POLITICAL LAW PRE-BAR LECTURE

By:
CONG. ANTONIO B. NACHURA

INTRODUCTION
The subject matter is Constitutional law, administrative law, public officers, election laws
and the law on local governments. Theoretically class, but the Justice of the SC who chairs the
Bar Examination Committee, will no longer admit it as in the past several years. Theoretically, the
questions in political and public international are allocated in this wise: Constitutional law 1 or
what you call Political Law in your undergraduate years is supposed to be 30%; Constitutional law
2, 30%; Administrative Law 5%; Public Officers, 5%; Election laws, 5%; Local Governments, 5%
and Public International Law, 20%. This is how they allocated the subjects in Political Law before
but because Bar Examiners could not follow instructions, they completely did away with this,
basta bahala nalang. Sometimes you have a lot of questions in Public International law kaya kung
minsan wala nang questions sa Bill of Rights, minsan isa nalang and thats bad because most of
you because most of you have memorized the Bill of Rights, forwards, backwards, sideways
Alright, so we start with the study of Constitutional law of course and in fact, in going
through the constitution, we will impinge on a lot of subjects, since this is review, whenever there
is opportunity to jump into another subject in Political law, we will do so, and whenever there is an
opportunity to show the relationships between Political law and other bar subjects, we will point
that out too. It is in review when you see that the law is really one integrated whole, you see the
relationships between the separate subjects you study and when you see the complete picture,
you see the beauty of law. I hope that is what you see. Most of you dont see that now, you see
only the bar exams and you see La Salle instead of the beauty of law. We will try to point these
out as we go along, so I will leave the reading matter, we will see if we can go back to this if we
have time. Normally, my lectures start with Constitutional history, but very few bar examiners
know history, so nevermind nalang. We go immediately to the Constitution and general principles
governing the Constitution.

GENERAL PRINCIPLES
The Philippine Constitution
First, of course, the date of effectivity of the1987 Constitution, De Leon vs. Esguerra.
February 2, 1987, which was the date of the plebiscite. And so, the principle is, the Constitution
takes effect on the day it was approved or ratified by the people in a plebiscite. Accordingly,
amendments to the Constitution which we will discuss very soon after this. Amendments take
effect on the day there were approved or ratified by the people in the plebiscite. So, on the matter
of general principles governing the Constitution, first perhaps, we should look into the
interpretation of the construction of the Constitution. In a 2003 decision, in the case of Francisco
vs. HRET concerning the controversial impeachment of Chief Justice Davide, the SC had the
occasion to state a number of rules on Constitutional construction, the first of these rules of
course is verba legis. The word of the law. So, if the word is unambiguous, it has to be interpreted
in its ordinary common place meaning and you do not have room for construction. If, however,
there is some ambiguity, then you go to ratio legis anima, the intention of the framers of the
Constitution, the intention behind the adoption of that particular provision. And so, we look at
Civil Liberties Union vs. Exec. Secretary, where the SC said that to understand a constitutional
provision, you should look at the history of the times, the evil that the provision seeks to remedy.
And then after that, if there should be apparently conflicting provisions of the Constitution, the
entire Constitution is to be treated as a whole unlike ordinary rules in statutory construction that
the latter provision is deemed to prevail of the former. In case of conflicting or apparently or
ostensibly conflicting provisions of the Constitution, you are supposed to rationalize, reconcile,
harmonize the whole thing because the Constitution has to be interpreted as a whole. You do not
isolate specific provisions when you interpret the Constitution.
There is just one disturbing thing in the decision, it speaks of ambiguity in the provision.
And the SC says it is of course permissible for us to arrive at the real meaning to go to the
debates, the proceedings of the Constitutional Commission. There is one disturbing statement
there, the SC said, when there is this ambiguity, the safer way is to interpret the provision in the
manner in which it is interpreted by those who ratified the Constitution, rather than in the manner
in which those who framed the Constitution think to be. Alright, these are supposed to be the
rules laid down by the SC in the manner of the interpretation or construction of the Constitution.

Amendment
The next general principle we move on to is the amendment or revision of the
Constitution. Amendment used in its generic sense refers to that change in the Constitution, in its
specific sense, amendment refers to piecemeal changes or changes in particular provisions of the
Constitution, as distinguished from revision which is the complete overhaul of the entire charter.
The Constitution provides the mode for the amendment of the 1987 Constitution although not
literally worded in this manner, the Constitution, such article XVII that there are two steps in the
amendatory process. First, proposal. And second, ratification.
Proposal as the first step in the amendatory process refers to the adoption of the
suggested change in the Constitution. Not just anyone can adopt a suggested change in the
Constitution and so the Constitution itself enumerates the potential source of a valid proposal to
amend the Constitution and these are: first, Congress. Congress by a vote of of all of its
members, may directly propose an amendment to the Constitution. At this stage, class, even the
Constitution itself does not itself state literally when Congress seeks to propose an amendment to
the Constitution, it is supposed to be sitting as a constituent body and therefore performing
constituent powers. This is to differentiate the power of Congress for purposes of amending the
Constitution from the power of Congress found in Art. VI of the Constitution which is the
legislative power. In a little while, we will look at the distinction between constituent and legislative
power as illustrated by the SC in the case of Imbong vs. COMELEC.
For now, let us look at these potential sources of a proposal to amend the Constitution.
vote of Congress to directly propose an amendment to the Constitution. While, there is of course
debate on how the vote is to be interpreted, I think the majority of those who believe and have
studied the Constitution agree that this should be interpreted to mean of the Senate and of
the House of Representatives. Alright, if Congress wishes to propose an amendment directly,
then it has to obtain the vote. If Congress wants somebody else to do the amending, at least
the adoption of the proposed amendments for the Congress, Congress may call a constitutional
convention into existence. As you will note, a con-con does not exist under the Constitution. It has
to be called into existence and the only institution that can call it into existence or at least initiate
its calling into existence is Congress. And so, in Occena vs. COMELEC, the SC said that
Congress is vested with the discretionary authority either to directly propose amendments to the
Constitution or to call a constitutional convention for the purpose of proposing amendments to the
Constitution or not to propose amendments at all. So, the discretionary authority is vested in
Congress. And, you know very well when the Constitution vests discretionary authority in an
officer, agent or institution, normally, the exercise of such discretionary authority partakes of the
character of a political question subject to certain exceptions. Alright, so the Constitution says a
constitutional convention can be called into existence by a vote of 2/3 of all of the members of
Congress provided however that if the 2/3 vote is not obtained, Congress may still initiate the
calling of a constitutional convention by a majority vote provided that the question of whether or
not a constitutional convention may be called into existence shall be submitted to the people in a
plebiscite.
This morning, on board the plane from Dumaguete. I came back from Dumaguete only
this morning. I lectured at Silliman University, Saturday and Sunday, that is the reason for my
voice, I lectured for 16 hours there and then I stayed in a hotel that has a no-smoking, no-liquor
hotel, pinahirapan na ako dun sa lecture, pinahirapan pa ako dun sa hotel. I saw, in the papers
that Congressman Gilbert Teodoro of Tarlac who is a very good lawyer, who is a bar-topnotcher,
he placed number 1 in the bar exams when he took the exams, suggested that in the matter of
cha-cha, in the matter of charter change, we should perhaps first submit this matter to the people
in a referendum to see if the people want charter change. I am sorry I do not agree. You see, if
the framers of the Constitution wanted this as an initial step towards constitutional change, the
Constitution should have provided so. The Constitution provides that it is Congress. Congress
should not abdicate its duty to propose amendments directly or call a con-con for the purpose. If
the Congress feels that the time is right for the constitutional change. Congress should not
consult the people again. They were elected by the people, when the people elected the
members of Congress, the people were supposed to know that they were electing potential
constitutional changes because the Constitution says that the Congress can directly propose
amendments to the Constitution. After all, the people will be consulted in the ultimate analysis it is
the people who will decide on whether or not the amendments are to be approved
Now, a third, the Constitution actually speaks of a third possible source of a proposed
amendment and that is the people themselves through the exercise by the people of the power
known as initiative. Unfortunately, because of the SC ruling in Miriam Defensor-Santiago vs.
COMELEC, a peoples initiative cannot succeed today. It cannot be done today because of the
inadequacy of the law passed by Congress for a peoples initiative on the Constitution. And so,

even as we will talk about this, let us just go back to the two potential sources of a proposed
amendment to the Constitution.
Constitutional Convention
A con-con. There are only two things that you should remember about a constitutional
convention, other than the constitutional provision on how it may be called into existence. First,
on the question of the status of a constitutional convention, the status of a constitutional
convention vis--vis the three branches of government. There are three schools of thought on
the matter. The two of course are of Anglo-Saxon and Anglo-American origin. The first speaks
of the theory of the conventional sovereignty which says that a constitutional convention because
it performs powers attributable to the people is superior to the legislative, executive and judicial
departments. The second school of thought is the opposite of that. The second school of thought
says a constitutional convention because it is merely a creation of Congress is subordinate to the
three branches of government. The third school of thought which is adopted by our jurisdiction by
virtue of the ruling of the SC in Mabanag vs. Lopez-Vito says that once a constitutional
convention shall have been validly called into existence and when it performs powers within its
authority then a con-con is co-equal to and independent of Congress, independent of the
President, independent of the court, it is co-equal to each of the three branches of the
government.
The second thing that you should remember is a constitutional convention is ordinarily
called into existence in order to revise the Constitution. Revision instead of simple amendment.
You do not call a con-con, elect delegates all over the country only for the purpose of changing
Sec. 3 of Art. II to erase the second sentence there on the Armed Forces of the Philippines as
protector of the State and of the people. You do not do that, you call a con-con to revise the
Constitution. And so, if you call a constitutional convention to revise a Constitution, you should
look at Tolentino vs. COMELEC where the SC said that a con-con cannot submit for ratification
individual amendments. It has to be the entire package of the whole amendments or not at all
because it is tasked to revise the entire charter then it should revise the charter and submit the
entire revision for ratification not individual or piecemeal amendments.
Initiative
Alright, now the people through initiative. Republic Act No. 6735 was passed by
Congress in response to the mandate in the Constitution that Congress should enact as soon as
possible a law instituting a system of initiative and referendum. That is found in Sec. 32, of Art. VI
of the Constitution. So, Congress passed RA 6735, in RA6735, an initiative is defined as the
power of the people to propose amendments to the Constitution and to propose and enact
national or local legislation through an election called for the purpose. From the definition found in
RA 6735, we are at once informed that there are three forms of initiative. An initiative on the
Constitution, an initiative on national legislation and an initiative on local legislation. The initiative
on the Constitution should have been governed by RA 6735 and the Constitution of course on
national legislation, by Sec. 1 and 32 of Art. VI and by RA 6735 and the initiative on local
legislation by RA 6735 and by the local government code. Alright, today we confine ourselves with
the initiative on the Constitution. What does the Constitution provide? The people through an
initiative may directly propose an amendment to the Constitution through a petition that is to be
signed by at least 12% by all the registered voters in the country provided that each legislative
district is represented in the petition by the signature of at least 3% of all the registered voters in
each legislative district. This petition is supposed to be submitted to the COMELEC and it
becomes the duty of the COMELEC to verify the authenticity and the due execution of the
petition. Verify the authenticity of the signatures and to determine whether or not the 12%, 3%
requirements have been met. Where the COMELEC is satisfied, then the COMELEC issues a
certification to that effect. The date of the plebiscite is dependent on the date of the certification
issued by the COMELEC.
Alright, the Constitution also provides two basic limitations for the peoples exercise of the
power of initiative, the first is that the people cannot exercise the power of initiative on the
Constitution within 5 years from the ratification of the Constitution. But, more than five years had
already lapsed so wala na yon. The other one is a limitation on the frequency of proposed
amendments coming from the people. Peoples initiative for amendment cannot be made more
often than once every five years. So, tapos na tayo sana dyan, ok na sana, the people could
really have exercised this power, except in the case of Miriam Santiago vs. COMELEC, the SC
said, RA 6735, while it is valid, sufficient and adequate for purposes for initiative on national and
local legislation, is insufficient for an initiative on the Constitution. The SC said it does not even
contain a title or a chapter on initiative on the Constitution. It does not even contain a provision
setting forth the contents of the petition that will be filed for an initiative on the Constitution.

Accordingly, the SC said, RA 6735 is inadequate, it is insufficient. If the enabling law is insufficient
therefore the people cannot exercise the power of initiative. What happened here class and I
would like you to look at this because there is also an element of remedial law principles involved.
Delfin, et. al. filed a petition with the COMELEC asking the COMELEC for authority to gather
signatures for a peoples initiative. Wala pa silang petition na nilagay, wala pang peititon for
amendment, they merely asked for authority to be able to go on a signature campaign, not unlike
the signature campaign they did before somebody was prevailed upon to run for President. So,
ganyan, Raul Roco, Senator of the Republic of the Philippines filed an opposition asking the
COMELEC to dismiss the Delfin petition on grounds of jurisdiction that it is not within the
jurisdiction of the COMELEC to grant authority to go on some kind of signature campaign. The
COMELEC denied the Roco opposition and then Miriam Defensor-Santiago went to the SC
asking the SC to order the dismissal of the Delfin petition. The correct procedure it would seem
would have been for Roco after the denial of his opposition or which partook of the character of a
motion to dismiss, Roco could have gone to the SC for a petition for certiorari , pero ito, si Miriam
ang pumunta sa SC, hindi sya party rito. May pagkapakialamera lang talaga yan si Miriam ano.
Yun, and even procedurally, that question was raised but the SC knew that if it will not decide the
Miriam Defensor-Santiago petition, ganon din, this case would still go up to them anyway so the
SC took cognizance of the case and said the Miriam Defensor-Santiago petition may be treated
as a petition for certiorari given the denial of the Roco opposition at this point. In other words,
Miriam took the cudgels from Roco and was the one who went up to the SC. In any event, the SC
said the intention of Delfin, et. al. was precisely to initiate the peoples initiative on the
Constitution but RA 6735 is inadequate, therefore, wala. Besides, the SC said, this is not a proper
petition because the petition itself seeking amendment should be signed by 12% and 3%. And so,
what happened? After the Miriam Defensor-Santiago petition was decided by the SC, the group of
Delfin and others went to the various congressional districts and solicited signatures and came
back to the COMELEC this time, they called themselves PIRMA. Armed with signatures already,
a petition seeking the amendment of Art. VII on the term of office of the President and the ban
against re-election. Yun na ang kanilang petition. Then, PIRMA filed this with the COMELEC,
asking this time the COMELEC to verify the signatures and determine if the 12%, 3%
requirements have been complied with. By virtue of the Miriam Santiago decision, the COMELEC
dismissed the PIRMA petition. PIRMA went up to the SC. The SC reiterated its ruling in the
Miriam Defensor-Santiago saying RA 6735 is inadequate, it cannot be used, therefore, we have
no enabling law for purposes of an initiative on the Constitution. Even as this was decided in 1997
class, up to now, unfortunately, Congress has not seen fit to amend RA 6735. And so, up to now,
seven years have already elapsed, RA 6735 remains inadequate, insufficient for purposes of an
initiative on the Constitution. So this, vote in peoples right granted to them under the Constitution
is illusory and it cannot really be exercised.
Alright, then if there is a valid proposal coming from Congress or from a con-con or at the
right time where RA 6735 shall have been amended and made adequate through a peoples
initiative then the proposed amendment shall become part of the Constitution once approved by a
majority of the votes cast in the plebiscite that is to be held not earlier than 60 days not later than
90 days from the approval of the proposal by Congress, if it is a congressional proposal. From the
approval of the proposal of the constitutional convention, if it is a proposal coming from the concon. Or, the 60-90 day period shall be counted from the day the COMELEC issues a certification
that the petition is sufficient in form and in substance for a peoples initiative.
Doctrine of Proper Submission
And so, when you find in all law books what the SC calls the doctrine of proper
submission, the SC invariably made reference to the many cases when what was in issue
basically was whether or not the people were given enough time to mull on the merits and the
demerits of the proposal. Because, in the past, we have had plebiscites held two weeks barely
from the time the proposed amendment was approved. Now that we have in the Constitution a
specific time frame within which to hold the plebiscite, we are saved a lack of reading. Be that as
it may, part of the doctrine of proper submission, and this I would like you to remember, is the
ruling of the SC in the case of Gonzales vs. COMELEC, Gonzales vs. COMELEC is authority to
the principle that a plebiscite may be held simultaneously with local or national elections. That is
still valid case law today. Second, Tolentino vs. COMELEC, which we already mentioned.
Tolentino vs. COMELEC, which is authority to the principle that when a constitutional convention
is called into existence for the purpose of revising the constitution, the con-con cannot submit for
ratification, piecemeal amendments to the Constitution. The SC in Tolentino said, well, first, the
old Constitution spoke of only one election, election in the singular. And so, the SC, that means
the con-con should submit this for ratification in only one electoral exercise. More importantly
however, the SC also said, the people would not have a proper frame of reference, if they are
made to vote on a piecemeal. On piecemeal provisions or piecemeal amendments, since they do
not know what the rest of the amendments will be, they will not be able to really determine
whether this piecemeal suggested amendment is meritorious because they would not know what

the other parts of the Constitution will be. The people will be denied a proper frame of reference
according to the SC.
Alright, class, when Congress proposes an amendment or calls a con-con into existence,
when a con-con shall have been called into existence and the con-con proposes debates and
proposes amendments to the Constitution or when the people in the exercise of the power of
intitiative propse an amendment to the Constitution or when the entire electorate vote in a
plebiscite for or against a proposed amendment, Congress, the con-con and the people will
actually perform constituent, not legislative powers. And so, we look at the distinction between the
constituent and the legislative power in particular relation to Congress because Congress has, as
it were, dual functionsconstituent and legislative, at least for this purpose. Congress has other
functions.
Alright, the case of Imbong vs. COMELEC. Class, in 1967, there was perceived by the
leaders of government the growth of seeds of activism as students went to the streets and every
now and then would hold rallies, many of them rallies at Plaza Miranda. Congress as the policymaking body of government thought it wise to diver this activism of our people and the diversion
that Congress thought of was to call a constitutional convention to amend the Constitution. Ganito
ang sinasabi ng mga members of Congress, we should amend the Constitution because this
Constitution has vestiges of colonialism. Those of you who remember your history will remember
that the 1935 Constitution was sent to the US for approval by the President of the United States
before it could be implemented in the Philippines and so, that only showed we were really
following the United States dictates, which is not to say that we are not doing the same thing now.
Alright, so Congress convened in joint session as a constituent assembly and passed three
resolutions of both houses. One, two and three. One, was a direct proposal to amend the
Constitution, only one provision on the composition of the House of Representatives because
under the 1935 Constitution, the House of Representatives was limited to 120 members. RBH 2
would increase from 120 to 180 members of the House of Representatives. RBH 2 would call a
con-con into existence to revise the Constitution. RBH 3 was an amendment to the article on the
legislative body which would have allowed members of Congress to run or con-con without
forfeiting their seats in Congress.
Okay, in the elections in 1967, in November 1967, RHB 1 and RBH 2 were submitted to a
plebiscite. The people voted no to both RBH 1 and RBH 3. Because of this, lalo na ang rejection
ng RBH 3, nawalan ng Congreso, di din naman pala tayo pwede dun, ayaw ng tao, edi pabayaan
na rin natin yang tarantadong yan, bahala na sila. So, yun. Wala na silang ginawa until 1969. In
1969, the seeds of activism perceived in 1987 had grown into full bloom. Araw-araw na halos may
rally. Araw-araw may martsa, etc. Preparatory to the first quarter storm, wala, I see that most of
you here are very young, you will not remember that, some of you were not even born yet in
1969. O, I am looking around to see if I can find at least some who may have been alive already
at that time. Ah, some may even have voted for Magsaysay or .. ayan ano.
Alright, and so, nataranta nanaman ang Congreso, nataranta nanaman. Ipagpatuloy natin
ang con-con, yung amendment ng Constitution, this is a good diversion. Kaya, in 1969, Congress
again sat as a constituent assembly and passed Resolution of Both Houses #4, reiterating a call
for a constitutional convention providing certain other details and providing that for purposes of
the election of delegates to the constitutional convention details shall be placed in a law to be
passed by Congress. The following year, Congress passed RA 6132 otherwise known as the
Constitutional Convention Act of 1970. RA 6132 providing for the number of delegates from each
congressional district, providing for the manner of election, providing for certain rules governing
the election. It was in this election for delegates of the constitutional convention that the law came
in with restrictions on the size of the propaganda materials on the material itself to be used for the
propaganda on the places where the propaganda
Imbong and one other petitioner went to court to stop the election of delegates to the
Constitutional Convention which was to be held in November of 1970. Let us use the same
figures here because in the 1935 Constitution it was also to call a convention. Alright, this is the
position of Imbong, Republic Act 6132, the enabling law for the election of delegates to the
Constitutional Convention is unconstitutional. Why? Because it has to do with the calling of a
Constitutional Convention and it was not approved by the required vote. It was approved as an
ordinary piece of legislation. Therefore, not having been approved with the required vote under
the Constitution, the law is unconstitutional and therefore the election to be held pursuant to that
law would be invalid. The Supreme Court dismissed the Imbong petition and said RA 6132 is
constitutional. The SC distinguished a constituent power from a legislative power and said when
Congress passed RBH 2 and RBH 4, Congress performed constituent power. When it passed RA
6132, it performed simply legislative power. The SC then went on to say after Congress shall
have performed its constituent power as in the adoption of RBH 2 and RBH 4, it can, by simply
exercising legislative power provide the details for the implementation of the resolutions that it

