diplomatic Immunity

and

Consular

Diplomatic Immunity Diplomatic immunity essentially differs from State immunity in that the modern law on diplomatic immunity is contained in the 1961 Vienna Convention on Diplomatic Relations Consequently, the rules on diplomatic immunity work much more smoothly and uniformly than, say, the ‘rules’ on State immunity. Diplomatic relations are established by mutual consent between the two States concerned. However, they may be broken off unilaterally (often as a mark of disapproval of an illegal or unfriendly act by the other State); when State A breaks off diplomatic relations with State B, it not only withdraws its own diplomatic mission from State B, but also requires State B to withdraw its mission from State A. (AKEHURST) Immunity from the jurisdiction of courts The preamble to the 1961 Vienna Convention recites that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States” it is still the case that diplomatic immunity under Article 31 VCDR is wider than State immunity available to all State officials, in that Article 31 does not focus on the nature of acts in relation to which immunities may be claimed. (AKEHURST)

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Diplomat’s Liability One of the most striking features of the Vienna Convention is that it does not grant full immunity to all the staff of a diplomatic mission. In addition to diplomatic agents, the Convention speaks of administrative and technical staff (for example, clerical assistants) and of service staff (for example, drivers and receptionists).

(3) The international organization should, as a collective of States members, be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. (International Catholic Immigration Commission v. Calleja, G.R. No. 85750, September 28, 1990

These two categories of subordinate staff have complete immunity from criminal jurisdiction, but their immunity from civil and administrative jurisdiction is limited to their official acts. The same is true of diplomatic agents who are nationals or permanent residents of the receiving State

4. AREAS NOT SUBJECT TO JURISDICTION OF INDIVIDUAL STATES

When an individual ceases to be a member of the staff of a diplomatic mission, his immunity continues for a reasonable time thereafter, in order to give him time to leave the country. After that, he may be sued for private acts done during his period of office, but not for official acts. (AKEHURST) Immunities of international organizations and its officers One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., it is immune from the legal writs and processes issued by the tribunals of the country where it is found. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may interfere in their operations or even influence or control its policies and decisions of the organization; besides, such subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its memberstates. (Southeast Asian Fisheries v. NLRC, G.R. No. 86773, February14, 1992). There are basically three propositions underlying the grant of international immunities to international organizations. These principles, contained in the ILO Memorandum are stated thus: (1) International institutions should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; (2) No country should derive any national financial advantage by levying fiscal charges on common international funds; and

a. High Seas All parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. (UNCLOS, Art. 86) Allowable Acts in the High Seas (1) (2) (3) (4)

Freedom of navigation Freedom of overflight Freedom of scientific research Freedom to construct artificial islands and structures (5) Freedom of fishing (6) Freedom to lay submarine cables and pipelines (UNCLOS, art. 87). China’s “nine-dash line” and its claim to resources based on historic right is incompatible with the detailed allocation of rights and maritime zones under the UNCLOS. Even if China had historic rights to resources in the waters of the South China Sea, such rights were extinguished by the entry into force of the Convention to the extent they were incompatible with the Convention’s system of maritime zones. Further, China’s historical navigation and fishing in the waters of the South China sea represents the exercise of high seas freedom, not the exercise of historic right. (The South China Sea Arbitration, 2013-19, July. 12, 2016)

b. Deep Seabed Coverage This is the part of the seabed that is beyond national jurisdiction and is referred to as ‘the Area’ in the UN Convention on the Law of the Sea.

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c. Outer Space Outer Space Treaty The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation. (ART 1, UN Outer Space Treaty) Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. (ART 2, UN Outer Space Treaty)

————- end of topic ————

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IV. INTERNATIONAL RESPONSIBILITY TOPIC OUTLINE UNDER THE SYLLABUS A. CONCEPT OF IMPUTABILITY OF INTERNATIONALLY WRONGFUL ACT OR OMISSION B.

REPARATION

C. INTERNATIONAL PROTECTION OF HUMAN RIGHTS (INCLUDING REFUGEES AND STATELESS PERSONS) 1. Remedies Under Treaty-Based Mechanisms D. INTERNATIONAL MINIMUM STANDARD AND NATIONAL TREATMENT (INCLUDING EXPROPRIATION OF FOREIGN-OWNED PROPERTIES) E. ENVIRONMENTAL HARM 1. Precautionary principle F.

INTERNATIONAL CLAIMS

A. CONCEPT OF IMPUTABILITY OF INTERNATIONALLY WRONGFUL ACT OR OMISSION Doctrine of State Responsibility State responsibility is a fundamental principle of international law whereby a State, either by an act or omission, has breached an international obligation in force and incurs, in the absence of circ*mstances precluding wrongfulness of its conduct, certain legal consequences for the internationally wrongful act attributable to it, including the obligation to cease the wrongful conduct and make such full reparation of any material and moral damage to the injured State or States as is reasonably adequate depending on the merits of the case in question. (Boczek, The A to Z of International Law, 121, 2010). Every internationally wrongful act of a state entails the international responsibility of that State. Elements of an Internationally Wrongful Act or Omission There is an internationally wrongful act of a State when conduct consisting of an action or omission: (1) is attributable to the State under international law; and (2) constitutes a breach of an international obligation of the State. (ARSIWA, art. 2) The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law. (ARSIWA, art. 3) Responsibility of a State in connection with the Act of Another State (1) A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circ*mstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State. (ARSIWA, art. 16) (2) A State which directs and controls another State in the commission of an internationally wrongful act by the latter is internationally responsible for that act if: (a) that State does so with knowledge of the circ*mstances of the internationally wrongful act; and Page 466 of 479

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(b) the act would be internationally wrongful if committed by that State. (ARSIWA, art. 17) (3) A State which coerces another State to commit an act is internationally responsible for that act if: (a) the act would, but for the coercion, be an internationally wrongful act of the coerced State; and (b) the coercing State does so with knowledge of the circ*mstances of the act. (ARSIWA, art. 18) Circ*mstances Precluding Wrongfulness (1) Consent (2) Self-Defense (3) Countermeasure in Respect of an Internationally Wrongful Act (4) Force Majeure (5) Distress (6) Necessity (7) Compliance with Peremptory Norms (ARSIWA, Ch. V). Consent Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent. (ARSIWA, art. 20) Self-defense The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self- defense taken in conformity with the Charter of the United Nations. (ARSIWA, art. 21) Requisites of Self-Defense: (1) A State must have been the victim of an armed attack; (2) That State must declare itself as a victim of an armed attack. The assessment on whether an armed attack had taken place or not, is done by the State who was subjected to the attack. (3) In the case of collective self-defense, the victim State must request for assistance. (U.S. v. Nicaragua, ¶195) Countermeasure in Respect of an Internationally Wrongful Act The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State. (ARSIWA, art. 22)

Force Majeure The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circ*mstances to perform the obligation. This does not apply if: (1) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (2) the State has assumed the risk of that situation occurring. (ARSIWA, art. 23) Distress The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care. This does not apply if: (1) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (2) the act in question is likely to create a comparable or greater peril. (ARSIWA, art. 24) Necessity Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (1) the international obligation in question excludes the possibility of invoking necessity; or (2) the State has contributed to the situation of necessity. (ARSIWA, art. 25)

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Compliance with Peremptory Norms Nothing in the ASR precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law. (ARSIWA, art. 26)

B. REPARATION Duty to cease the act The State responsible for the wrongful act is under the obligation to: (1) Cease the act if it is still continuing; and (2) Offer appropriate assurances and guarantees of non-repetition, if circ*mstances so require (ARSIWA, art. 30). The legal consequences of an internationally wrongful act under this part do not affect the continued duty of the responsible State to perform the obligation breached. (ARSIWA, art. 29) Duty to make reparations The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. (ARSIWA, art. 31) State cannot invoke internal law The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations to make reparations. (ARSIWA, art. 32) Three Forms of Reparation: (1) Restitution (2) Compensation (3) Satisfaction Either singly or in combination (ARSIWA, art. 34). Restitution A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to reestablish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (1) Is not materially impossible; (2) Does not involve a burden out of all proportion to the benefit of the party deriving from restitution instead of compensation. (ARSIWA, art. 35)