had passed in the exercise of constituent powers. In passing, the SC noted that the legislative
power is the power to propose, enact, amend and repeal laws. The constituent power on the
other hand refers to the power of the people to propose amendments to the constitution or to
effect permanent changes in the political structure of the government. Clearly from the discussion
in Imbong, it is the constituent power that is the greater power because it is the power that is
directly attributable to the people. And so, the SC said RA 6132 was a valid piece of legislation
because Congress may, by merely exercising legislative powers, provide the details for the
implementation of these resolutions that it had passed in the exercise of constituent powers.
The elections were held in November 1970, the Constitutional Convention met in historic
ceremonies at the Manila hotel for the first time on June 1, 1971. It worked from June 1 In
October, after nearly four months of work, the Constitutional Convention of 1971 had passed only
one resolution. The resolution reducing the voting age from 21 to 18. And so, a number of
delegates felt that the people would be disappointed or disenchanted from the convention. In
order again to try to assuage this disenchantment, they decided to submit that one resolution to
the COMELEC so that a plebiscite could be held on that one resolution. When they did that,
Tolentino went to court and that is what Tolentino vs. COMELEC is all about. Tolentino went to
court and said, NO, a con-con should not be allowed to submit piecemeal amendments for
ratification, and the SC agreed. And so, they could not submit that and they went to work again
and the following year, they went to work for the entire year until September when Pres. Marcos
declared Martial Law. What they could not finish in 18 months, they finished in two months under
Martial Law. November natapos nila. But that is another story, yung ratification ng 1973
Constitution, you should not clutter your minds with that.
Whether or not Proposal or Submission for Ratification is a Political or Justiciable
Question
Anyway, the only other thing that we should perhaps remember in connection in
amendment and revision is the question whether or not the matter of proposal or the submission
for ratification is a justiciable or a political question. From 1973, the case of Javellana vs. Exec.
Secretary and consistently up to now, the SC has ruled that a question as to the validity of the
proposal or the validity of the submission for ratification is a justiciable and not a political
question. Invariably, the issue will boil down to whether or not the constitutional provisions have
been complied with. And when that question arises, the question is justiciable and not political.
So, that takes care of Art. 17 of the Constitution.
Because of the on-going public debate and the controversy that has to do with the chacha, mode of amendment, etc. It is possible that your bar examiner might ask you a question on
amendment. Although, I think siguro naman ang itatanong Constitutional provisions lang. Dun sa
iba, itong mga parliamentary, Presidential, mga federal, baka naman mayron ding itanong dyan
don sa mga forms of government, etc. Just be prepared, we will take those up anyway as we go
along.
The Power of Judicial Review
Alright, we continue with general principles governing the Constitution and something, a
principle that we will meet at almost every point in the Constitution, the matter of judicial review.
Or the matter of judicial inquiry. Judicial review is the power of the courts to determine the validity
of government acts in light of their conformity with the Constitution. There is no necessity for any
Constitutional ground to the courts of this power because this flows from the Republican
Principle of Separation of Powers. Be that as it may, we have provisions in the Constitution
which support precisely the exercise of this power and even in largest the original concept of the
judicial power of judicial review. Under the 1935 Constitution, it was very clear that whenever the
Constitution vests full discretionary authority on the President or on Congress, such discretion
when exercised could not be reviewed by the courts because the exercise of those discretionary
powers would be in the nature of political questions. However, today, if you look at the 2nd
paragragh of Sec. 1 of Art. VIII of the definition of the judicial power and focus on the second
clause, you will notice that the Constitution today has even enlarged the power of the judiciary in
the exercise of the power of judicial review as it may now look into or determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction committed
by an agency or instrumentality of government.
Alright, we said earlier that this flows from the republican principle of separation of
powers and indeed, it is the courts that must make a determination on whether or not a power
granted under the Constitution or flowing from such ground has been validly exercised. Now, on
the issue perhaps of which courts have jurisdiction to entertain cases for judicial review. The
Constitution, in Sec. 4, par. 2, when it speaks of cases that are to be decided by the Supreme
Court en banc, speaks of constitutional issues. Can a lower court exercise the power of judicial

review? Yes. Because, if you look at Sec. 5, par. 2 of Art. VIII on the Constitutional appellate
jurisdiction of the SC, among the issues to be raised to the SC on appeal precisely are issues or
cases involving the constitutionality of laws, treaties, decrees, etc. That means, that if it is on
appeal to the SC, it has already been taken cognizance of in a lower court. In any event, I would
like to mention Mirasol vs. CA, where the SC clearly stated that even under BP 129, a Regional
Trial Court may properly rule on a question involving constitutionality provided only, according to
the SC, that under the rules, the Solicitor-General has to be notified. The Solicitor-General has to
be notified because the Solicitor-General is supposed to be the lawyer of the government and
necessarily, if you attack an act of government, an act of the legislative or the executive
department, the government may feel called upon to defend the governmental act. And so, the
SC said, notice to the Solicitor-General is imperative so that the Solicitor-General may be able to
decide whether or not he should intervene. Failure to notify the Solicitor-General is tantamount to
not giving him his day in court, not giving the government its day in court for that matter, because
your Solicitor-General is the lawyer of government.
Requisites of Judicial Review
Alright, memorize the requisites of judicial review. Be sure you are able to explain each
even briefly in your own words or if not, in the words of the Supreme Court, better if in the words
of the Supreme Court. Alright, so what are the four requisites of judicial review. One, there must
be an actual case or controversy. Two, the constitutional question must be raised by the
proper party. Three, the question must be raised at the earliest possible opportunity. And
four, the resolution by a constitutional question must be determined at the case itself.
What are we talking about here? We are talking about a case pending in court where an
issue on the constitutionality of the law or on the constitutionality of a governmental act, an act of
the executive department is being questioned. Only then may the court exercise the power of
judicial review. When the court decides cases without issues of constitutional dimension, the court
does not exercise the power of judicial review. The power of judicial review is exercised only in
cases where there are questions relating to the constitutionality of the challenged legislative or
executive act. And so, in many cases you will perhaps read in decisions, in books and read the
phrase not ripe for judicial review. Because, either there is no constitutional question or there is
no actual case or there is something lacking in one of the four requisites. I know that may not be
necessary for most of you but just to put me at ease.
So, what is an actual case or controversy? A conflict of legal rights opposing legal
claims susceptible of judicial determination. There must therefore be one party against another
each claiming rights or demanding obligations to be performed and the other one resisting the
demand or demanding in turn, something for himself. So, that is your actual case or controversy.
Now, from your mastery of remedial law, you know very well that an action for declaratory relief
poses an actual case or controversy. I remember nung nagtuturo pa ako sa undergraduate, ang
kine-question ko halimbawa, in a land registration proceeding, will a land registration proceeding
give rise to an actual case or controversy? Will a petition for naturalization give rise to an actual
case or controversy? Alright, anyway, there should be an actual case where there are rights
asserted or obligations or duties demanded. So, yun. It is necessary that the case must not pose
issues that are moot and academic because if they are moot and academic, then there is no
actual case or controversy. In much the same manner that a request merely for the opinion of the
court will not give rise to an actual case or controversy. So, as a rule, when a case is filed in court
and the issues are real and actual but later, the issues become academic, then the court will
dismiss the action because there is no longer an actual case or controversy. There is a relatively
hindi na bagong case, the case of Fernandez vs. Torres that I would like to talk about even as
we have a number of newer cases. The case of Fernandez vs. Torres, Ruben Torres was then
Labor Secretary. He issued a memorandum circular temporarily prohibiting the deployment of
female entertainers abroad who were below 23 years of age. No Filipino female entertainer below
23 shall be allowed to leave the Philippines even if she has existing contracts to perform abroad.
The memorandum circular contained a provision that went this way, in meritorious cases
however, the Secretary of Labor may grant an exemptions. A number of Filipino female
entertainers who had contracts to perform abroad went to the SC, challenged the constitutionality
of the Torres memorandum circular claiming that it was unconstitutional four times over. It
deprived them of property without due process of law. Dahil ito may contrata na may kita na, hindi
kami papupuntahin sabi nila. It violated the equal protection clause, according to them because it
was arbitrary for the Secretary of Labor to say 23 years of age, eh bakit hindi 18, bakit hindi 25?
Then of course, the claimed that the memorandum circular violated or impaired obligations and
contracts. Unfortunately for the Filipino female entertainers, the SC dismissed the action. The SC
said the case was filed prematurely. No actual case or controversy. The SC said, the complaint or
the petition did not even contain an allegation to the effect that the petitioners had applied for
exemption and were denied such exemption. Even only an allegation to the effect that it would
have been unnecessary it would have been futile for them to apply for exemption because after

all, all applications for exemption were invariably denied by the Secretary of Labor. The SC said,
absence of such allegation, the case has been prematurely filed and so, dismissed.
I purposely mentioned Fernandez because I also want to jump to administrative law,
since you have mastered administrative law already. Okay, what particular principle in
administrative law would apply in this case against Fernandez, the petitioners. The doctrine of
exhaustion of administrative remedies. Apparently, there was an available administrative
remedy. A request for exemption which they did not at all exhaust. More importantly, for my
purposes, you will remember from your administrative law that when a case filed in court is
dismissed for failure to exhaust administrative remedies, what is the official legal basis for such
dismissal? Lack of cause of action. So, no cause of action, no case or controversy whether from
the administrative law point of view or from this restricted judicial review point of view. It would
appear then that the petition filed by Fernandez had really be to be dismissed. No actual case,
premature, or no cause of action for failing to exhaust administrative remedies.
Yung mga nagiging initially magandang issue, pagkatapos nagiging academic. Lacson
vs. Perez. Ping Lacson went to court to challenge the constitutionality of the declaration of the
proclamation issued by Pres. GMA declaring a state of rebellion. When the case was being
heard, GMA had already withdrawn the proclamation. Tapos na, wala na, ano pa Gonzalez vs.
Narvasa, Ramon Gonzalez, may he rest in peace, he was a pesky and really very, very active
lawyer. Ramon Gonzales went to court to challenge the constitution of a preparatory commission
on constitutional reform which was organized then by President Joseph Estrada, naming former
Chief Justice Narvaza as chairman, but when the case was being heard, the PCCR had already
finished its work, sinumbit na, nawala na, tapos na. Alright, so, then the case had become moot
and academic. However, class, even if the case has been moot and academic, it is possible that
the court may continue to take cognizance of the case and decide the case when the court feels
called upon to exercise its symbolic function. Symbolic function as held in the case of Salonga
vs. Pao. What happened in Salonga vs. Pao? Towards the later part of the Marcos years, an
American citizen of Filipino parentage came to Manila. A fellow named Victor Ludley arrived from
the US, he stayed at the old YMCA dormitory at the back of the city of hall of Manila. He tinkered
with the home-made bomb inside his room at the YMCA. The bomb exploded in his face. He lost
one eye, lost one arm, lost hearing on both ears, fortunately, he survived. However, unfortunately,
he was arrested. When his personal belongings were taken and searched, the authorities found a
picture taken abroad, perhaps many years ago, where Victor Ludley was standing beside Jovito
Salonga. Obviously, apparently on the basis of this picture, two criminal informations were filed
against Salonga in the RTC of Quezon City. Salonga went directly to the SC, asking the SC to
order the dismissal of the two criminal cases. Constitutional grounds, he was not even informed,
no preliminary investigation, no nothing. Remember, Salonga was an art critic of Marcos. So,
Salonga himself argued his case before the SC, and as you very well know, as provided under
the Constitution, the SC is supposed to vote consultation muna before assigning the case to a
justice who will write the decision. So, voting, the majority of the members of the Supreme Court
voted to grant the petition of Salonga. That same afternoon, Marcos learned of this, so he felt
that his regime was getting a lot of adverse decisions of the SC, it was bad for him kung matatalo
nanaman. He called his very bright boys, his Secretary of Justice, his Solicitor-General Estellito
Mendoza, he had a Manuel Lazaro in Malacaang, tinawag nya yon, sina Catalino Macaraig was
undersecretary of Justice, tinawag nya lahat. And so, after conferring, they decided, o, Secretary
of Justice, you tell your City Fiscal in Quezon City, ipa-dismiss nalang yan kaagad pagkatapos
sabihin natin sa Supreme Court tutal di pa naman nakakagawa ng SC ang decision, ira-route pa
yon, pipirmahan pa, sabihin natin sa SC, o wala na, ano pang idi-dismiss nyo. So, thats what
they did, the following day, the City Fiscal of Quezon City, someone named Sergio Apostol filed
motions to dismiss the pending criminal information. Then, the Court dismissed and they
prepared the order of dismissal of the cases, o ayos. So, in two days time, the Solicitor-General
filed a manifestation and motion with the Supreme Court manifesting that the cases subject of the
Salonga petition had already been dismissed by the RTC, and that therefore in view of such
dismissal, we hereby move that the petition of Salonga be dismissed. Why, because what was he
asking for? He was asking for the dismissal of the cases in the RTC. The cases had already been
dismissed. The Salonga petition had already become academic. The SC refused to dismiss the
case. The SC invoked its symbolic function. The SC said it has a symbolic function of educating
the bench and the bar on the extent of the protection and enforcement of constitutional rights.
There had been a number of cases after that na kamukha nung Javier. Evelio Javier ran
in 1984 for the Batasang Pambansa. He lost to Pacificador. Javier filed a protest with the
COMELEC. COMELEC dismissed his protest. Javier went up to the SC. In 1986, Javier actively
campaigned for Cory Aquino in the snap elections. He was killed in 1986. After that, Cory Aquino
dissolved the Batasang Pambansa. So naroon pa ang case ni Javier. What was the prayer of
Javier? He prayed that the proclamation of Pacificador be annulled, that he be the one
proclaimed as the member of the Batasang Pambansa. First, there was no more Javier. Second,
there was no more Batasang Pambansa, so there was really nothing more to decide. The issue

had become moot and academic. Again, the SC refused to dismiss the case. It was Justice
Isagani Cruz who penned the decision in the Javier vs. COMELEC case. So, ganon lang. Alright,
so, the important thing to remember is this, actual case or controversy, there being a real conflict.
But when the issues become moot and academic, then as a rule, the case will be dismissed,
except when the court feels called upon to exercise its symbolic function.
The second requisite is that the constitutional question must be raised by the proper
party. A proper party is defined as one who has sustained or is in imminent danger of sustaining
injury from the act complained of. Alright, perhaps, isa na lang. Masyadong maraming cases dito
eh. Joya vs. PCGG. After EDSA 1, PCGG was organized by Cory Aquino, PCGG confiscated all
of these paintings of masters, masterpieces, mga kung ano sa Malacaang and in several other
places. As the years went on, the PCGG thought that it could not continue holding on to this, so it
decided to sell these masterpieces at public auction. Joya and a number of other artists, Joya
being a national artist himself, went to court to stop the sale at public auction of the masterpieces.
The SC simply said, Joya did not claim to be the owner. He has not shown that he has sustained
an injury, nor will he sustain an injury from the sale of the masterpieces. So, the case was
dismissed.
Three Basic Principles Related to PROPER PARTY
Alright, however class, siguro let me just call your attention to 3 basic principles in
relation to proper party. One, Kilosbayan vs. Guingona. In Kilosbayan vs. Guingona, the SC
said, the proper party requirement is merely a procedural technicality which the court may brush
aside when the issues raised in the case are of paramount or of transcendental importance. This
gives us an idea right away that this is a procedural technicality which is not mandatory therefore
because when the issues raised are of such grave importance then the court can set this aside
and entertain the case even if the party raising the issue of constitutionality has not sustained nor
will he sustain an injury from the act complained of. In Kilosbayan vs. Guingona, ano nangyari
dito? The government decided policy-wise to operate lotto in the Philippines after government
lawyers saw the Philippine Charity Sweepstakes charter as the possible legal basis for operating
lotto. Unfortunately, nobody in PCSO or anywhere else in the Philippines knew or had the
facilities, the equipment to operate lotto in the country. So, they decided to bid this out to foreign
enteprises that had the capability and the know-how to operate lotto. Bidding, tapos na. Nanalo
na, may declared winner na sa bidding. May award na, mag-eenter nalang into a contract. The
contract was being prepared. Kilosbayan went to court to stop the execution of the contract. One
of the issues raised was precisely, Kilosbayan is not a proper party. What is Kilosbayan?
Kilosbayan is a loose, esoteric group of individuals. Of course, the main man there is Jovito
Salonga, but you have a lot of people there, you have a lot of former Congressment, former
Senators, former government officials, you have a lot of lawyers, businessmen, but you also have
a lot of charlatans and pakialameros. Its really an esoteric group. So, Kilosbayan could not show
that it sustained or any of its members personally sustaining an injury from this award of lotto
operations. So, anong sabi ng SC, nonetheless because of the transcendental importance, the
paramount importance of the issues involved, we are going to take cognizance of the case. We
are going to close our eyes to the lack of proper party/personality. We brush aside this
requirement. We decide. And the SC decided in favor of Kilosbayan. And voided the contract. So,
what did PCSO do? PCSO decided in turn, kung hindi naman, that means kami pa rin ang magooperate ng lotto, PCSO, pero we will lease the equipment from this bidder who won the bidding.
Sila ang may equipment, and so they entered into an equipment lease agreement. Again,
Kilosbayan went to court to stop the equipment lease agreement. This time, the SC said,
Kilosbayan is not a proper party. No present substantial interest in the subject matter of the
action. Therefore, the case filed by Kilosbayan was dismissed.
More recently of course, you have the case of Frank Chavez vs. Public Estates
Authority and Amari. Frank Chavez went to court, asking, invoking constitutional rights muna.
Una, right to information as citizen, right to information as to matters of public concern. And then
he was questioning the acquisition by the Amari of lands and therefore raised the question of the
constitutional mandate on equitable distribution of alienable lands of the public domain to Filipino
citizens. Yet, he himself personally could not show that he was injured, that he sustained an injury
or was in imminent danger of sustaining injury from Amaris acquisition of these properties. The
SC said because of the importance of the issues involved, we are allowing Frank Chavez to sue
as a taxpayer. We are allowing this taxpayers suit. And so the SC decided in favor of Frank
Chavez and voided the transaction which would have in effect given Amari a not necessarily title,
but virtual rights of ownership over alienable lands of the public domain.
Alright, the second point is precisely that. Taxpayers suit. In this case, the taxpayers
suit of Frank Chavez was allowed. The rule is, a taxpayer will always be a proper party to contest
the constitutionality of a tax law that imposes a tax on him because he is definitely injured by such
a tax law. Or as taxpayer he is a proper party to contest the constitutionality of any expenditure of