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Compensation The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established. (ARSIWA, art. 36) Satisfaction The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State. (ARSIWA, art. 37) Objects and limits of countermeasures (1) An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations. (2) Countermeasures are limited to the nonperformance for the time being of international obligations of the State taking the measures towards the responsible State. (3) Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question. (ARSIWA, art. 49) Proportionality of countermeasures Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question. (ARSIWA, art. 51) Conditions for Countermeasures (1) Before taking countermeasures, an injured State shall: (a) call upon the responsible State, in accordance with [the procedure for putting forward claims], to fulfil its obligations; (b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State. (2) Notwithstanding paragraph 1 (b), the injured State may take such urgent Page 468 of 479

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countermeasures as are necessary to preserve its rights. (3) Countermeasures may not be taken, and if already taken must be suspended without undue delay if: (a) the internationally wrongful act has ceased; and (b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties. (4) Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith. (ARSIWA, art. 52) Obligations not Affected by Countermeasures Countermeasures shall not affect: (1) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; (2) obligations for the protection of fundamental human rights (3) obligations of a humanitarian character prohibiting reprisals (4) other obligations under peremptory norms of general international law. A State taking countermeasures is not relieved from fulfilling its obligations: (1) under any dispute settlement procedure applicable between it and the responsible State; (2) to respect the inviolability of diplomatic or consular agents, premises, archives and documents. (ARSIWA, art. 50) Termination of Countermeasures Countermeasures shall be terminated as soon as the responsible State has complied with its obligations under part two in relation to the internationally wrongful act. (ARSIWA, art. 53)

C. INTERNATIONAL PROTECTION OF HUMAN RIGHTS (INCLUDING REFUGEES AND STATELESS PERSONS) 1. REMEDIES UNDER TREATY-BASED MECHANISMS Definition of Refugees As a result of events occurring before January 1, 1951, and owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political

opinion, is outside the country of his nationality, and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country. It is also one who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. [1951 Convention Relating to the Status of Refugees (“1951 Convention”), art. 1(A)(2)] Governing Statutes The controlling international convention on refugee law is the 1951 Convention relating to the Status of Refugees (1951 Convention) and its 1967 Optional Protocol relating to the Status of Refugees. Persons not covered by the 1951 Convention Relating to the Status of Refugees (1) One who has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (2) One who has committed a serious nonpolitical crime outside the country of refuge prior to his admission to that country as a refugee; (3) One who has been guilty of acts contrary to the purposes and principles of the United Nations. [1951 Convention, art 1(F)]. Rights of Refugees Refugee law and international human rights law are closely intertwined; refugees are fleeing governments that are either unable or unwilling to protect their basic human rights. Additionally, in cases where the fear of persecution or threat to life or safety arises in the context of an armed conflict, refugee law also intersects with international humanitarian law. Specific Rights under the 1951 Convention (1) Right to have rights previously acquired and dependent on personal status, more particularly rights attaching to marriage, be respected, subject to compliance [art. 12(2)] (2) Free access to courts of law [art. 16(1)] (3) Right to receive the same treatment as nationals of the receiving country with regard to the following rights: (a) Free exercise of religion and religious education (art. 4) (b) Protection of rights in literary, artistic and scientific works (art. 14) Page 469 of 479

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(c) Protection of intellectual property, such as inventions and trade names (art. 14) (d) Free access to the courts, including legal assistance and exemption from caution judicatum solvi [art. 16(2)] (e) Access to elementary education [art. 22(1)] (f) Access to public relief and assistance (art. 23) (g) Protection provided by social security [art. 24(1)(b)] (h) h. Equal treatment by taxing authorities [art. 29(1)] (4) Right to receive the most favorable treatment provided to nationals of a foreign country with regard to the following rights: (a) Right of association (art. 15) (b) The right to engage in wage- earning employment [art. 17(1)] (5) Right to receive the most favorable treatment possible, which must be at least as favorable to that accorded aliens generally in the same circ*mstances, with regard to the following rights: (a) The right to own property (art. 13) (b) The right to self-employment (art. 18) (c) The right to practice a profession [art. 19(1)] (d) Access to housing (art. 21) (e) Access to higher education [art 22(2)] (6) Right to receive the same treatment as that accorded to aliens generally with regard to the following rights: (a) The right to choose their place of residence (art. 26) (b) The right to move freely within the country (art. 26) Principle of Non-Refoulement No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. (1951 Convention, art. 33). It does not distinguish between returning them to the State from which they might have come or to one that will also maltreat them.

Internally Displaced Persons Persons or groups of persons who have been forced or obliged to flee or to leave their homes of places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border. (UN Guiding Principles on Internal Displacement, par. 2) Stateless Persons A person who is not considered as a national by any State under the operation of its law. [1954 Convention relating to the Status of Stateless Persons (“Statelessness Convention”), art. 1(1)] Stateless Convention Not Applicable to the Following: (1) To persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance; (2) To persons who are recognized by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to the possession of the nationality of that country; (3) To persons with respect to whom there are serious reasons for considering that: (a) they have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes; (b) they have committed a serious nonpolitical crime outside the country of their residence prior to their admission to that country; (c) they have been guilty of acts contrary to the purposes and principles of the United Nations. [Statelessness Convention, art. 1(2)] Rights of Stateless Persons Under the Statelessness Convention, a stateless person is entitled to, among others, the right to religion and religious instruction, access to courts, elementary education, public relief and assistance and rationing of products in short supply, as well as treatment of no less favorable than that accorded to aliens. Page 470 of 479

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Also, under the Universal Declaration of Human Rights: (1) Everyone has a right to the nationality. [art. 15(1)] (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. [art. 15(2)] Types of Stateless Persons (1) De Jure Stateless Persons - Persons who are not nationals of any State, either because at birth or subsequently they were not given any nationality, or because during their lifetime they lost their own nationality and did not acquire a new one. (UN Study of Statelessness, p.7) (2) De Facto Stateless Persons – Persons who, having left the country of which they were nationals, no longer enjoy the protection and assistance of their national authorities, either because these authorities refuse to grant them assistance and protection, or because they themselves renounce the assistance and protection of the countries of which they are nationals. (UN Study of Statelessness, p. 7) Asylum Seeker A person who has left their country and is seeking protection from persecution and serious human rights violations in another country, but who hasn’t yet been legally recognized as a refugee and is waiting to receive a decision on their asylum claim. (Amnesty International) Foundlings Definition A foundling shall be a deserted or abandoned child or infant with unknown facts of birth and parentage. This shall also include those who have been duly registered as a foundling during her or his infant childhood, but have reached the age of majority without benefitting from adoption procedures upon the passage of this law (R.A 11767. Foundling Recognition and Protection Act) A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within the territory of parents possessing the nationality of that State. (Poe-Llamanzares v. COMELEC, G.R. No. 221697, Mar. 8, 2016, citing 1961 United Nations Convention on the Reduction of Statelessness, art. 2) These principles found in the two conventions are generally accepted principles of international law.

(Poe-Llamanzares v. COMELEC, G.R. No. 221697, Mar. 8, 2016) That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of Statelessness does not mean that their principles are not binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human Rights, Article 15 (1) of which effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to Article 15 (1) of the UDHR. (Poe-Llamanzares v. COMELEC, G.R. No. 221697, Mar. 8, 2016) Citizenship of Foundlings Foundlings are citizens under international law. Article 24 of the International Covenant on Civil and Political Rights provides for the right of every child “to acquire a nationality.” The Philippines is obligated under UDHR, UNCRC and ICCPR to grant nationality from birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No. 473, as amended, and RA 9139, both of which require the applicant to be at least 18 years old. (Poe-Llamanzares v. COMELEC, G.R. No. 221697, Mar. 8, 2016) In a case decided by the Supreme Court, the Chief Justice pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as citizens. These circ*mstances, including the practice of jus sanguinis countries, show that it is a generally accepted principle of international law to presume foundlings as having been born of nationals of the country in which the foundling is found. (Poe-Llamanzares v. COMELEC, G.R. No. 221697, Mar. 8, 2016)