public funds where it is claimed that the expenditure is irregular, anomalous, extravagant,
improvident, corrupt or whatever. Why? Because as taxpayer, his taxes may form part of that
irregular or extravagant or anomalous expenditure. Therefore, he sustains an injury.
Third point, class. People vs. Vera. Government is always a proper party. The
Government itself is always a proper party because government more than anyone else, has an
interest in the validity of its own laws. So, all your cases here on proper party should take into
account these principles. Marami na kasi masyadong cases eh. In Bagatsing vs. Committee
on Privatization, for example, Bagatsing, and one other member of the House of
Representatives went to the Supreme Court to contest the sale of said Petron shares to Aranco.
On the issue of whether Bagatsing was a proper party, the SC said in his capacity of the
members of the House of Representatives, he is not a proper party. However, as taxpayer, he is a
proper party.
In the case of Ople vs. Torres, contesting the administrative order issued by President
Ramos for the National Computerized ID reference system, the SC upheld the proper party
personality of Senator Ople then because as Senator, he claimed that President Ramos by
issuing the administrative order encroached upon a legislative prerogative, that such a system
should have been set up through a law and not through an administrative order and so, in that
sense, he sustained an injury.
On the other hand, Integrated Bar of the Philippines vs. Zamora, during the
presidency of President Erap Estrada, there were some bombing incidents and so, Pres. Estrada
asked the Marines to augment the police, even augment security in shopping malls, sa shopping
malls non may mga marines na nagbabantay at sila ang nagche-check ng bag, etc. The
Integrated Bar of the Philippines went to court on this questioning the constitutionality of the
augmentation by the Marines. The SC dismissed the case and said the Integrated Bar of the
Philippine is not a proper party, not even the lawyers.
In Telecommunications and Broadcast Attorneys of the Philippines vs. COMELEC
where lawyers of television and radio stations went to court to contest the constitutionality of that
provision in the Omnibus Election Code that authorized the COMELEC to ask for free block time
on radio and television. The SC said the lawyers are not proper parties. There is no allegation
here that because the COMELEC is getting block time from your radio station you will be
dismissed as lawyer. However, the case was eventually decided on the merits because one of the
petitioners, there were other petitioners who were television stations, radio stations and therefore
they were really proper parties.
Okay, so, the next requisite is that the constitutional question should be raised at the
earliest possible opportunity. The earliest possible opportunity is in the pleadings. Where the
question is not raised in the pleadings then it cannot be raised during their trial and not on appeal.
The case of Umali vs. Guingona where the question of constitutionality was raised for the first
time in a motion for reconsideration. The SC said, too late in the day to raise the question during
the motion for reconsideration. However, note that we have three exceptions. One, in criminal
cases. In criminal cases, the question of constitutionality may be raised at any stage of the
proceedings at the discretion of the court. Two, in civil cases it may be raised at any stage of the
proceedings when necessary for the final determination of the action. And three, in civil or
criminal cases, it may be raised at any stage of the proceedings if it concerns the jurisdiction of
the court unless, estoppel has already set in.
Finally, the fourth requisite is that the resolution of the constitutional question must
be determined in the case itself. This simply says that if the court can decide the case on some
other ground using some other reason, then it will avoid ruling on the constitutional question. This
is based on considerations of comity because the courts loathe to interfere an action of a coequal branch of government. Tarosa vs. Singson. In Tarosa vs. Singson, a private citizen went
to court to challenge the validity of the appointment of Governor Gabriel Singson of Bangko
Sentral. The challenge was premised on the fact that the new law on the Bangko Sentral provided
among others that the governor of the Bangko Sentral shall be appointed by the President with
the consent of the Commission on Appointments. Everyone knew that Gabriel Singsons
appointment was not passed upon by the Commission on Appointments. And so, this case,
Singson in his answer said that provision in the law is unconstitutional. Because as held in the
case of Sarmiento vs. Mison, only four classes of appointments made by the President are
subject to confirmation by the Commission of Appointments namely the heads of the Executive
Departments, Ambassadors or other public ministers or consuls, officers of the Armed Forces of
the Philippines from the rank of colonel or naval captain and officers whose appointments are
vested in the President under the Constitution. So yun lang apat. His appointment therefore not
being one of the four, then, that provision should be declared unconstitutional. So, it was Gabriel
Singson who challenged the constitutionality of that provision in the law. The SC however did not

10

find it necessary to rule on the constitutional question. In the law on public officers, when a
person challenges the constitutionality of the validity of an appointment, the challenge should be
made in a quo warranto proceeding. As a rule, the matter of appointment if exercised by an officer
granted appointing authority by law or the Constitution, and the appointee possesses the
minimum qualification requirements, then the matter of the appointment partakes of the nature of
a political question. It can be challenged only through a quo warranto proceeding which may be
instituted by the Solicitor-General or by one who claims to have better title to the position. He is
therefore contesting the title of whoever was appointed because he claims that he has better title
to the position. Okay, in this particular case, the SC said that the Tarosa petition may be treated
as a quo warranto petition but since Tarosa was not at all claiming that he has better title to the
position of governor of Bangko Sentral, than Governor Gabriel Singson, then the petition has to
be dismissed. Alright, so yun yung four requisites.
Effects of Declaration of Unsconstitutionality
Orthodox View and Modern View
And then what happens when the law is declared unconstitutional? The orthodox view
and the modern view. The orthodox view says that when a law or a governmental act for that
matter is declared unconstitutional it produces no rights, it confers no duties, it creates no office, it
is a total nullity, it is as if it was never passed at all. And this appears to be supported by Article 7
of the Civil Code of the Philippines. The SC has been almost always using the modern view
where the court simply refuses to recognize the law and decides the case on the basis of existing
laws. Note that under the modern view, an unconstitutional law, may produce legal effects prior to
the declaration of unconstitutionality. Class, J. Vicente Mendoza who is always rumored as an
examiner but never is an examiner last year, na-rumor sya na examiner, he just retired last year,
sabi ko, kare-retire lang ng tao, hindi naman magco-correct ng five thousand booklets yan,
palagay ko ngayon hindi rin eh. Anyway, J. Mendoza speaks of the functions of judicial review. He
says that there are three functions of judicial review, one, the checking function, two, the
legitimating function, and three, the symbolic function. So, alright. Symbolic, we have seen that in
Salonga vs. Pao, what do we mean by the checking function and the legitimating function? Dati
naman itong legitimating noon yan under the 1935 Constitution, may requirement na number of
justices who can declare a law unconstitutional. Anyway, the checking function has to do with the
power of the court to inquire into the validity of the act. Okay, flowing from the doctrine of
separation of powers and the corollay doctrine of checks and balances, the court as it were

THE PHILIPPINES AS A STATE

State
Elements of a State
Alright, next is the Philippines as the state since you have already mastered the Public
International Law, we will just go through these, well it is mainly in the matter of territory that we
look at many topics there that impinge on Public International Law. Anyway, the concept of the
State, the State being a community of persons more or less numerous, permanently occupying a
definite portion of a territory independent of its internal control and possessing a government
which a great body of inhabitants render habitual obedience. From the definition, were
immediately given information that there are four elements of the State: people, territory,
government and sovereignty. This is the majority view in Public International Law. In Public
International Law there is a minority school of thought that there are six elements of a State in
addition to the four, they claim that recognition should also be an element and the sixth is
possession of a relatively high degree of civilization. We concern ourselves only with the four.
People as an element of the State refers to the human beings who inhabit the territory of
the State. From the definition, the people should be numerous such that they can sustain
themselves, they can defend themselves and they should also consist of at least two sexes to be
able to perpetuate themselves. We do not know anymore how many sexes there are now that
they allow for marriages between men. Alright, from the purely academic point of view, people
may be understood in different senses under the Constitution. In the preamble, we the sovereign
people would refer to citizens of the Philippines because citizens would be able to ordain and
promulgate the Constitution. In Sec. 2 of Art. III, the right of the people to be secure in their
persons, papers, houses and effects against unreasonable searches and seizures. People there
refer to all human beings, young, old, male, female, citizen, alien. When in Art. VII, the
Constitution says that the President is to be elected by the direct vote of the people, People is to

11

be understood there as referring to the registered voters or at least qualified elected so, walang
problema yung people.
Territory. And for territory, generally defined as a fixed portion on the surface of the earth
where the people of the State lead. Traditionally, the components of the territory of the State may
be classified into terrestrial, fluvial, maritime and aerial. The terrestrial domain referring to the
land mass, the fluvial to the internal waters, the maritime domain to the territorial sea, and the
aerial domain to the airspace above the land, the internal waters and the territory of the sea. Of
course, there are States that do not have maritime domain where a State is landlocked, then, it
may not have a maritime domain as part of its national territory. For our purposes in Constitutional
law, we look at the national territory of the Philippines in Sec. 1 of Art. I of the Philippine
Constitution. And we are told that the national territory comprises the Philippine archipelago and
all the islands and waters embraced therein and all other territories over which the Philippines
has sovereignty or jurisdiction consisting of the terrestrial, fluvial and aerial domains, its territorial
sea is separately mentioned which refers to the maritime zone, the subsoil, the seabed, the
insular shelves and other submarine areas. Class, for purposes of determining the extent of the
Philippine territory, Sec. 1 of Art. I does not give us a real picture. We really have to resort to the
organic acts that may have been applied in the Philippines starting with the Treaty of Paris of
December 10. 1898 between the US and Spain where Spain ceded to the United States the
Philippine islands for the sum of $20,000,000.00 but even that group of islands ceded by Spain to
the US is not what the Philippine territory is today because after the Treaty of Paris, there was
another treaty entered into in Washington on November 7, 1900 as a consequence of which,
Cagayan, Cebu and Sibuto became part of what is now the national territory of the Philippines
subsequently, there was the treaty entered into by the US and Great Britain on January 2, 1930
as a consequence of which, the Turtle Islands and the Mangsee Islands also became what is now
part of the territory of the Philippines. It is funny that in 1935 when the Constitution was drafted
and eventually ratified by the people, Batanes did not seem to be part of the Philippines. The
legal basis for the inclusion of Batanes in the Philippine territory and Congressman Abad will not
like this, is the 1935 Constitution itself since the Batanes islands form part of the islands of the
territory over which is exercised sovereignty and jurisdiction. Then, of course, in 1973, the
definition of the national territory included the phrase territory belonging to the Philippines by
historic right or legal title, this was included in the 1973 because of our then strong claim to
Sabbah which apparently as dessinated just now. Then class, the ongoing conflict or controversy
over the Kalayaan islands. If that question is asked again the bar exams, this was asked in 1995,
I think, please class, if this is asked and the question asks on who has valid title to the Kalayaan
islands, you should answer the Philippines. Do not say Red China or Vietnam. The Philippine
claim to the Kalayaan islands is supposed to start with its discovery by a Filipino explorer named
Tomas Cloma. As you very well know, in Public International Law, discovery alone does not vest
title in the territory of the State. Discovery has to be coupled with occupation and this what Tomas
Cloma claims, that not only did he discover the Kalayaan islands, but he also did occupy the
Kalayaan islands. Subsequently, Tomas Cloma executed a deed of assignment in favor of the
Republic of the Philippines. In 1978, President Marcos asked that a new map of the territory of
the Republic of the Philippines be prepared along with the technical description in Presidential
Decree 1596, this is all set forth there and the new map as well as the technical description
already includes the Kalayaan islands. A copy of the decree, a copy including the technical
description has been filed by the Republic of the Philippines with the Secretary of the United
Nations. Finally, this claim by the Philippine government that it has continued to exercise
jurisdiction or sovereignty of the islands that in fact a number of the inhabitants of the islands are
registered voters in Palawan and in the last elections last May, those inhabitants voted in
Palawan. These facts and arguments collectively served to strengthen the Philippine claim to the
Kalayaan islands. Alright, but if I were to ask a question in the Bar exams, my question would not
be on the first sentence of Sec.1. It would be on the 2 nd sentence on Sec. 1, on what is known in
Public International Law as the archipelagic doctrine of national territory.
The Archipelagic Doctrine of National Territory
The archipelago or the archipelagic doctrine of national territory. The doctrine is stated in
the second sentence when the Constitution says the waters around and between connecting the
islands of the archipelago irrespective of their breadth or their dimension form part of the internal
waters of the Philippines. So, kung ako magtatanong sa Bar exams, ang tanong ko dyan eh,
what is the archipelagic doctrine of the national territory? Explain the rationale for the doctrine
and illustrate how the doctrine works. 1%. Alright, so, the doctrine is stated by restating the
second sentence, the waters around, between and connecting the islands of the archipelago.
What is the rationale for the archipelagic doctrine? You see, you have to look at an archipelago in
relation to a single island state. If you have a single island state, the terrestrial domain is
precisely the land mass, the fluvial domain would be the rivers, the lakes, the base, the gulfs.
While in the case of an archipelago, which consists of a number of islands separated by bodies of
water, you have the land mass separate from one another. The idea of the archipelago doctrine is

12

that these separate islands should be treated just like a single mass. An integrated whole. It
should be treated in much the same manner as if it were one whole island only. And how do you
go about it? Why should it be treated like a single island? It should be treated as a single island
for purposes of defense. How do you go about it? You are supposed to use the straight baseline
method. The straight baseline method tells us that we should draw straight imaginary straight
lines connecting the outermost points of the outermost islands in the archipelago. After having
drawn the imaginary baselines then all the waters inside the baselines shall be considered as
internal waters, fluvial domain, theoretically. So that, when you speak of the maritime zone or the
territorial sea, here in the single island state you go twelve miles from what is known as the low
water mark. The low water mark is the lowest point in the shore which the water reaches at low
tide. So, twelve miles extending out to the sea from the low watermark would be your territorial
sea which is the same as what you used to call the maritime zone. Since an archipelago is to be
treated just like this, you measure your twelve miles no longer from the low water mark but from
the baselined. And that would now be your territorial sea. It is really that simple. Now, under the
UN convention on the law of the sea, the UN convention on the law of the sea, the archipelagic
doctrine is recognzied. The Philippines is a signatory to the UN convention on the law of the sea
and the Philippine government ratified this in August of 1983. Now, however, because of the UN
convention on the law of the sea, notice certain ramifications insofar as the archipelagic doctrine
is concerned. What is the extent of the sovereignty of the State of a single island state over its
fluvial domain, its rivers for example. The State can refuse foreign vessels from entering its fluvial
domain, its rivers. Refuse foreign vessels from entering Pasig Rivers. Although, I dont see why
foreign vessels would like to enter Pasig River, mahirap naman. Yet, note, if these are internal
waters, waters around, between and connecting the islands of the archipelago, can we then really
prevent foreign vessels from entering these waters? Because, here, the exercise of jurisdiction
over the fluvial domain as a strong, so to speak, as the exercise of jurisdiction over the land
mass, dito, now in the UN convention the law of the sea, when, in an archipelago, there is a vast
distance between islands separated by water, it is possible that foreign vessels may be allowed to
pass through what are supposed to be channels between islands. These channels are known as
archipelagic sea lanes.
Incidentally, class, also in Public International Law, when you apply the straight baseline
method and draw imaginary straight lines connecting the outermost points of the outermost
islands of the archipelago, you should draw these lines in such a manner that the ratio between
water and land should not exceed 9-parts water to 1-part land. The second limitation is that when
you draw your straight lines connecting the outermost points of the outermost islands of the
archipelago, you do not depart appreciably from the general configuration of your archipelago.
Alright, because we have touched on the UN convention on the law of the sea, consider class two
other things in connection with un clause, and that is the provision of a contiguous zone and a
provision on the exclusive economic zone. The contiguous zone is supposed to extend twelve
miles from your territorial sea. This is the territorial sea, this is contiguous zone. And so, if you
look at an archipelago, you do the same thing, twelve miles out to sea from your territorial sea.
On the other hand, the exclusive economic zone is supposed to extend two hundred
miles from the low water mark in a single island state, two hundred miles from the baseline in an
archipelago. Now, since we are talking about national territory, is the contiguous zone and most of
the exclusive economic zone, part of the national territory of the state? The answer is NO.
Because the national territory of the state extends only up to its territorial sea . However,
the coastal state may exercise certain preferential rights over the marine resources found in the
contiguous zone and the exclusive economic zone. Exercising preferential rights allows the
coastal state to exercise jurisdiction over certain offenses that may be committed in the
contiguous zone and the exclusive economic zone such as poaching. Since, the state has the
right of the marine resources found in the zone, anyone who should take these resources without
consent of the coastal state therefore violates the preferential right enjoyed by the State. Thus,
the coastal state can punish violators who commit the violation outside the territory and from your
mastery of criminal law, because you have mastered criminal law already, you know very well that
one of the characteristics of criminal law in the country is territoriality. Here, the coastal state can
extend beyond its territory, beyond its application of criminal laws insofar as these criminal laws
seek to protect the rights of the coastal state over the contiguous zone and the exclusive
economic zone.
The Insular Shelf
What is the insular shelf mentioned in the first sentence? There is a precise definition of
that in public international law where it is called a continental shelf. Okay, so, yung other things on
jurisdiction which will should be properly taken up also in discussion of sovereignty should really
be discussed now in Public International law.