D. INTERNATIONAL MINIMUM STANDARD AND NATIONAL TREATMENT (INCLUDING EXPROPRIATION OF FOREIGNOWNED PROPERTIES) Treatment and Admission of Foreign Investments Under general international law, a State has an unlimited discretion as to allowing investors entry into its own territory. The content of bilateral investment treaty provisions entails no automatic claim to being admitted, and “the host State is under no obligation to revise its domestic laws of Page 471 of 479

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BAR OPERATIONS 2023 admission after ratification investment treaty”.

the

bilateral

Instead, full play is given to laws and regulations of a host country so that only foreign investments admitted into the State in conformity with domestic legislation are entitled to protection stipulated under relevant treaties. (AKEHURST) Requirements to be considered an Investment (1) Contribution of money or assets; (2) Certain duration over which the project was to be implemented; (3) Element of risk; and (4) Contribution to the host state’s economy (AKEHURST) Doctrine of Acquired Rights “Acquired” (or “vested”) rights concern whether the same State under whose law the relevant private law right has been acquired must respect the existence and exercise of that right; and whether a State should respect rights acquired under another State’s legal system. (AKEHURST) International Minimum Standard A State’s only duty was to treat foreigners in the same way as it treated its own nationals (“national standard”). A national treatment standard is difficult to formulate and apply as a matter of general international law, because national legal systems and standards diverge from State to State. An international minimum standard at least aspires to formulate a uniformly applicable international standard. General international law imposes on States no distinct protection standards specifically with regard to investors. Instead investors enjoy only such rights as are available to all aliens under general international law or human rights treaties. (AKEHURST) A State’s international responsibility will be engaged if: (1) Unlawful killing, imprisonment, physical illtreatment or damage of property (2) Excessive severity in maintaining law and order (a) Such as punishment without a fair trial, (b) excessively long detention before trial, (c) fatal injuries inflicted by policemen dispersing a peaceful demonstration, (d) unduly severe punishment for a trivial offence, and so on.

(3) Maladministration of justice in civil or criminal proceedings can engage a State’s responsibility (4) Failure to safeguard aliens’ rights, especially in the context of unrest or rebellion, relating to the doctrine of attribution under the law of State responsibility. Most Favored Nation and National Treatment Most favored nation clauses included in a treaty ordinarily require that one party grants to the nationals of another party any privilege or favor it grants to nationals of any other State under another treaty. It can have a precise subject matter or a more general content. Ordinarily, for a MFN clause to take effect, obligations contained in the basic treaty containing the MFN clause and in the treaty to which the MFN clause refers should cover the same subject matter. (AKEHURST) Expropriation Concept of Expropriation Expropriation is commonly understood to refer to unilateral interference by the State with the property or comparable rights of an owner in general terms. Customary law limits on State expropriation: (1) Expropriation must be for public purpose (2) It must be accompanied by payment of compensation for the full value of the property Indirect expropriation Indirect expropriation can be defined as treatment rendering property rights useless even if not actually involving expropriation of the property. Any act which deprives a foreigner indefinitely of all benefit from his property is regarded by international law as an expropriation, even though a formal change of ownership may not have occurred. (AKEHURST) Calculation of compensation for expropriation Some disputes arising between those States which believe that full compensation must be paid for expropriation and other States which think otherwise, are usually settled by a compromise; the expropriating State pays part of the value of the expropriated property. Page 472 of 479

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The compromise usually takes the form of a global settlement or “lump sum agreement”, so-called because it covers all the claims made by one State arising out of a particular nationalization program of the other State, instead of dealing with each individual’s claim separately. (AKEHURST) Expropriation of contractual rights Contractual rights fall within the concept of expropriation where “investment” can be defined to include contractual rights, and the host State acts in a way that goes beyond an ordinary breach of contract and engages in the unlawful or arbitrary use of State authority. (AKEHURST)

E. ENVIRONMENTAL HARM Concept of environmental harm Environmental damage is “damage caused by the hazardous activity to the environment itself with or without simultaneously causing damage to persons or property and hence is independent of any damage to such persons and property”. (ILC’S 2006 DRAFT ARTICLES)