13

We now move on to the next element of the state and that is government. Government is
the instrumentality through which the ideals of the state are formulated, expressed and realized
and so on. Now, class, I would like you to memorize, since there is still time anyway, if you have
not memorized, Sec. 2, par. 1 of the Administrative Code of 1987 on the definition of the
government of the Republic of the Philippines. Not so much because it will be asked
independently as an objective type question but more for the understanding because this is not
useful only in Political law. It may be useful also in other subjects. In Remedial Law, I understand
that government is exempt from the payment of filing fees, from the payment of appeal fees, etc.
When you speak of the government being exempt, which government, which agencies of
government do you refer to? This is the official definition of the government of the Republic of the
Philippines. What do we have to look at for the purposes of the Bar exam in connection with the
government, perhaps, only three things: the doctrine of parens patriae, its an old doctrine. It
will be asked in the Bar exams only if your examiner is an old, old examiner. So, literally, parent of
the people. The doctrine is best illustrated in Government of the Philippines vs. Monte de
Piedad. If you recall the case, there was an earthquake in the Philippines. Many contributions,
donations came from Europe for assistance to the victims. The amounts were deposited in the
Monte de Piedad bank. Unfortunately, the beneficiaries of the donations were not named by the
donors. So, Monte de Piedad refused to release the money and so government attempted to
withdraw the money so the government could distribute the same to the victims. The bank
refused. The government went to court. The SC said the bank must allow the government to
withdraw the money because government is parent of the people. Remember, however class,
that this happened a long, long time ago when the government could still be depended upon to
withdraw money and distribute this to the real beneficiaries. So, the doctrine was also cited in
Cabanas vs. Pilapil where the court ruled on the natural mother as trustee for insurance
proceeds, which the child was entitled to as beneficiary on the insurance policy taken on his
natural father. Natural father, may anak. The natural father took an insurance policy. When the
natural father died the child was still a minor so there was need to create a trust fund and a
trustee to take care of the fund. Contenders were the natural mother and the natural uncle,
brother of the natural father. The SC spoke of the doctrine of parens patriae in relation to the
decision to grant the natural mother the privilege.
Functions of the Government
Alright, the other item on government has to do with what used to be called the functions
of government. Traditionally, the functions of government were classified into constituent and
ministrant functions of government. The constituent functions were supposed to be functions of
government that were absolutely necessary. They constituted the very bonds of society without
which there would be no order in society as well as the government. And so, they were
mandatory like maintenance of peace and order, laws on family relations, etc.
On the other hand, the ministrant functions of government that were optional. Optional
in the sense that the government would normally leave this to the private business, the private
enterprise and come in only to help to assist the welfare of the people or the benefit of the
community. However, even in the 60s, PVTA vs. CIR, the SC already said that there is no longer
a real demarcation. That the distinction has become blurred because as you will note, even under
the 1935 Constitution, with so many social justice provisions therein, what were traditionally
considered to be merely ministrant functions have become compulsory or obligatory for
government to perform. Siguro, 50-60 years ago, shelter was not a constituent function of
government. Housing for government was not mandatory. Today, the Constitution speaks of the
provision for shelter and other social services. And, because of the doctrines being repeated in a
relatively recent case, in Association of Philippine Coconut Desiccators vs. Philippine
Coconut Authority, we look at this French term known as laissez faire.
The French term, laissez faire literally translates to let alone. Laissez faire as a doctrine
is supposed to be integrated in a free enterprise economy so that when business or private
enterprise says let alone that is addressed to the government, telling the government leave us
alone, do not impose many things on us, do not give us so many regulations because we can
take care of ourselves because we are in a free enterprise economy. Many many years ago, in
one bar examination, a question was asked, do we still adhere to the laizzes faire doctrine?
Support your answer with constitutional principles. It was one of those questions that many bar
candidates could not answer because that was the first time they saw laizzes faire. But it was a
valid question because even then, the SC had already decided the case of Edu vs. Ericta where
the Supreme Court categorically said that as early as the 1935 Constitution, we had already
repudiated the laissez faire doctrine. In that case the SC justified this conclusion by saying that
there were many social justice provisions in the 1935 Constitution, which repudiate the laissez
faire doctrine. So many social justice provisions in the Constitution which justify the intervention
by government in many things that even private enterprise undertake. Indeed, if the 1935

14

Constitution was already a repudiation of the laissez faire doctrine, with greater reason can we
say now under the 1987 Constitution that the laissez faire doctrine has truly been repudiated. In
Association of Philippine Coconut Desiccators vs. Philippine Coconut Authority, the SC precisely
said that. Notice that the 1987 Constitution even more social justice provisions than the 1935
Constitution.
Classification of Government
Alright, then the only are in government that I think may be potential bar examination
question source would be the classifications of government. The most commonly asked question
in the past was the classification of the de jure and de facto governments. In all of your books,
a de jure government is defined as a government that has legal title but does not have control of
government machinery, while a de facto government is one that has control but does not have
legal title. Class, I just would like to warn you that the definition of the de jure government there is
correct only when the de jure government co-exists with a de facto government. Because when
two governments co-exist, it is the de jure government that has title but not control, it is the de
facto government that has control but has no title. But when there is only one government, a de
jure government, then that government has both title and control. For example, the GMA
government, it has control, or so we claim it has legal title. How would you classify that then? It
cannot be both a de jure and de facto government, although some of our friends call it an impacto
government. Alright, so nevermind, ako sipsip ako dyan. Dont tempt me because sipsip ako, I am
pro-government.
Three Classes of De Facto Government
Alright, so, and what used to be asked not only included the distinction but also an
enumeration of the three classes of de facto governments. That which takes control or usurps
either by force or by force of the majority the rightful legal government and maintains itself against
the will of the latter, that which is established by the inhabitants of the territory or rise in
insurrection against the parent state and that which is established by the invading forces of the
enemy or who occupy enemy territory in the course of war, and the third kind is called the de
facto government of paramount force. Okay, but as I said earlier, it is possible that now a question
may also be asked about the distinctions about a presidential and a parliamentary system of
government.
The basic distinction between a presidential and a parliamentary form of government
class, is that in a presidential government, the executive power and the legislative power of
government are vested in two separate departments. So that, the doctrine of separation of
powers prevents the fusion of these two powers since one power is allocated by the Constitution
into the one department into the other department. So, you have the President, the Congress
here, hiwalay, nagigigrian pirme. Alright, in a parliamentary government, there is fusion of both
executive and legislative power of government and these executive and legislative powers of
government are vested in parliament. The executive powers are actually exercised by a prime
minister who belongs to parliament, and who is chosen by parliament and who is accountable to
the parliament, and who may be removed by parliament at any time on the basis of a no
confidence vote. The prime minister as head of government, also heads parliament and therefore
participates even in the legislative powers of government. The prime minister has his own cabinet
and most of the members of the cabinet are members of parliament and they also participate not
only in the implementation of laws or the administration and execution of laws but also in the
enactment, the making of laws, that is the distinction between a parliamentary and a presidential
system. And, after the bar exams, I expect you to be apostles of parlamentarism so that you can
tell the people that this is what this cha-cha is all about. It is not really dancing. And then of
course the unitary system as against the federal system of government. The best example of a
federal system would be the United States of America. You have separate independent states
which have federated altogether and given the federal government certain powers. And so,
national defense, for example, taxation, foreign affairs, but each of these independent states is
supreme in its own right within its territory. Ang pagkakaiba lang, kasi in America, you had thirteen
original states independent of one another which federated. In our case, we have a unitary
government, we have the central government here and your local government units are only
extensions of the central government and everything comes from the central government, ang
pagkakaiba lang ngayon and that is the difficult part if we should shift to a federal system is for
the national government now to determine which powers it is willing to give up to the individual
states that will be created when we do make a shift to a federal system of government. What we
are saying is if for example policies on natural resources should be given to the individual states,
then if we were to consider the present regions as potential independent states, it is possible
therefore that northern Luzon may allow mining while southern Luzon may refuse to allow mining
within its territory kung kanya-kanya na policies. However, there would be national policies of
course, which the individual states cannot violate. Alright, so the idea then is that in a federal

15

system, you have individual states each independent of one another, each possessing sovereign
powers in its own right which have decided to federate and give up some of its powers in favor of
a national federal government. While, in the case of a unitary government, the entire government,
its powers, functions, are situated in a national government and the national government
devolves part of its powers for implementation and for execution at the provinces at the local
level. Alright, that should take care of government.
Then, we go with sovereignty. Again, in the matter of sovereignty, defined as the
uncontrollable power by which the state is governed, perhaps all you have to remember really
here are the characteristics muna. The characteristics of sovereignty: permanent, exclusive,
comprehensive, absolute, indivisible, inalienable, imprescriptible. Miski yun lang muna because
as you know them, if there should be a problem regarding sovereignty, then that is all that you
have to lean back on. The only possible questions would be, what happens to the laws of the
territory once there is a change in sovereignty? Simple political laws are abrogated automatically,
unless the new sovereign reenacts them. Municipal laws remains in force and effect unless the
new sovereign abrogates them. This rule also applies to judicial decisions and so on so that a
person who may have been convicted and may still be serving sentence for a crime of political
complexion will have to be released once there has been a change in sovereignty.
Belligerent Occupation
Now, belligerent occupation, insofar as sovereignty is concerned, when there is a
belligerent occupation, there is no change in sovereignty. If belligerent occupation takes place,
class, when the invading forces of an enemy occupy enemy territory in the course of war, the
enemy territory occupied then is deemed to be territory under belligerent occupation. What
happens to the laws of that territory that is under belligerent occupation? The SC gave us the
answer and said there is no change in sovereignty, however, political laws, including the
Constitution are suspended in application during the belligerent occupation. Again, political laws,
including the Constitution except the law on treason are suspended under the period of the
belligerent occupation. In the case of Laurel vs. Misa, the SC said that the law on treason is not
suspended because what the real sovereign demands, since it is not physically present now to
exercise control because control is in the hands of the belligerent occupant, what is sovereign
requires of the inhabitants is merely passive allegiance. The sovereign does not ask the
inhabitants to rise up in arms against the belligerent occupants. But, the sovereign requires that
these inhabitants remain faithful to the sovereign. Accordingly, if some of these inhabitants should
give aid and comfort to the belligerent occupant voluntarily after the belligerent occupation, these
inhabitants may be prosecuted for treason because the law on treason is not suspended during
the period of the belligerent occupation. All other political laws are suspended but once the
belligerent occupant is ejected or ousted from the territory then all of these political laws become
effective again automatically under the International Law principle known as jus postliminium.
State Immunity from Suit
Alright, as an incident of sovereignty, the state is immune from suit. Otherwise stated, the
state cannot be sued without its consent. The late Samillo Barlongay, former Commissioner, twice
bar examiner in Political law used to be a very avid student of State immunity from suit and even
in his classes he always spoke of this as the Royal Prerogative of Dishonesty because the state
is dishonest in that sense. Okay, what is the legal basis or the basis of the doctrine of state
immunity from suit? This is really taken from an American case repeated in the Philippines. The
basis is that its really a practical consideration that there can be no legal right as against the
authority which makes the laws on which the right depends. And so, what are we looking at,
class? No suit against the state without consent. Madali lang yan eh, if you sue the Republic of
the Philippines, then you know it is a suit against the state. You sue the Republic, X vs. Republic
of the Philippines. X vs. a public officer or X vs. a government agency, then in such a case, you
may find some difficulty whether suit will lie if the suit is not against the Republic of the Philippines
per se. But, even if we go there, I would like you to look at some Public International Law
principles and perhaps some of them are not really Public International Law principles but more
constitutional law but when you speak of the doctrine of state immunity, you also consider all
other sovereign states as immune from suit in Philippine jurisdiction.
Second, heads of state, other sovereign states are not within the jurisdiction of the
Philippine courts and the Philippine administrative tribunals because they are themselves
sovereign. Under the Public International law principle, par in parem non habet imperium.
Between equals neither can exercise jurisdiction over the other. The heads of state are also
immune from suit inviolate immunity because they personify the sovereign state that they
represent. Diplomatic representatives to a certain extent even consuls for this purpose 2003
decision, Minocer vs. CA, where the SC said that in order that a diplomatic agent may enjoy
immunity from suit, it is necessary that he has acted within the directive of the sending state so

16

that if he sued in his personal capacity for an act that is not attributable to the state, then he does
not enjoy such immunity. The United Nations, organs of the United Nations, specialized agencies
of the United Nations, these, by convention, are also immune from the jurisdiction of your local
courts and local administrative tribunals. We have decisions on this in the Philippines, no problem
there. And of course, the Philippines being a signatory to the United Nations charter and the
convention on privileges and immunities in the UN as well as the immunities of specialized
agencies of the UN, no problem na tayo don. By virtue of SC decisions, certain agencies
organized by international agreement labor, you mastered this already in labor, the case of
SEAFDEC vs. NLRC. The Southeast Asian Fisheries Development in Iloilo. The center is
manned personnel, many of them Filipinos. So, in an employer-employee controversy, a case
was filed against SEAFDEC with the NLRC. SEAFDEC alleged that it is immune from suit and it
is not within the jurisdiction of the NLRC. The NLRC refused to concede that and continued to
exercise jurisdiction and SEAFDEC went up to the Supreme Court and the SC said that
SEAFDEC is an agency that was organized through an international agreement and thus, it
should be accorded immunity from the jurisdiction of our local courts and our local administrative
tribunals.
In the same manner, we have the International Rice Research Institute. Callado vs. IRRI.
When the International Rice Research Institute was set up here, one of the things that it obtained
from government was a concession that it should be immune from suit or immune from the
jurisdiction of our courts and local administrative tribunals unless there is a waiver executed by
the executive director of IRRI. This concession was granted by the Philippine government in the
form of a presidential decree issued by President Marcos then. That Presidential Decree has
remained valid up to now. There was an attempt by Congress to amend that decree but the
attempt remained merely an attempt, it was never approved. So, waiver lang. Of course, class, in
public international law, there are a lot of other instances when there is a waiver jurisdiction of the
home state over agencies, nationals from another state. For example, when by virtue of a treaty,
there is a waiver of jurisdiction including
Alright, like what happened when there were US bases here and the Philippine
government waived jurisdiction over certain criminal acts committed by members of the US
armed forces. And then, of course, class, in public international law, an act of state is not within
the jurisdiction of the courts and the administrative tribunals of another state. Alright, we move
back to this. Ito, sigurado tayo, suit against the state. Now, what about a suit against a public
officer. To go back to Minocher, in the case of diplomatic representatives, the diplomatic
representative enjoys immunity when it acts within the directives of the sending state. In the same
manner, a public officer, a suit against a public officer, when the suit is made respecting his
performance of his official functions and duties, would be a suit against the State. But, if the
public officer is sued because he committed an act that is ultra vires, or he has acted with malice
or bad faith or with gross negligence, then suit against him is a suit against him in his personal
capacity because the State is not bound by an act that is beyond the scope of the authority of the
public officer. The State cannot be bound by an act committed by the public officer with malice or
with bad faith or with gross negligence. Accordingly, a suit against the public officer for any act
attended by any one of these would not be a suit against the State and the State would therefore
not be liable for that.
In the case of Sanders vs.Veridiano, the SC said yes, when a public officer is sued on
account of public duties and functions, then it would be a suit against the State. It would be the
State that will respond for whatever liability that may be assessed against the public officer.
However, in Sanders vs. Veridiano, o tignan nyo, there are really many instances that a public
officer may be sued. One, a suit for mandamus, to compel him to do an act, a ministerial act that
he is required to do by law. Or, a suit for prohibition, a suit to prevent him from doing an act to be
claimed as unconstitutional. Or, a suit to obtain a payment of damages for example from the
public officer where there is already an appropriated amount for the purpose or payment of a
claim for tax refund where there is already an amount set aside for that purpose.
The fourth instance would be a suit against the public officer in his personal capacity such
that judgment against him will not compel the state to do a positive act to answer for the liability of
a public officer.
And fifth, suit against the public officer where the government itself has committed a
violation of law. These are instances cited by the SC in Sanders vs. Veridiano where suit may lie
against a public officer but in four of those cases, would still be suits against the State. It is only
the one relating to exercise of powers beyond authority or acting with malice, bad faith or gross
negligence, that is not really a suit against the State.
Suit against Government Agencies

17

Then, government agencies, well, the test is to look at the nature of the agency, if the
agency is incorporated, that means the agency has a personality different from the Republic of
the Philippines. Incorporated. Ordinarily, the agency has a charter. The charter of the agency is
the law creating it or the law under which it is incorporated. So, the GSIS, the SSS, the DBP,
these are agencies that have their own respective charters. They are government agencies that
are incorporated. Can they be sued? Yes, because in the case of incorporated agencies, you look
at their charter, if their charter says that they can sue and be sued then that provision in the law is
express consent on the part of the state for that agency to be sued. There are other agencies of
government that are incorporated by the filing of articles of incorporation with the SEC pursuant to
the Corporation Code, which you have already mastered. Alright, in such a case, what would be
the charter of this incorporated agencies, the charter would be their respective articles of
incorporation and the corporation code. But, the corporation code contains precisely a provision
to the effect that these corporations among others can sue and be sued, that provision is consent
on the part of the State for all of these corporations which are organized or incorporated pursuant
to the Corporation Code to be sued.
Consent to be Sued
Local Government Units, Municipalities, Cities, Provinces, Barangays
Now, local government units, municipalities, cities, provinces, barangays, they are also
corporate agencies. They are both corporate and political agencies. As corporate agencies, they
possess personalities independent of the national government, independent of the Republic of
the Philippines, and so, you look at their charter.
What is the charter of a local government unit? How is a local government unit created?
Provinces, cities, municipalities and barangays are created by law but barangays may also be
created by an ordinance duly passed by the sangguniang panlalawigan or the sangguniang
panlungsod as the case may be. The charter of the local government unit therefore would be the
law creating the local government unit, and on top of this, you have a general charter for local
government units known as the Local Government Code. If you will look at Sec. 22 of the Local
Government Code, in the enumeration of Corporate powers of local government units, you will
find that one of the corporate powers of the local government unit is the power to sue and be
sued. Sec. 22 therefore is express consent on the part of the State for any and all of the local
government units to be sued, therefore, a local government unit can always be sued. Always be
sued whatever it is doing, whether governmental or proprietary, whether engaged in
governmental or proprietary activities, local government units can always be sued because there
is express consent found in the charter for local government units to be sued. The only other
problem perhaps would be if the charter of the agency does not contain any such provision as in
the case of the Philippine National Railways. But as in the case of Malong vs. PNR, the SC
already said, that the PNR, because it performs primarily proprietary functions can be sued even
if the charter is silent on whether it can sue and be sued.
In the case of an incorporated agency, you are talking here of an agency that has no
independent or separate personality from the Republic of the Philippines, for example your line
departments, your line bureaus, the Department of Public Works, the Department of Agriculture,
the Department of Justice, the Department of Education, the Bureaus under them. These are
your line departments and these are your unincorporated agencies of the government. Can you
sue them without consent? It depends on the nature of the primary or principal function of the
unincorporated agency. If the principal function is governmental, then the agency cannot be sued
unless there is consent to be sued. On the other hand, if the principal function is proprietary, then
it can be sued because of the principle that when the state exercises purely proprietary functions
then it descends to the level of a private individual and becomes vulnerable to suit for the
transactions and/or actions that it enters into a principally proprietary character.
We have, however, a case involving the Deparment of Agriculture vs. NLRC. The
Department of Agriculture is an agency performing primarily governmental functions. The SC in
that case said that the Department of Agriculture may be sued by service contracts entered into
by it because the Supreme Court was able to find an old, old law, passed by the old Philippine
Legislature constituted under the Jones Law, Act No. 3038, and there, the SC found consent on
the part of the State to sue the Department of Agriculture on the basis of service contracts
entered into by it.
But, the more difficult question perhaps is this, suppose the agency performs both
proprietary and governmental functions, how do you resolve this? In such a case, you look at the
principal function of the agency and that is what is supposed to prevail. Look at the case of
Mobile Exploration Philippines vs. Customs Arrastre Service. Look class, the Customs
Arrastre Service was sued, the Customs Arrastre Service is supposed to be engaged in arrastre.

18

Arrastre is proprietary. The government even leases out, bids outs arrastre services to private
enterprises in ports all over the country. Yet, when it was sued, it said it is immune from suit. And,
when the SC decided, the SC said, the Customs Arrastre Service may be performing proprietary
functions but the Customs Arrastre Service is only an adjunct of the Bureau of Customs, such that
if you sue the Customs Arrastre Service, you are in effect suing the Bureau of Customs. And the
Bureau of Customs is an incorporated agency performing governmental functions. Therefore, suit
will not lie against the Customs Arrastre Service without its consent. Okay, so, consent pa rin.
Consent pa rin ang pinaguusapan dito. Consent may either be express or implied. Before we look
at these classification of consent, I would like you to recall Republic vs. Feliciano. This is not
basically Political law, this is more in Remedial law, but in Republic vs. Feliciano, the SC said,
when suit is filed against the state, either in the form of an original complaint or by way of
counterclaim, when suit is filed against the state, the complaint or counterclaim must allege that
consent has been obtained and where this consent is found. The SC went on to say, absent this
allegation, the court may sua esponte, dismiss the action because any suit against the State is in
derogation of sovereignty and must be construed in a strictissimi juris. So yan, for purposes of
practice later on, requirement ng SC.
Express Consent
Alright, express consent, only Congress can give express consent because express
consent may only be given through a law and only Congress can make a law. Okay, the consent
may be given through a general law or through a special law. The most common example of a
general law is Commonwealth Act 327 as amended, under which it is provided, that anyone who
has a money claim against the State must first file the money claim with the Commission on
Audit. Only when the Commission on Audit denies the claim or perhaps fails to act upon the claim
within a reasonable period of time, may the claimant now go to court to demand payment of the
claim, So that is consent but there is a prerequisite before suit may be filed in court and that is
filing of the claim with the Commission on Audit.
The number one question given in that bar examination by Justice Lee was a ten point
question na simpleng-simple. Problem Raintree Corp. entered into a contract with the AFP for the
supply of uniforms, in the contract, there was a provision to the effect that any litigation arising
from the contract shall be within the competence or jurisdiction of the appropriate court in the city
of Manila. Raintree corporation delivered the uniforms, demanded payment and was not paid by
the AFP. Question, where should Raintree corporation file its claim? Explain. 10%. Kung hindi
10% yon, isang sentence lang, tapos na eh. The claim should be filed with the Commission on
Audit consistent with the Commonwealth Act 327 as amended. Pero because it was a ten-point
question, medyo, that means the examiner was asking for something more. Maybe he would
have wanted you to discuss the effect of the provision on venue, the provision in the contract as
to suit being filed in the city of Manila, ganyan ganyan. Pero it was a relatively easy exam, so
okay naman, mataas naman ang passing percentage so ayos din naman.
We merely proceed were we left off last night. We stopped with consent, so just to go
back to the basic principle the State can be sued only when it gives its consent. The consent
may either be express or implied. We said express consent can be given only through a law and
so, only congress can give express consent. Accordingly, not even the President of the
Philippines can give consent. When during the trial for instance, assumed for example that suit is
filed against the Department of Public Works and Highways and the Secretary of the department
instructs the lawyers of the department to answer, file an answer, instead of bracing the issue of
State immunity from suit. After the answer, the lawyers of DPWH go to pre-trial and enter into
certain stipulations, admissions and so on. All these be an availing because if there is no
consent, the state cannot be held liable and cannot be deemed to have waived its consent by
estoppel. No estoppel shall die and so not even entry into trial would yield implied consent,
where implied consent is not proper, alright. So, the express consent must be given through a
law and the law may either be a general law or a special law. The most commonly referred to
general law is Commonwealth Act 327 as amended and 327 says that any money claim shall be
first, any money claim against the state shall first be filed with the Commission on Audit, only with
the Commission on Audit denies the money claim or the Commission on Audit fails to act upon
the claim within a reasonable period may the claimant then go to court.
I think we stopped last night with the problem given by Justice Lee in the 1998 bar
examinations. As we said the question was very simple and even as the examiner obviously
wanted a discussion of that provision in a contract that said that any litigation shall be within the
competence of the appropriate court in the City of Manila, that provision in the contract was
merely a provision on venue. That provision would not apply until after the money claim had first
been filed with the Commission on Audit and the Commission on Audit has denied the claim or
failed to act upon the claim within a reasonable time.