1. PRECAUTIONARY PRINCIPLE In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation (Principle 15, Rio Declaration). In the Philippines, the legal remedy is called Writ of Kalikasan. It provides for protection of one’s right to a balance and healthful ecology in accord with the rhythm and harmony of nature. Factors to be Considered (1) Threatening to human life or health; (2) Inequity to present or future generations; or (3) Prejudice to the environment without legal consideration of the environmental rights of those affected (International Service for the Acquisition of Agri-Biotech Applications v. Greenpeace, G.R. No. 209271, Dec. 8, 2015, citing Part V, Rule 20 of the Rules)

the Acquisition of Agri-Biotech Applications v. Greenpeace, G.R. No. 209271, Dec. 8, 2015) The case for the precautionary principle is strongest when the following features coincide: (1) Settings in which the risks of harm are uncertain; (2) Settings in which harm might be irreversible and what is lost is irreplaceable; and (3) Settings in which the harm that might result would be serious. (International Service for the Acquisition of Agri-Biotech Applications v. Greenpeace, G.R. No. 209271, Dec. 8, 2015) When in doubt, cases must be resolved in favor of the constitutional right to a balanced an d healthful ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the precautionary principle may find applicability. (International Service for the Acquisition of Agri-Biotech Applications v. Greenpeace, G.R. No. 209271, Dec. 8, 2015) The precautionary principle only applies when the link between the cause, that is the human activity sought to be inhibited, and the effect, that is the damage to the environment, cannot be established with full scientific certainty. (West Tower Condominium v. First Philippine Industrial Corporation, G.R. No. 194239, Jun. 16, 2015)

F. INTERNATIONAL CLAIMS Concept of international claims International claims for compensation for illegal acts are regarded as being intensely “personal”. So long as the State responsible remains in existence as a legal person, it can and should bear responsibility for its own deeds. However, new States ought to commence with a “clean slate” and extinction of either the claimant State or the defendant State might be seen as resulting in the extinction of the claim. (AKEHURST)

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V. DISPUTE RESOLUTION TOPIC OUTLINE UNDER THE SYLLABUS A. LEGALITY OF THE USE OF FORCE B. CONCEPT OF INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS A. The Role of the International Criminal Court C. JUDICIAL AND ARBITRAL SETTLEMENT A. International Court of Justice B. Permanent Court of Arbitration

A. LEGALITY OF THE USE OF FORCE Jus ad Bellum v. Jus in Bello (1) Jus ad bellum refers to the conditions under which States may resort to war or to the use of armed force in general. The prohibition against the use of force amongst States and the exceptions to it (self-defense and UN authorization for the use of force), set out in the United Nations Charter of 1945, are the core ingredients of jus ad bellum (2) Jus in bello regulates the conduct of parties engaged in an armed conflict. IHL is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible. (ICRC) Two Branches (1) Law of The Hague - the body of rules establishing the rights and obligations of belligerents in the conduct of hostilities, and which limits means and methods of warfare. (2) Law of Geneva - the body of rules that protects victims of armed conflict, such as military personnel who are hors de combat and civilians who are not or are no longer directly participating in hostilities (ICRC) International Human Rights Law v. International Humanitarian Law IHRL IHL Both are aimed at protecting the individual and apply simultaneously in times of international & non-international armed conflicts. Protects the individual Regulates the from abusive or conduct of hostilities arbitrary exercise of and the protection of power by State persons in situations authorities of armed conflict Human rights law applies only where individuals find themselves within territory controlled by a State, including occupied territories (territorial jurisdiction), or where a State exercises effective control, most commonly physical custody, over

The personal, material and territorial applicability of IHL essentially depends on the existence of a nexus with an armed conflict

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BAR OPERATIONS 2023 individuals outside its territorial Jurisdiction (personal jurisdiction). Human rights law focuses specifically on human beings

Human rights law is binding only on States

IHL also directly protects, for example, livestock, civilian objects, cultural property, the environment and the political order of occupied territories. IHL is binding on all parties to an armed conflict, including nonState armed groups IHL applies only in armed conflicts and is specifically designed for such situations.