19

The exception, however, given by the Supreme Court itself is in the case of the City of
Ministerio vs City of Cebu. I think the more commonly cited case is Amigable vs Cuenca.
The Supreme Court said, that where a property owner has his property taken in eminent domain
proceedings and is not paid just compensation, he may go directly to court to demand payment of
just compensation and his failure to file a claim with the Commission on Audit prior to his resort to
the court does not matter at all. In Amigable vs Cuenca, the Supreme Court said, that doctrine of
State immunity from suit cannot be used as a shield in order to perpetrate an injustice against the
property owner, alright. So, this is an exception, now, where else do you find, where else do you
find, general laws that sort of give express consent because if you look at the charters of
incorporated agencies for example, these are in the nature of special laws, these are in the
nature of special laws, and cover merely the incorporated agencies governed by this specific
charter.
There is, in the Civil Code, I, since you are the ones who have mastered the Civil Law
already, there is in the Civil Code for example, an imputation of a, an imputation of a vicarious
liability on the part of the state when the State acts through a special agent. So, the State is
liable when it acts through a special agent. Is this provision, is this provision in the Civil Code,
express consent on the part of the State to be sued? This is one of the questions I would have
given in the bar exams if I were the examiner. Explain, explain fully! 1 percent, syempre. Even
as we should be taking this up in a little while, the question arises, is an imputation of liability in
fact consent towards suability considering that jurisprudence tells us that suability should be
treated differently from liability. If, well, in such a case, since there is no, there is no jurisprudence
on the matter, I would probably consider both answers correct. If I were to correct the papers so,
I would do not even have to read the answer, I would consider it correct because after all walang,
walang sigurado.
Those who would say that this imputation of vicarious liability on the State is consent,
forgets, forgets the distinction between suability and liability, that when the State consents to be
sued it does not admit liability. Conversely, when it admits liability under the law does it mean that
it yields its sovereign immunity from suit? So, you can say, No! No, because the immunity flows
from sovereignty and as the Supreme Court said in Republic vs Feliciano, any suit against the
State is an interrogation of sovereignty and has to be construed very, very strictly.
On the other hand, on the other hand, one can say, that law will be useless if it were not
an admission have suability, how then can the State be liable if it can always avoid suit by simply
invoking its immunity from suit. That brings us exactly to that phrase royal prerogative of
dishonesty. So, perhaps, perhaps, that will not be asked in the bar exams of course, that will
not be asked in the bar exams because you are looking at the Civil Code but that is what I have
been saying, there is a lot in law that interlaces and impinges on one another and this is one of
the cases precisely where I think there should be some kind of clarification from the Supreme
Court, alright. So, there is no question about a, about, a general law, general law grants consent.
Anyway, most of the cases, rather most of the questions in the bar exams focus only on
Amigable vs Cuenca. Now, consent may also be given through a special aw, not only in the
form of the various charters that congress may pass in the matter of the creation of certain
incorporated agencies. But, we know from jurisprudence that Congress can pass laws especially
allowing somebody to sue the State. As in the case of Merritt vs Government of Philippine
Islands, you recall what happened in Merritt, in Merritt, Merritt riding his motorcycle was bump by
an ambulance belonging to the Philippine General Hospital. His motorcycle was damaged and
he himself sustained injuries but he could, he knew he could not sue the Philippine General
Hospital, the PGH is an incorporated, an INCORPORATED agency of the Philippines. So, he
needed consent on the part of the State to sue and claim damages. So he lobbied with the
Philippine Legislature and the Philippine legislature gave him a law, passed a law allowing him to
sue, allowing him to sue the government and so he sued and he proved this case and he went all
the way up to the Supreme Court and the Supreme Court said, yes, you were given the consent
to sue, but, since the ambulance was being driven by the regular driver of the Philippine General
Hospital the State is not liable because the State was not acting through a special agent. So,
imagine, I dont know, how much effort he spent in trying to obtain that law granting him consent
to sue. Anyway, he enriched Philippine jurisprudence for us to study, you know, kawawa naman
si Meritt.
Implied Consent
But the better question perhaps has to do with implied consent. Implied consent.
Consent is deemed implied when the State commences litigation. When the State sues a party,
then the State sheds off its invulnerability and allows it self to be sued on a counterclaim.
Remember, when the State sues a party, a person, or an agency or a corporation, a juridical or
natural person, it does not mean that the State completely sheds off its immunity. It becomes
vulnerable only to a counterclaim and yet, in that respect the State is deemed to have impliedly

20

given consent to be sued. Because you have mastered remedial law, some of you may ask, what
kind of counterclaim is the State consenting to? Is it a compulsory counterclaim or a permissive
counterclaim? Or both? You are the ones who have mastered Remedial Law, I have not so. If it
were a compulsory counterclaim, I am very very sure that a compulsory counterclaim relies
against the State when the State commences litigation. But I would like to believe, even as the
courts have always been very strict in interpreting exceptions to immunity from suit, I would like to
believe that a permissive counterclaim may be allowed in so far as the consent given by the State
when it commences litigation.
Perhaps the better question still would be, when the State intervenes in a pending action,
is the intervention by the State commencement of litigation and therefore, implied consent to be
sued? A files suit against B, the Republic of the Philippines intervenes. Is the intervention by the
Republic of the Philippines commencement of litigation? The answer to that is, it depends on the
nature of the intervention. If the intervention is made only for the purpose of seeking the
dismissal of this action on the ground that the suit against B is a suit against the State without
consent then the intervention is not commencement of litigation. On the other hand, if the
intervention is made by the State for the purpose of demanding some other relief or remedy
independently of the dismissal action on the ground that it is a suit against the State without
consent then such intervention, such demand for some other relief or remedy other than the
dismissal of the action is commencement of litigation and therefore to that extent, the State
concedes its vulnerability to a counterclaim. Class, you will note in a lot of cases particularly
involving the United States of America, the cases you read in your books speak of the US, US
versus whoever, its usually the US versus the judge, because in many cases when suit is filed by
someone against an officer of the US government, invariably, the State, the government of the US
intervenes in the action and demands that the case be dismissed on the ground that the suit
against an officer of the United States of America is a suit against the sovereign State without
consent and so, should not lie. Invariably, in the lower court, the judge does not grant the motion
to dismiss in the intervention and so, when the motion to dismiss in the intervention filed by the
US is denied by the judge at the lower court level, the United States of America goes to the
Supreme Court on certiorari against the judge and against the plaintiff, whoever the plaintiff might
be. And so, you have US vs Ruiz, US vs Guinto, US vs Rodrigo, all these US, you have, the
more recent Government of United States of America vs Judge Purganun in that celebrated
Mark Jimenez Case which we will study of course in the course of our treatment of discussion on
the right to bail and which you have mastered already in Public International Law. So yun,yun
ang nangyayari dyan, kaya yan mga US, US na yan, okay.
So the second instance when the State is deemed to have given implied consent is when
the State enters into a business contract. Alright. US vs Ruiz is the case in point. In US vs
Ruiz, the Supreme Court said, that contracts entered into by the State may be classified into
contracts in jure imperii and contracts in jure gestiones. Contracts in jure imperii are contracts
entered into in the governmental or public character of the State, while contracts in jure
gestiones are contracts entered into in the proprietary business or commercial character of the
State. Only contracts in jure gestiones may be said to carry the implied consent on the part of the
State to be sued.
Contracts in jure imperii are deemed outside precisely of the areas where implied
consent is supposed to be given. So, what happened in US vs Ruiz? In US vs Ruiz, the base
officers of the Subic Bay US Naval Facility needed some of the wharves in the naval facility
repair, so, a bidding was conducted. A Filipino construction company won the bidding having
submitted the lowest bid, lowest complying bid, okay. An award was given to the Filipino
contractor. Later however, the contract was not executed, a contract was executed with another
contractor. The Filipino contractor who won the bidding went to court on an action for specific
performance with damages. The United States of America intervened, asked for the dismissal of
the action on the ground that this was a suit against the State without consent. The lower court
denied the motion to dismiss, the US went up to the Supreme Court. The Supreme Court said,
contracts entered into may be classified into these, was the contract for the repair of wharves a
contract in jus imperii or a contract in jus gestiones. The Supreme Court said it was a contract in
jus imperii, why? Because the repair of the wharves, well the Supreme Court said, what was the
use to which these wharves where being devoted? These wharves were being used as berthing
places for public vessels belonging to the US, war ships, navy ships, etc. Therefore, the function,
the function that the US government was undertaking when it entered into the contract was
national defense and national defense is a governmental function. Therefore, the contract was a
contract in jus imperii. Therefore, no implied consent may be derived from such a contract.
Less than a year after US vs Ruiz, the Supreme Court decided four cases, all together,
two of them, were US vs Guinto and US vs Rodrigo. In US vs Guinto, the contract had to do
with maintaining a concession for a barber shop facility inside the base, barber shop. This time
the Supreme Court said, this is purely commercial, purely business, therefore the State may be

21

deemed to have given implied consent. After all, the service men of the United States Armed
Forces need not have haircuts, so yun. In a companion case, the case of US vs Rodrigo, this
had to do with the Camp John Hay in Baguio, when Camp John Hay was still a US Base. The
subject matter of a contract was another concession for restaurant facilities in Camp John Hay.
Again the Supreme Court said, this was a business contract and therefore, the US gave consent,
implied consent to be sued on such a contract.
We have a 2003 decision of the Supreme Court involving the Republic of Indonesia, in
the case Republic of Indonesia vs Bensons. Alright. The Republic of Indonesia maintains an
embassy here, of course, the ambassador and his family, the Indonesian ambassador and his
family, also have a residence. So, for the embassy, the offices of the diplomatic representatives
of Indonesia, the appropriate officer entered into a contract with a local contractor. Local
contractor for servicing of air conditioning units, electrical facilities, water facilities, yung kanilang
mga heater, kanilang mga ano pang kailangan dun sa water, eto for servicing for all of these,
alright. So, eventually there was a controversy and the Republic of Indonesia was sued or the
officer in charge was sued by the servicing company. The Republic of Indonesia intervened, said
that this was a suit against the State without consent. As usual at the lower court level, talo ang
Republic of Indonesia, and so the Republic of Indonesia went up to the Supreme Court. The
Supreme Court said, these service contracts entered into by the Republic of Indonesia are in the
nature of contracts in jure imperii because they have to do with the maintenance of the embassy
and of the diplomatic personnel of the Republic of Indonesia. Maganda, maganda ang kaso
dahil, it seems then from Republic of Indonesia vs Bensons, that you do not dissociate the
governmental function in running the embassy, it indeed is a governmental function in running the
embassy from the contracts for the maintenance of whatever service facilities there may be
needed for the maintenance or for the smooth operation of the embassy. So, jus imperii ang
contract, therefore, there is no implied consent given by the State in that respect.
Alright, in past years class, whenever, whenever I lectured in, on this, I always include
what Commissioner Heidi Yorac used to tell her students in the, when she was teaching
Constitutional Law, that was because Commissioner Heidi Yorac had always been a potential Bar
Examiner, now I dont think she is, or shes going to be the examiner, dahil may sakit daw si Heidi
Yorac, so, Im sure she will not accept, yan. Pero miski ganun, ganun parin ang buhok nya
(laughs), yun. Okay. When Heidi Yorac was teaching Constitutional Law, she would add a third
instance when the State is deemed to have given implied consent. The third instance according
to her when the State is deemed to have given implied consent is when the State takes private
property for public use. Because when the State takes private property for public use and the
State does not pay just compensation, then the property owner can go directly to court and
demand payment of just compensation. So, doon nya isinama sa implied consent yung
Mnisterio vs City of Cebu, Amigable vs Cuenca, Republic vs Sandiganbayan, dun nya
isinama yun, of course, those of us who are followers of Isagani Cruz and ano, dun natin, we treat
this as an exception, as an exception to Commonwealth Act 327. Either way, the property owner
can immediately go to court in order to demand payment of just compensation. Alright. So,
whenever the State gives consent, whether express or implied, the State can be sued because it
is deemed to have shed off its immunity. Okay.
Having shed off its immunity, however, does not mean that the State admits liability. That
is where your distinction between suability and liability lies. In order to make the State liable,
there has to be evidence presented by the claimant and of course the law must be on the side of
the claimant also, so that an award may be made by the court in favor of whoever the claimant
might be. Invariably, when it is the State that is sued, the State does not stop at the trial court,
the State goes all the way up to the Supreme Court and finally concedes liability only when the
Supreme Court says, wala na, talagang, liable ka State, you are liable, alright. So, when that
happens and the judgment becomes final, the next step is of course execution from your mastery
again of Remedial Law, execution, Okay.
Can the judgment creditor now execute on government properties or garnish since the
judgment is denominated in money, we are talking of money claims, since the judgment is
denominated in money, can a writ of execution or a writ of garnishment lie against bank deposits
of government or of that particular government agency found in Land Bank of the Philippines or in
DBP? Yun na ang depository banks ng gobyerno ngayon, Land Bank at DBP. The answer is, as
a rule, No. So the rule is no execution without consent. The Supreme Court has said, there is a
separate consent to execution. Consent to be sued does not include consent to execution,
except, in the case of incorporated agencies whose charters provide that they can sue and be
sued. In the case of incorporated agencies whose charters provide that they can sue and be
sued, the Supreme Court said, this charter provision that grants consent to be sued is also
consent to execution. It is also consent to execution. 2003 decision, National Housing
Authority vs The Heirs of Kiwi Londo, this is June, so ang aking 2003 decisions na sinasabi

22

puro ito, within the coverage except kahapon I think we took up Francisco, yun impeachment ni
Justice Davide, I think that is outside the coverage kasi November na yata yun, November 2003,
so forget about it, never mind. Although, technically when there is a decision that is as famous,
as the ruling of the Supreme Court in the Chief Justice Davide impeachment case, you are not
suppose to be bound, I mean, the examiners are not supposed to be bound by these cut off date
because the presumption is that you know. Everybody in the country knows about this, so you
should also know, okay.
In Heirs of Kiwi Londo, we have the NHA, the National Housing Authority is a corporate
agency. Its charter provides that it can sue and be sued, therefore, the Supreme Court said, it
cannot hide behind the general doctrine on no execution without consent, because that provision
that it can sue and be sued is already consent not only to sue but also to execution. Although
incorporated agencies whose charters provide that they can sue and be sued, may, the properties
or funds of such incorporated agencies may be garnished. We have an exception to the
exception, the case of local government units. Yesterday we said, cities, municipalities,
provinces and baranggays, are corporate and political agencies of government. As corporate
agencies, they have corporate powers. Under section 22 of the Local Government Code, local
government units can sue and be sued. The Local Government Code is in the nature of a charter
of all local government units, therefore, following this rule, local government units when made
liable under a an executory judgment should yield to garnishment in so far as funds give, I mean,
deposited in a bank.
But the Supreme Court, in the case of Municipality of San Miguel Bulacan vs
Fernandez, said, funds of local government units whether they are deposited in a bank, whether
they are in the nature of a special or general deposits are public funds. As public funds, they
cannot be garnished unless there is an appropriate, there is a corresponding appropriation
ordinance duly tasked by the Sanggunian of the local government unit concerned, appropriating
that money in order to satisfy the money judgment. So, if you have a money judgment against a
local, against the City of Manila for example, you have to wait for an appropriation ordinance to
be passed by the City Council, the City Sanggunian or the Sanggunian Panglungsod of the City
of Manila before you can garnish money deposited in the bank in the name of the City of Manila.
In another 2003 decision, another June 2003 decision, in the case of City of Caloocan
vs Alliarde, the Supreme Court, I am sure, dito naman meron silang ginagawa sa San Beda na
ano, yun digest and cases of 2002, 2003, covered by the ano at ibinibigay naman sa lahat yan,
kayong mga hindi taga San Beda, huwag kayo maniwala dun sa mga sinasabi na yun mga taga
San Beda lang ang binibigyan kasi kung minsan hindi talga binibigyan yun mga taga San Beda
ng ano, everyone is suppose to have copies of these, I am sure that eventually, eventually, that
means mga September 30 siguro, you will have copies of these digest of the cases. So, these
cases that we are discussing, itong mga bago I am sure will be in your handouts. If they are not
in your handouts, then that means I am not sure, alright. In City of Caloocan vs Alliarde, the
question was, upon suit of Santiago there was a decision granting him an award for payment of
back salaries. It was shown that there was already a City ordinance duly passed, duly passed by
the City of Caloocan, appropriating more than P490, 000, 00, precisely to cover this amount
claimed by Santiago. Thus, when an attempt to garnish, attempt to garnish the funds deposited
in the bank belonging to the City of Caloocan, was opposed by the City of Caloocan, the case
again have to go all the way up to the Supreme Court, the Supreme Court said, teka meron na
kayong, there is already an ordinance, an appropriation ordinance. So, class, when you speak of
execution without consent, when is there suppose to be consent? If it is a local government unit
there has to be an appropriation ordinance. If it is a national government agency that is sued and
is made liable under a judgment, then the consent has to be found in an appropriation law, a law
appropriating the amount in order to satisfy the money judgment, that is your consent. Precisely,
here in City of Caloocan vs Alliarde, that municipal, that city ordinance was in effect consent,
consent on the part of the City of Caloocan to have execution done against it. Now, be that as it
may, where the local government unit has no, has not, made an appropriation ordinance, what is
your remedy if you have a money judgment against the local government unit?
In Municipality of Makati vs Court of Appeals, the Supreme Court said, you do not
have to lobby and lobby with the, with the members of the Sanggunian, the way things are,
pagpunta mo sa members of the Sanggunian, tatanungin ka, "bakit magkano ba yang judgment
mo?" "Abay konti lang ho, P10 Million lang", "e magkano naman ang amin dyan?" "Isipin nyo
sampu kaming konsehal, kailangan naman naming ng ano, malapit na pati eleksyon". So, in the
Municipality of Makati vs Court of Appeals, the Supreme Court said, hindi ka na kailangan
gumawa nyan. What is your remedy? An action for mandamus. An action for mandamus
against the Sanggunian to compel the Sanggunian, compel the Sanggunian, to pass the
corresponding appropriation ordinance so that your money judgment may be satisfied.

23

Let us jump from here to the law of Public Officers briefly, class. In the Law of Public
Officers, on the classification of powers of Public officers, one of the classifications is precisely
the classification of powers into ministerial and discretionary. And you have been told, many,
many times over, that only a ministerial power may be compelled through mandamus. That as a
rule, a discretionary power may not be compelled through a writ of mandamus, that is true. But
later, the Supreme Court, starting with BF Homes vs National Water Resources Council, said,
a writ of mandamus may lie in order to compel the exercise of the discretionary power, but not the
discretion itself. Note, note, what happened in BF Homes, ganito nangyari sa BF Homes, BF
Homes was in the business of developing subdivisions. In each of the subdivisions, magtatayo
ng water system, malaking tanke, must often it is a concrete tank. And then as developers, they
connect the water, the houses, the individual houses to the water tanks so that water may be
furnished each of the houses in the subdivision. But in each subdivision, there was, before the
water system could really become operational, there was the requirement that this water system
set up must be approved by the National Water Resources Council. So, BF Homes had ongoing
projects, several ongoing projects and for each of the projects, BF Homes had applied with
National Water Resources Council for approval of the water system in each of the subdivisions.
The National Water Resources Council delayed, delayed, and delayed, action on the application
of BF Homes. BF Homes went to court, on an action for mandamus to compel the National Water
Resources Council to act on the applications. The Supreme Court granted the writ of mandamus
compelling to compel the National Water Resources Council to act on the applications, not to
compel the council to approve, not to approve, but to act. The discretion still lay with the council
to approve or to disapprove, what the writ of mandamus commanded the council to do was to act
on the applications, but the court did not dictate on how the discretion was to be exercised,
alright. Here, Municipality of Makati vs Court of Appeals, a writ of mandamus will lie not only
to compel the Sanggunian to act but to pass, to pass an appropriation ordinance. It is a writ of
mandamus that will compel not only the exercise of the discretionary power but even the
discretion it self, even the discretion it self.
This is how the court apparently found a way of giving justice, kasi kawawa rin naman,
isipin nyo, you file a suit against the City of Manila, aabutan ka ng 12 years bago na-desisyunan
ng Supreme Court, pagkatapos meron ka ng judgment, hindi ka pa rin makakasinggil dahil, all the
funds of the City of Manila are public funds. And then you go back to your lawyer and you ask
your lawyer to file a petition for mandamus to compel the City council to pass an ordinance.
Aabutin nanaman kayo ng siyam-siyam, another 12 years siguro, bago ka makakuha ng,
nakarating sa Supreme Court, ayun, 24 yrs have passed, ang iyong money judgment,
denominated in peso of course, the peso 20 years ago is probably worth P50 now. Ganun ang
mangyayari, so, so, I think this is the way by which the court really have to file a remedy for those
who had won already their cases against local government units, pagkatapos ano, pero notice,
hindi sinabi ng Supreme Court na, you go back to the same court where you got your money
judgment and ask for a writ, no, you file a new case for mandamus. Kasi ang Supreme Court
kampi rin sa mga abogado, in other words, you pay your lawyer also. Even before you are able
to withdraw from, to collect from the City of Manila, you first pay your lawyer, the Supreme Court
is bias in that respect. I think that is why many of you want to be lawyers because things like
these , alright. So, ganun ang, our having to divert to the Law of Public Officers is because we
might, when we talk about discretionary and ministerial powers later, we might even fail to
mention this, alright.
Just one more case and then we go to the next subject, Pacific Products vs Ong, A filed
a suit against B, A and B are both private individuals. A filed a suit against B for a sum of money
which B owes A, very simple, very simple case of collection, okay. A knows that B has so many
debts that he is on the verge of insolvency, he is on the verge of running away, etc. So when A
filed his complaint, it was a complaint with a prayer for the issuance of a preliminary writ of
attachment, which you have also mastered already. When can you pray for the issuance of a writ
of preliminary attachment when you file a complaint? Alright. I know you know that already, you
just do not want to say it, alright. Okay, so, A claimed that B was about to abscond and on the
basis of that claim the court issued a writ of preliminary attachment. A asked the sheriff, Sheriff,
maghanap ka ng property, let us attach those properties as security for the favorable judgment
we expect from the case. Unfortunately, they could not find properties of B. So, wala silang
nagawa, they could not serve the writ of preliminary attachment on anything. And then A learned
that B had an existing contract with the Bureau of Telecommunications. Under the contract, B
was supposed to supply the Bureau of Telecommunications copper wires, and A learned that B
had already delivered copper wires and that the Bureau of Telecommunications was ready to pay
B the amount of contract. Nag panic agad si A, pag nalaman ng ibang creditors ni B wala rin
tayong aabutan, bilisan mo sheriff, garnished that amount while it is still in the hands of the
Bureau of Telecommunications, garnish the money there, para abutan natin at tayo ang may
preference later, pagnanalo tayo sa kaso. The Bureau of Telecommunications and B opposed
this garnishment. On the issue of whether or not the garnishment of the money in the hands of
the Bureau of Telecommunications was proper, the Supreme Court said, when money in the

24

hands of a third person is garnished, that third person becomes an automatic impleaded
defendant, automatically as it were, the garnishee is impleaded as a defendant. Accordingly, the
A, the case of A versus B with the garnishment, now effectively is A versus B and Bureau of
Telecommunications. Now, the Supreme Court said, the Bureau of Telecommunications is an
incorporated agency of government performing governmental functions, therefore, the
garnishment of the money in the hands of the Bureau of Telecommunications was a suit against
an incorporated government agency performing governmental functions. Since it was without
consent, this is therefore, a suit against the State without consent. Therefore, the garnishment is
improper because it is a suit against the State without consent. Now, okay, so, I am, today
because of the rains, I am positive that there would be, about 95%, there would be a question on
the State immunity from suit. So, that takes care of the Philippines as a State, we move on the
fundamental powers of the State.

FUNDAMENTAL POWERS OF THE STATE

As you very well know, the fundamental powers of the State are Police Power, Power of
Eminent Domain and the Power of Taxation. As I said last night, we will talk only about police
power and eminent domain because you have mastered taxation already. So, ang dami nyo ng
na master eh, alright. Similarities, hindi naman siguro, hindi siguro itatanong naman ito, inherent
powers ito, there is no need for Constitutional grant. These are powers that are necessary, the
powers, the methods by which the State interferes with private property.
Each of the powers presupposes adequate compensation and of course, all of the
powers are exercisable by legislature. In so far as the distinctions are concerned, police power
and taxation may be performed, may be exercised only by government, while, eminent domain
may be exercised by a private entity performing public services. Police power may restrict both
rights to life, liberty and property, while, taxation and eminent domain merely speak of property.
On the matter of compensation, on the matter of compensation, in police, in taxation, the
compensation derived by the tax payer is theoretically the protection and the services given by
government, in eminent domain, it is money paid by way of just compensation. In the case of
police power, the property owner derives only the intangible altruistic feeling that he has
contributed to the public good. We will see that very clearly.
Police Power
General Principles
Police power is the power of the State to promote the general welfare by restricting and
regulating the rights to liberty and property. It is suppose to be the most pervasive of all these
fundamental powers base on the Latin maxims salus populi est suprema lex, and sic utere
tuo ut alienum non laedas, which you know very well already. The welfare of the people is the
supreme law, so, use your property that you may not injure others.
Notice that in the course of the decisions of the Supreme Court, the Supreme Court has
in the many cases that it has upheld the primacy of police power, said, that police power is so
pervasive that it may not even be bargained away through the medium of a treaty or a contract.
And so, in the case of Ichong vs Hernandez, the Supreme Court said, that a Retail Trade
Nationalization Law, being a law passed in the exercise of a police power may even prevail over
the treaty entered into by the Philippines with the Republic of China, Taiwan, it is the treaty of
trade, amity and navigation. Although the Supreme Court said, there was really no conflict. Note,
that taxation may be used merely as an instrument of the police power.
In the case of Lutz vs Araneta, the assessment collected from sugar planters was such
an example, it was really intended to help fund what the government needed by way of lobby
before the US congress to have increased sugar quota in the Philippines. And in the case of
Association of Small Landowners of the Philippines vs Secretary of Agrarian Reform, the
Supreme Court said, that eminent domain may also be used as an instrument in order to promote
the police objective.
A police power legislation, legislation passed in the exercise of police power may be
given retroactive effect. In Philippine National Bank vs Office of the President, the Supreme
Court said, that the subdivision and the condominium buyers decree, Presidential Decree 957,
was one such example. It could be given retroactive effect in that, contracts entered into prior to
the promulgation of the decree could be effected precisely by the decree. Class, para lang

25

makasiguro lang ako na medyo nagkakaintindihan tayo ng maigi. Police power is the power of
the State to promote the general welfare by restricting, regulating, controlling and even
sometimes destroying properties, as well as, the rights, the rights to liberty and property. What
are we talking about here, what are we talking about, in my case for example, I smoke, I enjoy
smoking. It is the only joy left for me, you know, in my life, smoking. Here comes Congress,
huwag na lang itong mga local governments, Congress, here comes congress and says,
henceforth, it shall be unlawful to smoke in enclosed public places. Here is congress saying that I
can no longer smoke it a place such as this.
July 6, 2004
If smoking causes cancer, if I smoke here, I smoke, you do not, and you inhale secondary
smoke, you will have greater chances of contracting cancer than I, biro nyo yan. So, yan ang
sinasabi nila. Look, here comes Congress, here comes the State, interfering with me, interfering
with my right, interfering with my pursuit of happiness, for what reason? In order to protect the
public health, in order to promote the general welfare. And so, what do I get? What do I get?
Kaya ang compensation, Im supposed to, to receive adequate compensation. Sabi ng Supreme
Court, your compensation is in the intangible altruistic feeling that you have contributed to the
public good, anong ibig sabihin nun? Ang aking compensation, yung aking paniniwala na, ay
nakutulong din ako, na di mag ca-cancer itong mga kukuha ng bar, kaya okay na lang, payag na
rin ako sa panghihimasok ng estado sa akin, which reminds me class, this story of two very, very
close friends, talagang magkaibigang-magkaibigan ito. One was a heavy smoker, the other did
not smoke and so the non-smoker was always alert, natatakot sya, mamatay tong kaibigan ko sa
kakasigarilyo, so, whenever his friend smoke, nangangalahati pa lang ng sigarilyo kukunin nya na
at aapakan nya na, papatayin. Ganon lagi ang ginagawa nya, that is what he did. To make the
story short, it was the non-smoker who died first, what did he died of? Cancer of the foot, alright,
okay. This is, that is, what police power means.
So, when the State, when the State for example, orders the destruction of an
unwholesome property, of a nuisance, in the exercise of police power, the owner of that property
loses the property because the property is condemned and destroyed, loses the property. The
State has interfered in his property rights and yet, he cannot complain because the destruction of
his property was made for the benefit of the greater number, for the general welfare, that is what
police power is all about. It does not concern, yung pagdadakip ng mga police, or yung
pangkikikil ng iba dyang mga police upang ano, it does not include that, okay.
Who Exercises Police Power?
So, who exercises police power? Congress! The Legislature, but, the Legislature might
delegate this power to the President, other administrative bodies and to local government units
through their respective Sanggunians. When Congress exercises police power, what does
Congress do? Congress passes a law or a resolution. When the President exercises delegated
police power, what does the President do? He issues, she, she issues, she, kala ko yung isa ang
nanalo, she issues Presidential decrees, executive orders, etc. When administrative bodies
which are delegated with the police power exercise police power delegated police authority, what
do they do? They promulgate rules and regulations which may be denominated circulars,
memoranda, office orders, department orders, whatever else they may be called.
When local government units exercise delegated police authority, what do they do?
Through their respective Sanggunians, they pass ordinances and resolutions. Therefore, class,
the exercise of the police power entails the exercise of legislative and quasi-legislative powers.
What am I leading up to, class? I am just trying to tell you that the police power can not be
exercised by the police because the policemen do not have legislative or quasi-legislative
powers. Huwag nating isali yung mga police dito, hindi kasali sila dito sa pinaguusapan nating na
police power, even if they are called police, alright. So, we understand, we understand, that there
is an intervention, interference by the State, in rights of individuals in order that the general
welfare may be protected or promoted.
Limitations in the Exercise of Police Power
So, what are the limitations on Congress in the exercise of police power? There are only
two limitations. First, the interest of the public in general as distinguished from those of a
particular class require the exercise of the power. And second, the means employed are
reasonably necessary for the accomplishment of the purpose and not unduly oppressive on
individuals. The first, Justice Cruz calls, lawful subject, the second, he calls, lawful means,
alright. With respect to the first, lawful subject, the Congress has so much discretion, it is virtually
full of discretionary authority to decide which may be subjects of police legislation, the only
limitation is the general welfare, the interest of the public in general, that is the only limitation in so
far as the first, first criterion is concerned, okay.

26

So, you see, there has to be some kind of rational basis for choosing the subject of
police legislation. For example, if congress were to pass a law today, prohibiting all female
persons from eating mangoes because according to Congress, mangoes are carcinogenic when
eaten by female, not so when eaten by the male. While ostensibly, ostensibly, the intention is to
promote the general welfare, to protect women from cancer, there is no basis at all for this
premise of protecting them because there is not even an iota of medical evidence to show that
mangoes when taken by women will really subject them to cancer. So, yun, that is a limitation.
That part of the limitation in that general principle that the interest of the public in general as
distinguish from those of a particular class require the exercise of the power.
Now, with respect to the second, there are two things in the second on means. First,
the means must be reasonably necessary for the accomplishment of the purpose, what does that
mean? That means that because, because you restrict this, you therefore, accomplish this. In
other words, there must be a causal connection between the means employed and the objective
sought to be accomplished. The law prevents me from smoking here, that is the means
employed by law, include having to prevent me from smoking in this enclosed area. Does this
lead to the objective? YES! Because then, those of you who are here, will not inhale second
hand smoke which could subject you to the danger of contracting cancer, yun. In the case of
Ynot vs Intermediate Appellate Court, even as the letter of instruction issued by then President
Marcos, was supposed to have been valid in so far as the subject was concerned because the
intention was to prevent the an indiscriminate slaughter of carabaos. What did the letter of
instruction say? Henceforth, it shall be unlawful for anyone to move a carabao from one province
to another or even carabao meat from one province to another without obtaining the
corresponding permit from the Bureau of Animal Industry. Sabi ng Supreme Court, let us look at
the means, and the objective. The objective is clearly legal and valid, to prevent the
indiscriminate slaughter of carabaos because carabaos are the farmers best friend, okay. But,
sabi ng Supreme Court, how do you prevent the indiscriminate slaughter of carabaos by
prohibiting movement of carabaos, when caraboas cannot be slaughtered in one province or in
another? You do not have to move a carabao from one province to another to slaughter it. So,
the Supreme Court, there being no causal connection between the means employed and the
objective sought to be accomplished, the law is therefore, an invalid exercise of the police power,
yun.
The other, the other half of the second limitation is, not the means must not be unduly
oppressive on individuals, not unduly oppressive on individuals. Ang isang naging kaso nito, was,
asked in the last bar exams, I think, the case of Balaguit vs CFI Adagusan. Although, it was not
a law passed by Congress, it was an ordinance passed by the City government. Ganito, eto lang
ha, ordinance passed by the city government prohibiting all cinema owners by charging more
than half of the regular entrance fee to movies for children 12 yrs old and below. Masyadong,
parang reasonable, parang reasonable naman talaga, parang may katuturan at may rason dahil
mga bata naman kaya kalahati lang. Imagine, this went up all the way to the Supreme Court, the
Supreme Court said, invalid exercise of the police power, unduly oppressive on cinema house
owners. Hindi ko rin maintindihan ito, but then when you go to a movie house with child, you
occupy a seat the child also occupies a seat, hindi naman kalahati lang ang ino-occupy niya,
okay. Nanonood siya ng sine, hindi naman kalahati lang din, tinatakpan ang isang mata, baka
yun ang gustong sabihin ng Supreme Court na ano, unduly oppressive daw yung ordinance na
yun, alright. So, there are so many, so many cases already decided by the Supreme Court on
what is a valid exercise of the police power, what is not and there are instances where there is by
a declaration by the Supreme Court that what purports to be an exercise of the police power is
not really an exercise of the police power but an exercise of the power of eminent domain. We
will discuss those cases, if you have those cases in a little while. Meantime we move on.
When Exercised by Delegates
What about delegates? What are the limitations on delegates of Congress when they
exercise delegated police authority? In the case of administrative agencies, what are the
limitations on the rules and regulations that administrative agencies may promulgate or may
issue? There are four basic, four basic limitations or requisites for the validity of
administrative rules and regulations and there are two additional requisites if violation of the
administrative rule will incur in a penal liability. What are these?
Number 1, there must be express authority granted by law to the administrative agency
to issue rules and regulations;
Number 2, the rules and regulations must be within the purview, within the scope and
purview of the law;

27

Third, the rules and regulations must be reasonable;

Fourth, the rules and regulations must be published. By published, is meant publication
in the Official Gazette or in a newspaper of general circulation, except, when the administrative
rule or regulation is an interpretative rule or regulation, we will go into that much, much later.
Interpretative rule or regulation in which case or, or, or if the rule or regulation is made to apply
only internally within the agency, in which case publication in a conspicuous place in the agency it
self may comply with the rule on publication.
Now, if violation of the administrative rule or regulation will incur penal sanction, then
there are two additional requisites:
Number 5, the law itself. Not the rule, the law itself must provide that violation not
only of the law but violation also of the rules promulgated pursuant to the law shall be
punishable;
And number 6, the law itself must prescribe the penalty for the violation, not only of
the law but also for the violations of the rules and regulations which are issued pursuant to such
law.
Those six are the requisites for the validity of rules and regulations which an
administrative agency may issue in the exercise of delegated authority, delegated police authority.
Now, what about local government units?
Exercise of Police Power by the Local Government Units; Requisites
First, a local government unit must be given express, express authority by law. I would
like to call your attention to Section 16 of the Local Government Code, Section 16 of the Local
Government Code is known in law as the General Welfare Clause. Note the term, general
welfare. This is a general grant of authority to government local units to do whatever it can for
purposes of promoting the general welfare. It is the general welfare clause, and this is among
others, because there are separate provisions there for each of the local government units which
also partake of a grant of police authority. But, this is the general grant of authority expressed,
general expressed grant of authority to all local government units, what we call the general
welfare clause. Then of course, class, a local government unit can not normally extend the
effectivity of any ordinance passed in the exercise of police power beyond the territorial limits of
the local government unit. Except of course, when the exercise of the police power is intended to
protect water supply, in the instances when a water supply of a local government unit is found
outside the territorial jurisdiction of the local government unit it self. Then in the case of, well, the
most recent of these cases is Mayor Magtahas vs Pryce Properties. In Magtahas vs Pryce
Properties, the Supreme Court, enumerated six requisites for the validity of ordinances passed by
local government units. They could very well be, the 6 limitations on the exercise of delegated
police authority to local government units. What are these six?
Number one, the ordinance must not contravene the constitution or any statute;
Number two, the ordinance must not be unfair or oppressive;
Number three, the ordinance must not be partial or discriminatory;
Number four, the ordinance must not be unreasonable;
Number five, the ordinance must not prohibit, although it may regulate trade;
And number six, the ordinance must be general in application and consistent with
public policy.
Let us just take these six briefly. The first is a little bit difficult, unless, unless you have
focused. I am not at all afraid that you would miss out on a problem where the ordinance is
contrary to the Constitution. I am more or less, secure in the thought that you have mastered the
Constitution enough to immediately discern any thing wrong in an ordinance that violates the
Constitution. That is how much confidence I have in you, alright. But in the matter of the
ordinance violating a statute, violating a statute, medyo may kahirapan ng konti yun. The Bedan
students here will of course know Justice Bernardo Fernandez, who was their professor in a
number of subjects. But Justice Bernardo Fernandez, who was Bar examiner in Political Law in
1978, that is how old the Bar Exams are, alright. One of the questions, ang ganda-ganda ng
exam ni Justice Fernanandez nun, only twenty questions, at lahat five percent, five percent.
Twenty questions lang lahat, saka ano, pero, saka maiiksi ang kanyang mga tanong, maiksi ang