Human rights law applies irrespective of whether there is an armed conflict. In times of public emergency, however, Therefore, unless human rights law expressly foreseen in allows for derogations the relevant treaty from protected rights provisions, the rules to the extent actually and principles of IHL required by the cannot be derogated exigencies of the from situation. [Table made from IHL: A Comprehensive Introduction (“Intro to IHL”), p. 27-30]

B. CONCEPT OF INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS Armed Conflict v. War ARMED CONFLICT Today, an international armed conflict is presumed to exist as soon as a State uses armed force against another State, regardless of the reasons for or intensity of the confrontation, and irrespective of whether a political state of war has been formally declared or recognized.

WAR Traditionally, States expressed their belligerent intent (animus belligerendi) through formal declarations of war, which, ipso facto, created a political state of war and triggered the applicability of the law of war (jus in bello) between them, even in the absence of open hostilities.

Types of Armed Conflict IHL distinguishes two types of armed conflicts, namely: (1) International armed conflicts (“IAC”), opposing two or more States (a) Wars of National Liberation are also considered IAC. [How is the Term “Armed Conflict” Defined in International Humanitarian Law?, ICRC, Opinion Paper, March 2008, p. 2 (“ICRC Opinion Paper”)] (2) Non-international armed conflicts (“NIAC”), between governmental forces and nongovernmental armed groups, or between such groups only. (ICRC Opinion Paper, p. 1) Armed conflicts subject to foreign intervention are a special form of armed conflict sometimes also less accurately referred to as “internationalized” armed conflicts. In essence, this concept refers to a State, or coalition of States, intervening in a pre-existing non-international armed conflict, thereby becoming a (co-belligerent) party to that conflict. (Intro to IHL, p. 73). International Armed Conflicts (IAC) An international armed conflict occurs when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation. No formal declaration of war or recognition of the situation is required. The existence of an international armed conflict, and as a consequence, the possibility to apply IHL to this situation, on what actually happens on the ground. It is based on factual conditions. (ICRC) General Rule: Under Article 2(4) of the UN Charter, all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Exception: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. (UN Charter, art. 51) Anticipatory Self Defense Article 51 of the UN Charter recognizes the inherent right of States to self-defense if an armed attack occurs. Page 475 of 479

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Collective Self-Defense Before a State can be justified in assisting another by way of collective self -defense: (1) A State must have been the victim of an armed attack; (2) That State must declare itself as a victim of an armed attack. The assessment of whether an armed attack had taken place or not, is done by the State who was subjected to the attack. A third State cannot exercise a right of collective self-defense based on that third State’s own assessment; (3) In the case of collective self-defense, the victim State must request for assistance. (U.S. v. Nicaragua, ¶232, Jun. 27, 1986)

in areas of weak governance, such as so-called “failed States.”

Self Defense v. Just War SELF DEFENSE It refers to the use of force to repel an attack or imminent threat of attack directed against oneself or others or a legally protected interest.

Threshold of Protracted Armed Violence A criterion that in practice has been interpreted as referring more to the intensity of the armed violence than to its duration.

JUST WAR Once a State has a valid reason for resorting to force, there is no limit on the extent of force which could be employed.

Self-defense in international law refers to the inherent right of a State to use of force in response to an armed attack. (ICRC)

Internal or Non-International Armed Conflict (NIAC) These are armed conflicts that take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.

In order for a non-State armed group to be considered a “party” to a conflict, common Article 3 does not require any recognition of belligerency by the opposing State, nor popular support, territorial control or political motivation. (Intro to IHL, p. 68) Requisites of an NIAC: (1) Protracted armed violence (2) Such armed violence is between governmental authorities and organized armed groups or between such groups within a State. (Prosecutor v. Tadić Trial Decision, ¶561, May 7, 1997)

Indicative factors for assessing “intensity” have included: “the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and caliber of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. (Intro to IHL, p.70) Organized Armed Group The armed wing of a non-state party to a noninternational armed conflict, and may be comprised of either: (1) dissident armed forces (for example, breakaway parts of state armed forces); or (2) other organized armed groups which recruit their members primarily from the civilian population but have developed a sufficient degree of military organization to conduct hostilities on behalf of a party to the conflict.