28

tanong ang demand niya mahahaba ang sagot. Pero anyway, ang tanong, tungkol dito, the
Municipality of Paranaque, Municipality pa noon, the Municipality of Paranaque, passed an
ordinance for the establishment of a red light district in Paranaque, ostensibly to protect public
health, public morals, because of course, there will be periodic medical whatever, periodic
medical examination, etc., etc. Is the ordinance valid? Explain your answer, five percent. Even
now, Justice Fernandez does not get tired of telling us that he had all kinds of answer when he
read the booklets. The answer he cannot forget is this, Yes! The ordinance is valid because the
establishment of a red light district in Paranaque will ease the traffic congestion in the area. Kaya
sabi nya, ibinagsak ko yun, mukhang lalaki pa man din daw ang sumulat. Imagine, sabi nya
mag-aabogado ito hindi man lang alam. But the correct answer of course is, NO! No, the
ordinance is not valid because the establishment of a red light district in Paranaque would in
effect legitimize prosecution, prostitution and prostitution is a felony punished under the Revised
Penal Code. It is as if Paranaque had by establishing a red light district amended the Revised
Penal Code, yun, five percent na yun.
And so, for example in the matter of, ito ngayon, suppose, suppose a Municipality passes
an ordinance for the establishment of a casino, the proceeds from which will be used to fund the
hospital and to provide free medical attention to the poor in the Municipality. Will it be valid? No!
Of course not. It will not be valid because gambling, that would legitimize gambling, and
gambling is punished as a felony in the Revised Penal Code. You will probably ask, o bakit yung
PAGCOR, let me call your attention in PAGCOR, PAGCOR operates these casinos all over the
country, but it operates under a franchise issued by Congress, Congress can amend the Revised
Penal Code, a local government unit can not. That is the difference, that is the difference. In still
one case, the Supreme Court said, when the City of Dagupan passed an ordinance, passed an
ordinance, ito, Supreme Court decision ito, passed the ordinance requiring all subdivision
developers and subdivision owners to submit to the City Engineer for approval all plans for
development of subdivisions in Dagupan and, medyo okay pa yun, hanggang doon, okay pa yung
ordinance, and imposing a fee of 30 centavos for every resulting saleable square meter of lot in
every subdivision. The Supreme Court said, the City of Dagupan in effect is trying to amend the
subdivision law, a national law passed by Congress, that cannot be allowed because the
ordinance was contrary to an existing statute. The ordinance was stricken down as invalid
exercise of the police power, alright.
Second, it should not be unfair or oppressive, this goes into the means, this goes into the
means. Yung means kanina na pinaguusapan natin, must reasonable necessary for the
accomplishment of the purpose and must not be unduly oppressive on individuals.
The third, what is the third? The third is, it must not be partial and discriminatory. From
your mastery of the doctrine of equal protection of the laws, I am sure you can, you can
determine whether there is partiality or discrimination in the rule, in the ordinance.
Number four, it must not be unreasonable. Perhaps the best example is Lupangco vs
Court of Appeals, although it does not involve a local government unit, okay. Ano ang nangyari
sa Lupangco? This had to do with an, with a resolution passed by the Professional Regulation
Commission through the Board of Accountancy. It seemed that at that time, there were so many
rumors that there were leakages in the licensure examination for Certified Public Accountants.
Because of this, the PRC through the Board of Accountancy passed a resolution to this effect, no
review school or review center giving review classes to CPA, to candidates for the CPA licensure
exam, shall conduct special lectures or give special handouts two days before the exams. No
candidate for the CPA licensure exam shall attend any of these special lectures or shall receive
any handout or tip or whatever, yun. Sabi ng Supreme Court, that is clearly unreasonable, is
clearly unreasonable. In the first place, it is a violation of the due process clause in so far as the
review schools are concerned. Second, it is clearly unreasonable. The board of accountancy did
not take into consideration the very nature of those who are going to take the exam. They will go
to great lengths to get to have tips and whatever. And so, this was stricken down as an invalid
exercise of the police power. Sabi ko ano kaya kung dito nangyari sa bar ito, sabihin, bawal
manghingi, tumanggap ng tip. Eh pag sabado na ng gabi, bago mag-linggo, parang mga ano na
yan, may tip dito, may tip, this come directly from the horses mouth. Bibigyan ka ng tip na
ganyan, bandang alas dyes na dapat matulog ka na eh, hahanapin mo ngayon, saan kayo itong
hayop na ito. Sa kakahanap mo inabot ka ng alas tres ng madaling araw, di mo parin makita,
hayop saan kaya ito, hindi ka makatulog, pag dating mo sa La Salle, doon ka natulog, hay naku
(laughs). On top of that, on top of that, hindi naman lumabas yung tip nayun, because it did not
only come directly from the horses mouth, it came from a horse! (laughs), hay naku. Ay ewan ko
lang, so, my first tip is, you should sleep early Saturday night so you dont fall asleep in La Salle,
alright.
Number five, the ordinance should not prohibit although it may regulate trade. Dela Cruz
vs Paras, the matter of Bocaue, Bocaue had acquired the dubious distinction of being the night

29

club capital of the Philippines. I am sure many of the gentlemen here know about this, alright.
Never mind, do not raise your hands, alright. But a great tragedy befell Bocaue, on the occasion
of its town fiesta, which would regularly be punctuated by a fluvial parade, a fluvial procession.
Meron silang raft na merong pagoda, naroon yung poon, punong-puno yan ng tao pati mga bata
na nagflu-fluvial procession and, on that faithful fiesta, the pagoda over turn, the raft over turned
and more than 200 people mostly children died. The old people in Bocaue said, Ga-ba, sa amin
in bisaya, Ga-ba, because people in Bocaue are not thinking of anything else except about the
money they get from the night clubs, women, drinking, etc, etc. The local council, the Municipal
council of Bocaue reacted also and passed an ordinance prohibiting the establishment,
maintenance and operation of any new night club because of course they could not simply cancel
the permits and licenses of existing night clubs. But no new night clubs, absolute prohibition.
The ordinance was challenge all the way up to the Supreme Court, and the Supreme Court said,
the ordinance is invalid. It is an invalid exercise of the police power because the establishment,
maintenance and operation of a night club is a legitimate business, it is allowed by law. When an
activity is allowed by law, the ordinance cannot prohibit the activity, it can only regulate. Since the
ordinance was coached in terms that would prohibit, the ordinance is prohibitory not simply
regulatory. If the ordinance were merely regulatory, like it said, no night club shall be established,
maintained or operated within 200 meters from the church because the priest might frequent the
night club. If it were only be regulatory, regulatory lang, that would not be, it would have been a
valid exercise of the police power but because the ordinance was totally prohibitory, it was
deemed invalid, alright.
So, number six, number six is, must be general in application. Again, this goes into the
first of our limitations on police power in Congress. The interest of the public in general, general
application is consistent with public policy, consistent with public policy, even laws are required to
be consistent with public policy, alright.
Power of Eminent Domain
So, we move on to the next fundamental power of the State which is eminent domain.
Eminent domain is the power of the State to take private property devote the same to public use
upon payment of just compensation. And so, quite unnecessarily, Section 9 of Article 3 speaks of
almost the same thing, private property shall not be taken for public use except upon payment of
just compensation, alright.
General Principles
General principles, first, the power is greater than that of the courts in ejectment
proceedings. Second, since the power of eminent domain involves, in most cases, the transfer of
ownership and title over property subject of eminent domain. The Supreme Court said, there is
no reason why our agency which had been granted the authority or the power to exercise
eminent domain cannot exercise the power to demand for a right of easement or an easement to
a right of way. The Supreme Court said, if eminent domain can even, can even, transfer, effect
transfer of ownership, with greater reason can the expropriator demand only a lesser burden on
the property such as an easement of a right of way. Then of course, class, in 2003 case, which I
think at least in so far as this is concerned, that the doctrine is a mere reiteration. It is the
Regional Trail Court that has jurisdiction over eminent domain cases. The Regional Trial Court
has jurisdiction over eminent domain cases irrespective of the value of the property sought to be
taken.
Who May Exercise Power Of Eminent Domain
The case of Bardello vs Macille, a 2003 decision, but this is a reiteration of something
that has already been decided by the Supreme Court, alright. Before this, perhaps, yung
munang, who may exercise the power of eminent domain? Congress nanaman, as we said,
Congress, it is the legislature. But the legislature can delegate this to the President, to other
administrative bodies, to local government units and even to private enterprises performing public
services. And this, distinguishes eminent domain from the other fundamental powers in that the
power may be exercised even by a private enterprise. Class, before we go to discussion from the
Constitutional Law point of view, I would like you to recall the rules of court provisions on eminent
domain. Kasi para makita ang ano, makita ang proseso, the process.
Government, assume government is the one exercising, whatever government,
government lang, okay. The government wants to take a parcel of land because they, the
government would like to put up a government building needed, etc., etc. The first step normally
is for government to negotiate with the owner of the parcel of land. Bibilhin naming yan, how
much are you willing to sell your property for? So the owner says, How much are you willing to
pay? and government says, We are only willing to pay so much, which is almost always a very,

30

very, low price. So, the owner says, I cannot sell this to you at that price, and so government
says, If you dont sell, then we will expropriate.
Incidentally, class, the power of eminent domain is also known as the power of
expropriation, expropriation, okay. We will expropriate. Sabi ng owner, eh, wala na tayong
magagawa, maglalaban-laban na lang tayo, okay. What does government do? Government
files a complaint in eminent domain. Almost, always, the complaint is already accompanied by a
certificate of deposit issued by a bank showing that the expropriator has deposited at least 15%
of the alleged market value of the property as appearing on the tax declaration. Summons are
issued, summons is issued to the property owner and the property owner may answer. Under the
rules, he may file a motion to dismiss instead of an answer even as that motion to dismiss
alleging grounds that it will talk about the requisites for the valid exercise of the power of eminent
domain. Alleging any of those grounds and even if the complaint is not dismissed that motion to
dismiss shall already take the place of an answer. Where upon, the government files a motion, a
motion for a writ of possession, so that government may be allowed by the court to enter the
property already and effect development works already even as the case has not been scheduled
yet for its first hearing or whatever. And as a normal course, the court issues that writ of
possession or writ of entry and so, the expropriator enters the property, introduces improvements
on the property already and dispossesses the property owner. Kasi meron ng court order
allowing entry into the premises. In the meantime, naghahanda lang ang property owner ng
kanyang mga sasabihin sa court. Then the Trial Court schedules this for trial and in almost, well,
in the great majority of cases, the issue boils down to just compensation, how much? And so, the
property owner proves or attempts to prove that the property is worth this much. The government
tries to put down the property as low as it can. In the meantime, while the case is ongoing, the
property owner was already been dispossessed of his property. Ang naka-occupy na ang
expropriator, that is why in the motion for reconsideration, in the case of Land Bank of the
Philippines and the Secretary of The Agrarian Reform vs Court of Appeals, one of the
questions raised to the court was, given this situation, can the property owner also withdraw the
money deposited in the bank? He is the property owner, he has already been dispossessed of
his property and expropriator na ang nakatira doon, wala na sya, oh, ito 15% lang ang nakadeposito, can he not withdraw, can he now withdraw this? And use it also just as the expropriator
is already using his property. In that case, in the resolution on the motion for reconsideration in
that case, Land Bank, et al vs Court of Appeals, the Supreme Court said, Yes! Yes, it is only fair
that the property owner be allowed to withdraw the money deposited in the bank and use it
because after all, wala na rin syang property, naroon na rin, and ang kadalasan ang pinaguusapan na lang, ang pinagtatalunan na lang, how much by way of just compensation will be paid
to the property owner, alright.
Requisites
The requisites for the ordinary general exercise of the power of eminent domain, there
are six basic requisites. First, necessity. Second, the property taken must be private property.
Third, there has to be taking in the Constitutional sense. Fourth, the property must be devoted to
public use. Fifth, there must be payment of just compensation and sixth, there must be
compliance with due process of law.
Necessity. In the leading case on the issue of necessity, in the leading case of
Republic vs La Orden de Padres Benedictinos Pilipinas, we are talking about the
Benedictines here. The Supreme Court said, in fact the Supreme Court remanded the case
which had already been appealed to it, remanded the case to the trial court so that the trial court
may makes its finding on the issue of necessity.
Apparently, therefore, the question of necessity is a justice able question, it is within the
prerogative of the court to determine whether or not it is necessary to undertake this
expropriation. And in that case of Macille 2003, the Supreme Court said, the RTC may therefore
make a finding on the issue of necessity. It is in fact the trial court that should make such a
finding on the question of necessity. However, class, in the case of the Municipality of
Meycauayan vs Intermediate Appellate Court, the Supreme Court said, when it is Congress
itself undertaking eminent domain or the eminent domain is undertaken upon direct directive
orders of Congress, the issue of necessity becomes a political question, political, alright.
What do we mean by necessity? These criterion on necessity means that the, it is
necessary to take this particular property for the particular public use to which it is to be devoted.
In other words, this is the ideal property for this particular public use and therefore, it is imperative
and necessary that this property be the one taken by the expropriator for the given purpose.
When I was teaching in the undergraduate years, this is the example I would give to illustrate this
matter of necessity. National highway, a very big baranggay here, kung bakit naman dito lang sila
sa kabila ng high way nakatira, the poblacion is here, the only high school in the town is situated

31

more than 4 kilometers away from the baranggay. The children have to take a ride or walk all the
way, those who are studying in high school have to do that. The local government unit, the
officials of the town say, dapat siguro makipag negotiate na tayo sa Department of Education, let
us put up a high school in that baranggay, para naman yun mga bata, we have so many children
there, hindi na pupunta sa poblacion, they can already go to high school right in the baranggay
and it seems okay. So they said, o sige mag ano tayo, who are the owners of the property facing
this, dahil mukhang hindi nagbebenta yun mga may-ari nyan. Ito ang properties dyan, ito ang
may-ari, si A, si B, C, D, E, F, G, H, I and J. O, negotiate with any one of them, nobody wants to
sell. So, the Mayor says, we have to expropriate, Sanggunian, you have to pass the
corresponding ordinance granting the authority to file the case in court, okay, granted. Ngayon,
sabi ni Mayor sa kanyang Vice-Mayor and sa kanyang, yun kaninong property yun kukunin natin?
Eh di syempre siguro yan kay C kasi pinakaharap na harap eh. Sabi ng Vice-Mayor, Mayor si C
kapatid yan ni Governor, titirahin tayo ni Governor. Ah, oo, wag na wag na lang, itong kay B na
lang siguro ang ating e ano, Mayor, si B girlfriend ni Congressman yan, wala tayong ano yan. Eh
di dito tayo kay D, Mayor, nakalimutan mo nun nakaraan eleksyon malaki ang binigay sa atin
nyan. Oo nga pla, di tayo pwede dyan, si F, na lang tirahin natin dahil lagi tayong kinakalaban
nyan, okay. So, they filed a case of expropriation against F, yun. Given the factual antecedents,
it is possible that F may be able to stage off expropriation on this very issue of necessity.
Perhaps, F can show that there are other properties more ideal for the purpose, that there are
other properties perhaps, cheaper than his property, that the intended purpose for which the
properties to be taken can best be served if some other property is expropriated other than his
property. Yun, all of these things will be taken when the court rules on the issue of necessity, but
the important thing for you to remember of course is again, why, this is a justice able question and
it is the RTC that will determine this. Nonetheless, when the expropriation is undertaken by
Congress or under direct orders from Congress, then the issue of necessity becomes a political
question. Direct orders of Congress, ang Congress ang nagsabi, itong property ni F ang
expropriate, becomes a political question, not even F can raise the issue of necessity in court,
alright.
Private property. Private is the modifier of property which refer to ownership, ownership
and so, the property taken must be of private ownership because if it were of public property then
there is no need of expropriation. What, what then are the properties that may be expropriated?
Any and all kinds of property. Real, personal, tangible, intangible, movable, immovable,
consumable, non-consumable, any and all properties and this includes property rights may be
subject to expropriation. In the case of Government Telephone System vs PLDT, the Supreme
Court said, that services come within the context of property for purposes of expropriation and so
PLDT, in that case, was compelled through expropriation to allow the inter-phasing, the interconnection of the government telephone system so that subscribers of the government telephone
system could automatically by dialing call subscribers of PLDT.
Class, any and all kinds of property except money and chooses-in-action. Money which
is legal tender in the Philippines at the time of expropriation is undertaken, cannot be subject of
eminent domain because just compensation is to be paid in money so it will simply be an
exchange of money for money. Choses in action are supposed to be causes of action that are
personal in character and highly conjectural in nature such the reason they cannot be
expropriated is because by virtue of the very conjectural character of the cause of action, you
cannot put a pecuniary value to the cause of action and therefore, you cannot then comply with
the matter of just compensation.
Now, the only other question perhaps which had been ruled upon by the Supreme Court,
which we should take up is, City of Manila vs Chinese Community. The issue raised there
was, can private property which is already devoted to public use still be subject to eminent
domain? The City of Manila wanted to extend Rizal Avenue all the way to Caloocan. The
shortest way would be to cut across the Chinese Cemetery in Manila towards Caloocan. And so,
necessarily, the Chinese Community would not cede, in the first place the Chinese culture places
such a very high respect for the died. And so, the City of Manila instituted eminent domain
proceedings. One of the issues precisely raised by the Chinese Community was, this is already
devoted to public use, this is being use as a cemetery, therefore, it cannot be longer expropriated.
The Supreme Court in that case, ruled in favor of the Chinese Community not because of the
argument of the Chinese Community but because the City of Manila was exercising the power of
eminent domain pursuant to a general grant of authority found in the charter of City of Manila.
So, what is the rule? The rule is, if the expropriator acts upon a general grant of authority
then it cannot expropriate private property that is already devoted to public use. On the other
hand, if the expropriator files the complaint for eminent domain pursuant to specific grant of
authority from Congress, then even if the private property is already devoted to public use, it may
still be subject to expropriation. Those of you who take that route along Rizal Avenue all the way
to Caloocan City