It does not include situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. [Additional Protocol II to the Geneva Conventions of 1949 (AP II)], art. 1].

The term organized armed group refers exclusively to the armed or military wing of a non-state party to a non-international armed conflict. It does not include those segments of the civilian population that are supportive of the non-state party such as its political wing. (ICRC)

Difference of AP II, art. 1 and Common Article 3 of the Geneva Conventions A NIAC within the meaning of common Article 3 does not necessarily have to involve a government; it can also take place entirely between organized armed groups, a scenario that is particularly relevant

The level of organization of non-State armed groups has in practice been assessed based on a series of indicative factors including elements such as: “the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group Page 476 of 479

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controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as ceasefire or peace accords.[Additional Protocol II to the Geneva Conventions of 1949 (AP II), art. 1]. (Intro to IHL, p.69) Internationalized Armed Conflict An internationalized armed conflict refers to an internal conflict that had become internationalized because of external support. An NIAC becomes internationalized when another State has overall control over an organized armed group, which is going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. (Prosecutor v. Tadić)

The Court’s jurisdiction can be exercised only in relation to crimes committed after the entry of the Statute into force, or after its entry into force for a State that has acceded to it afterwards, whichever is the later (Article 11 ICC Statute). Article 12 ICC Statute further specifies the Court can exercise jurisdiction over a crime if either, or both, the State of nationality of the perpetrator or the State where the crime has occurred are parties to the Statute. Thus, Article 12 ICC Statute clearly allows jurisdiction to be exercised over nationals of a nonState-party as well as over crimes committed on the territory of a non-State- party.

C. JUDICIAL AND ARBITRAL SETTLEMENT 1. INTERNATIONAL COURT OF JUSTICE

Wars of National Liberation Armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination. Those engaged in such a conflict receive combatant status and are entitled to combatant rights and duties. This conflict is considered an international armed conflict under Article 1, 3rd and 4th pars., Protocol 1. (Additional Protocol I to the Geneva Conventions of 1949).

The International Court of Justice shall be the principal judicial organ of the United Nations. (Article 92, United Nations Charter)

Wars by peoples against racist, colonial and alien domination “for the implementation of their right to self-determination and independence is legitimate and in full accord with principles of international law,” and that any attempt to suppress such struggle is unlawful [Resolution 3103 (XXVIII)].

Members of the International Court of Justice (1) All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. (2) A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council (Article 93, United Nations Charter)

When peoples subjected to alien domination resort to forcible action in order to exercise their right to self-determination, they “are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.” [UN GA Reso. 2625 (XXV)]

1. THE ROLE OF THE INTERNATIONAL CRIMINAL COURT Jurisdiction of the International Criminal Court The International Criminal Court has jurisdiction over individuals who commit genocide, crimes against humanity and war crimes, subject to conditions under the ICC Statute. (ICC Statute, art. 25(1) in relation to art. 5)

The Court has two functions: to settle legal disputes submitted to it by States (contentious jurisdiction) and to give advisory opinions on legal questions referred to it by international organs and agencies duly authorized to do so (advisory jurisdiction). (AKEHURST)

Decisions of the International Court of Justice (1) Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. (2) If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon Page 477 of 479

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measures to be taken to give effect to the judgment. (Article 94, United Nations Charter) Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future. (Article 95, United Nations Charter)

2. Permanent Court of Arbitration Arbitration gives the parties wider choice as regards the seat of the tribunal, the appointment and selection of arbitrators and their qualifications, the procedure to be applied and the regulating the power of the tribunal through formulating its terms of reference (the so-called compromise). A frequent pattern in arbitration treaties is for each of the two parties to appoint an arbitrator; the two arbitrators thus appointed agree on the choice of the third arbitrator (or umpire); the arbitral tribunal consequently consists of three (or more) persons, who can decide by majority vote. Of course, the parties can also decide to refer the dispute to a single arbitrator, including to a foreign head of State or government (a practice which is now rare).

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