32

July 6, 2004
Just Compensation
Alright so, we continue with just compensation. Just compensation is the amount to be
paid by the expropriator to the property owner. The amount to be paid shall not be less than the
market value of the property and the Supreme Court said, that the market value of the property is
that amount which the owner, a buyer who is desirous to buy, but not, compelled to buy and an
owner who is willing to sell but is not compelled is willing to accept by way of price. So, that is
supposed to be the market value of the property. But we have a property which is to be
expropriated is only part of a larger property, then, the computation of just compensation goes
beyond just the market value. The Supreme Court has also said, that to the market value shall
be added the amount of consequential damages which the private property owner may have
suffered but from this amount of consequential damages shall be deducted the amount of
consequential benefits derived by the property owner. But in no case shall consequential benefits
exceed consequential damages, which means that the property owner is to be paid no less than
the market value of the property.
The first principle you have to remember in connection with just compensation is that
which had been announced by the Supreme Court in the case of EPZA vs Dulay. This has been
asked at least 5 times in the bar exams. EPZA vs Dulay is authority for the principle that it is the
judge or the court that determines the amount of just compensation. And so, the determination of
the amount of just compensation for property taken in eminent domain cases is a judicial
prerogative. Any law passed by Congress which would fixed the amount of just compensation or
vests in someone else the authority to fix the amount of just compensation, is unconstitutional
because it would be an encroachment into a judicial prerogative.
Accordingly, laws and Presidential Decrees, which had attempted to transfer from the
courts the prerogative of determining the amount of just compensation in eminent domain cases,
have all been declared unconstitutional, alright. If we go back to the rules of court provisions on
eminent domain, and you remember that of course, you will notice that in the rules of court, there
is an obligation given to the judge to appoint commissioners who are supposed to assist the court
in the determination of the amount of just compensation to be paid. First question, since the
court is supposed to determine the amount, can the court refuse to appoint
commissioners? The Supreme Court said, NO! No, this is a substantive right to which the
property owner is entitled and therefore, the court cannot refuse to appoint commissioners.
However, the findings or recommendations of the commissioner or commissioners shall
be precisely recommendations. Such recommendations shall not bind the judge or the court, the
court has still the discretion, the prerogative to determine the amount of just compensation. In
determining the amount of just compensation, one of the factors would probably be the use to
which the property is devoted. Apparently, this is to be reckoned as of the date of the taking or
the date when the complaint is filed because were for example the property is really classified as
agricultural and has been and is still is being used for agricultural purposes, but, neighboring
properties have already been converted into residential areas, and it is the agricultural land that is
been appropriated, then at the time of the expropriation since the property was still an agricultural
land, it should therefore be priced at the price commanded by the agricultural land and not by a
residential property, alright.
Form of Compensation
In what form is compensation to be paid? It is to be paid in money. Money which is legal
tender in the Philippines at the time the payment is made. The only exception to this rule is in the
case of Agrarian Reform. In Agrarian Reform under the Comprehensive Agrarian Reform Law, it
is provided that payment of just compensation for agricultural land taken for agrarian reform shall
be partly in money and partly in Land Bank bonds. The Supreme Court justified, this departure
from the rule that money must be paid for just compensation, by saying that agrarian reform is not
really an eminent domain, it is an exercise of the police power and eminent domain is merely
used as an instrument to accomplish the police objective.
Now, in connection with the Comprehensive Agrarian Reform Law, in as much as the law
speaks of the mode of compensation in terms of money and Land Bank bonds, the case of Land
Bank of the Philippines and the Department of Agrarian Reform vs Court of Appeals. On the
scheme adopted by Land Bank of the Philippines and the Department of Agrarian Reform, in the
manner of paying agricultural land owners whose lands had been affected by the land reform.
The scheme was called the trust account scheme, were by, the Land Bank of the Philippines

33

through its nearest branch opens a trust account in the name of the agricultural land owner and
credits such trust account with the amount of money that is supposed to be paid to the land
owner. This mode of compensation was challenged, and the case went all the way up to the
Supreme Court. And the Supreme Court said, the trust accounts scheme adopted by the Land
Bank and DAR, was not valid, it was in the contravention of law and so, the Supreme Court said,
that the Comprehensive Agrarian Reform Law speaks only of these two, Land Bank bonds and
cash. It cannot include any other mode or scheme of payment.
In Administrative Law, one of the requisites for the validity of an administrative rule or
regulation that an administrative agency may issue, is that the rule or regulation must be within
the scope and purview of the law. This requirement mandates that the administrative body not go
outside the law itself because the administrative agency is supposed to implement the law, it does
not have discretion as to what the law shall be, the delegation given to the administrative agency
is a delegation merely to implement the law, accordingly, it is not within the competence of the
administrative agency to vary or to go beyond what the law actually says. Accordingly, the trust
account scheme adopted by the Land Bank and DAR was declared invalid. And of course, in the
motion for reconsideration, we already discussed that the Supreme Court said, that the Land
owner may withdraw the deposit even as the case is still pending because it would be unfair to
dispossess or deprived the property owner of the beneficial use of his property and yet, not allow
him to use the money that has been deposited in court, alright.
When Should Compensation be Determined?
On the amount that is to be paid, since it is the market value of the property that is to be
made the basis for the computation of the amount of just compensation, when do you reckon the
market value of the property? In a number of instances, the expropriator, government, may
already enter the property without the benefit of consent on the part of the land owner and only
much, much later, when the owner seeks payment or asks for rental, it is the only time when the
government decides to file a complaint for expropriation. So the question had been asked a
number of times, and the Supreme Court has not been very, very constant in its decisions. The
question asked was, do you compute market value of the property as of the time of the taking of
the property or do you compute this as of the time of the filing of the complaint? The Supreme
Court has been of late, very consistent, when it said, that it is the filing of the complaint that is the
reckoning point.
So, you determine the market value of the property at the time of the filing of the
complaint. But then again, after a little while, the Supreme Court said, however, if the taking of
the property took place long before the filing of the complaint and the property owner stands to
derived incremental, undue incremental benefit, we are talking of land here, because land
appreciates in value over time, undue incremental benefit because the taking was made much,
much earlier than the filing of the complaint, then, it should be the filing of the complaint that
should determine the reckoning of the market value.
In a 2001 decision, in the case of Eslaban vs De Onorio, however, the Supreme Court
said, the determination shall be made on the basis of the filing of the complaint or the taking
whichever came first. Eslaban vs De Onorio being the latest of these Supreme Court rulings,
should, I think, be followed in this instance, if there should be a problem given in the bar
examinations, I suggest, that you site the case specifically for that purpose. You may wish to do a
little discussion there, but, yun din ang sabihin mo sa wakas na yung Eslaban vs De Onorio.
Note, however, class, that is the rule whenever the expropriator is government and is Congress,
administrative bodies or private enterprises because whenever the expropriator is a local
government unit, note, that Section 19 of the Local Government Code specifically states,
that the amount of just compensation shall be the value of the property at the time of the
taking. Basta local government unit, taking, irrespective of when the taking was done and when
the complaint of eminent domain was filed.
In the recent decision of the Supreme Court in the case of Spouses Dedamo vs City of
Cebu, the Supreme Court reiterated this instead, the law itself specifically says that the
computation of the market value should be the market value of the property at the time of the
taking. And so, please be guided by this declaration of the Supreme Court and the specific
provision in the Local Government Code, alright. It is, more often than not, class, there is delay in
the payment of just compensation, that is why, when there is a delay the property owner is given
the prerogative of going directly to court to demand payment of just compensation. When court
action was resorted to or even when the court action is not, but there is delay in the payment of
the amount of just compensation, then, the property owner may demand payment of interest from
the expropriator.

34

In National Power Corporation vs Anggas, the Supreme Court said, that the property
owner is entitled to the payment of interest at the rate of 6% per annum because the interest here
is in the concept of damages not in the concept of interest for forbearance in the use of money.
So, were, from your mastery of Mercantile Law, you have 12%, that cannot apply to the interest
rate that will be used in the determining the amount of interest due a property owner in eminent
domain cases.
Then class, remember that it is not only the owner of the property who may be entitled to
payment of just compensation. Any other party who has an interest in the property may likewise
be given or be paid just compensation to the extent of the interest that he may have in the
property. Does a mortgagee of a property would be entitled to payment of the mortgage debt on
the property? Does a lessee, who may have already shed off so much, would be entitled, when
the lease contract is unceremoniously terminated because of the entry of an eminent domain or
an expropriation case? A vendee, in actual possession already under an executory contract may
have rights or interest that require reimbursement or payment once the property subject of the
sale has been expropriated.
Then, on the matter of title passing over to the expropriator, were the expropriator desires
that title to it, or to him, or whoever, then title will not pass until after just compensation has been
fully paid. In fact, we have an old, old case were because of the delay in the payment ,
apparently, there was even this delay also in the actual development of the property for public use
to which it has to be devoted. The private property owner was continually assessed real estate
taxes which he paid even as there was already expropriation. If he did this, the Supreme Court
said, then, he is entitled to reimbursement for real estate taxes that he may have paid, okay.
Can the Owner Recover the Property if not Devoted for Public Use?
So, then there is the question answered by the Supreme Court of whether or not the
property owner can recover the property in the event of the property is not used for the public use
to which it was originally supposed to be devoted? It seems the expropriator in this case, the
government had a change of mind, because the government had a change of mind, can the
private property owner now, claim the right to repurchase or re-acquire the property obviously
under the same price that the government has paid may be with interest at 6% per annum also.
The Supreme Court said, NO! No, unless, this was one of the conditions precisely for the
expropriation. Note, that when the expropriation is complete, title is vested in the expropriator
and were it is the government who is the expropriator, title over the property becomes will now be
in the name of the public, of the government. That perhaps, accounts also for our rule that unless
this is one of the conditions agreed upon by the parties in the expropriation, no right to reacquire
or re-purchase the property inheres in the property owner, alright.
Due Process of Law
Let us go back to due process. Due process here as held in Belen vs Court of Appeals,
simply says that the property owner is to be given notice and an opportunity to be heard. To be
heard on what? To be heard on his defenses, to be heard on his argument that the property
should not be expropriated, but in most cases, to be heard so that he can present evidence to
show the market value of the property which will be used as the basis for the payment of just
compensation, alright.
Special Cases of Eminent Domain
So, these are your basic rules. General rules for the validity of the exercise of the power
of eminent domain. We are looking at the general instances of eminent domain. But there are
special cases of eminent domain. First of the special cases, is that contemplated by Section 18
of Article 12. Under Section 18 of Article 12, the Constitution says, that the State may in the
interest of national welfare and defense establish and operate vital industries and upon payment
of just compensation transfer to public ownership, utilities, and private enterprises to be operated
by the government.
So back to Section 18. Note in Section 18, that the purpose for the expropriation is not
simply public use, by the express provision of the Constitution, it is in the interest of the national
welfare and defense. And so, while we are looking at Section 18, I think, it is only proper that we
look at Section 17. Section 17 speaks of a time of national emergency when the State may
temporarily transfer, temporarily take over or direct the operation of privately owned public utilities
and private businesses affected with the public interest. Note, class, that under Section 17, we

35

are talking of temporary take over. Note that under Section 17, we are looking at the exercise of
police power, under Section 18, we are looking at the exercise of the power of eminent domain.
In a 2003 decision, in the case of Aga vs PIATCO, Philippine International Air
Terminals Company, the Supreme Court had occasion to look at Section 17of Article 12. In that
case, apparently, there was a provision in the contract that PIATCO will be entitled to reasonable
payment where government takes over the operation of the air terminal. The Supreme Court
said, NO! The Constitutional provision cannot be overcome by a simple stipulation in a contract.
The Supreme Court said, precisely said, that this is an exercise of the police power, accordingly,
the government or the State is not compelled to pay adequate compensation which is supposed
to be a right in eminent domain cases. The Supreme Court also noted that what happened here,
consistent with Section 17, is merely a temporary take over. The Supreme Court said, it was not
a take over at all of ownership, but, merely a take over in the operations of the air terminal. So,
note, while we are talking of eminent domain, this comparison between Section 18 and Section
17 highlights precisely the distinction between eminent domain and police power.
Then of course, class, we have Sections 4 and 9 of Article 13. Section 4 speaks of
Agrarian Reform, and in this connection, there is of course no longer any doubt that the
Comprehensive Agrarian Reform Law is constitutional, recall Association of Small Landowners of
the Philippines vs Secretary of Agrarian Reform. If you should find time after the bar exams, that
is when you have time to read other things, I suggest that you read the decision in Association
of Small Landowners of the Philippines vs Secretary of Agrarian Reform. It is coached in
elegant language, it is a virtual lecture on police power and eminent domain. It was written of
course by Justice Isagani Cruz. He opens with the statement, In Greek mythology, there was a
giant named Anthios, who was the son of Mother Earth, Antios derives strength every time any
part of his body was in touch with the earth. And so it came to pass, that Antios, that Hercules
had to fight Antios and that every time Hercules slump Antios to the ground, Antios would rise
stronger than before. Until, Hercules learned of the secret and decided to hold Antios as high as
possible above the ground. And that was how Hercules defeated Antios. And then Justice Cruz
says, Antios, son of Mother Earth, Mother Earth, and then he waxes poetic again on mother
earth and then need for man to have a piece of land on mother earth and so on. And so, he
begins his, this is this course on police power and etc, ang haba-haba, ang buong chapter on
police power sa libro nya, kinopya nya doon lahat sa kanyang desisyon. But it is nice reading,
for, you want to go to sleep, perhaps, alright. So, wala na tayong problema dyan. And of course,
we have two relatively recent decisions of the Supreme Court upholding the constitutionality or
validity of retention limits in Comprehensive Agrarian Reform Law. Alam nyo na, for the past
several years, kung tignan nyo ang listahan, if you look at the coverage of the bar exams in all
subjects na nakalista yung mga laws na naroon, for several years before, I did not see this last
year and this year, I did not see the coverage. But in the past years, I would look at the list and I
would not find the Comprehensive Agrarian Reform Law. I dont know if it is included na, and I
understand that specially included in Political Law would be Human Rights. That is because the
chairman of the Bar Examinations Committee is Justice Leo Quisumbing. The wife of justice
Quisumbing, is the chairman of the Commission of Human Rights. So, when the chairman of the
Commission of Human Rights, ordered, the chairman (laughs), of the Bar Committee, to include
human rights in the subject of Political Law. As usual, he said, Yes! Okay (laughs), that is that
major reason. On human rights, I would like you to read not only the universal declaration of
Human Rights. I hope to be able to provide, eventually, anyway, nasa computer naman to,
maano lang, provide new materials with the most recent conventions, international conventions
on human rights. These are perhaps necessary, because this is the first time that human rights is
included in the coverage of the exam. Rest assured that there will be at least 1 question on
human rights this year. Otherwise, Justice Quisumbing will find himself outside the kulambo,
alright (laughs).
Now, Section 9. Section 9 of Article 13 speaks of Urban Land and Housing Reform.
And for this purpose, we have Republic Act 7279, otherwise know as the Urban Development
and Housing Act of 1992. Among those, among non-lawyers, they call RA 7972 as the Lina
Law. It was authorized by, principally authored by then Senator Joey Lina. I have read many
articles in the column of Neil Cruz in Inquirer, and whenever Neil Cruz refers to RA 7279, he says,
it is the stupid Lina Law. When he writes that I dont know which is stupid, the law or Lina,
anyway, hindi naman, kaibigan ko yun si Secretary Lina and of course, he has just been
substituted now by Secretary Angelo Reyes, alright. Now, Republic 7279, empowers the local
government units to expropriate land for housing, for shelter, precisely within the context of
Section 9 of Article 13.
Exercise of Power of Eminent Domain by the LGUs
And so, we have two decisions of the Supreme Court focusing precisely on this right of a
local government unit to expropriate land for purposes of urban land and housing reform. We

36

have Phil Stream International vs Court of Appeals, and we have the more recent, Francisco
vs City of Mandaluyong. In both cases, the Supreme Court denied the expropriation mainly
because the local government unit concerned failed to comply with one provision in the law and
this provision is the least thing of the properties that may be subjected to expropriation by a local
government unit in the order of priority, you have six.
The first is government lands. The second is alienable lands of the public domain. Third,
abandoned or idle lands. Fourth, lands which had already been determined as zip zonal
improvement program sites but had not yet been acquired by government. Five, bliss sites that
had already been identified but had not yet been acquired by government. And no. 6, privately
owned lands. Alright. What does the law require? The law requires that you first exhaust one to
five before you can expropriate number 6. And so in Phil Stream and in Francisco, the local
government unit failed to show to the court that there were no longer available for shelter, for this
shelter program, any of the lands from numbers 1 to five. The failure of the expropriator to show
that it had exhausted all the first five and that therefore, it could now go to privately owned lands,
was fatal to the attempt to expropriate the privately owned land. In Phil Stream, Phil Stream even
raised other issues but all the other issues failed, this was the one issue that supported the claim
of Phil Stream, alright. So, that should cover all of eminent domain. So, instead of going to
taxation, which I said, I will not lecture on because I do not know anything about taxation, okay, I
only know that taxation should be uniform. I do not even know what uniform taxation should wear
(laughs), alright.

PRINCIPLES AND STATE POLICIES

Preamble
We move on to Article 2 of the Constitution. It is in connection with Article 2 that we
discuss the preamble of the Constitution. My good friend, Digs Delangaleng, has memorized the
preamble very well, I am sure some of you, many of you, have also memorized the preamble. I
am sad to tell you that the preamble is not an absolute necessity in the Constitution, that
Constitution can exist without a preamble, that the only practical utility of the preamble is to serve
us an extrinsic aid in the construction of the Constitution. But if you have already memorized the
preamble, do not unmemorize anymore. So, we go instead right away to Article 2 on fundamental
principles and state policies. We look at the first section immediately, when the first sections
says, The Philippines is a democratic and republican state. Sovereignty resides with the people
and all government authorities emanates from them.
Democratic and Republican State
Democratic and Republican State. A democratic state is a State where the powers of the
State are vested in the people, it is suppose to be a State, a government of the people, by the
people and for the people. And so the powers of government are really with the people. In fact,
this is supported by the next sentence, Sovereignty resides in the people and all government
authority emanates from them.
Now, there are two kinds of democratic states. First is what is known as a pure
democracy, and the other is, a representative or a republican democracy. In a pure democracy,
the powers of government are directly exercised by the people themselves. We are told that
there were some Greek states in the old, old days that were pure democracies. Today of course,
all the democratic states in the world are republican in character, even the non-democratic states
preferred to be called democratic. When Germany was not yet unified, we had West Germany
and East Germany and the State of East Germany preferred to be called the Democratic
Republic of East Germany even if it was not really a democracy.
Anyway, republicanism is characterized by two main features. One is representation
which is to say precisely that the powers of government vested in the people are actually
exercised by representatives hopefully, freely chosen by the people, yun, like our President, yan,
okay. I hope somebody hears this, I mean, I hope it will be relayed to the President. The other
main feature is renovation. Renovation is the quality of change, the quality of dynamism. It is
imperative that a democratic State, democratic republican state be ready to effect changes in
order to meet the demands and exigencies of the times. Precisely, it is this quality of renovation
that is the reason for our adherence to a principle, the principle that Congress or Legislature
cannot pass irreparable laws. The Legislature cannot pass a irreparable laws because laws
passed by Congress cannot be repealed then we will petrify our government with laws that may

37

be obsolete and we are going to chain government to these laws and prevent it from responding
to whatever may be needed by the exigencies of the times, alright.
This brings us to the manifestations of republicanism. Some of the manifestations
anyway are, well, one of them is that Congress cannot pass irreparable laws, another one is,
adherence to the principle that ours is a government of laws and not of men which is best
illustrated by the old, old case Villavicencio vs Lukban, you would recall that of course. In
Villavicencio vs Lukban, the Mayor ordered the City of Manila to herd all the prostitutes in Ermita,
Malate, etc,and forcibly bring them to the pier, made them board a boat bound for Davao. I
understand, class, when the people of Davao learned of this, they were happy, they would have
visitors coming. Anyway, the act of the Mayor and the Chief of Police, was challenged and the
Supreme Court said, that no matter how noble the intentions of these public officers may have
been, they acted without legal basis, they took the law into their own hands and of course, ours is
a government of laws and not of men. A second manifestation is adherence to the rule of the
majority. Decisions in a republic of democracy are supposed to be reached by a decision of the
majority and by a majority
July 6, 2004
instances when what is required by the Constitution is a qualified majority and were a
qualified majority is required, the minority can actually tyrannize the majority. Were for example,
the Constitution in Article 17 requires that Congress must have the vote of at least three fourths of
all of its members in order to directly propose an amendment to the Constitution, then, any lesser
number will prevent Congress from effecting such proposal to amend the Constitution. Also, in
election of public officers were you have 3 or more candidates for public office, what is followed is
not the rule of the majority, what is followed is the rule of the plurality and so the candidate who
obtains the highest number of votes even if it is not a majority, will be proclaimed elected. Just
like our President, alright. Mukhang kelangan mag-sipsip eh, okay. Another manifestation is of
course the existence of the bill of rights, we will discuss this, for now let us be content that in as
much as, even, in as much as, in a democracy, the powers of government are so vast, there is
need to provide the individual with sufficient protection and guarantees which the individual can
resort to, to prevent arbitrary action on the part of government. Then of course, at the other side
of the bill of rights is, adherence to the principle of accountability of public officials. These
public officials are supposed to be chosen by the people, and thus, they become the repository of
the powers, the at least, they are not repository, but they exercise the powers of the government.
They should therefore be made accountable to the people.
Principle of Separation of Powers and Non-Delegation of Powers
Then of course, class, the classic principle of separation of powers and the corollary
principle of non-delegation of powers. Under the principle of the separation of powers, the
powers of government which are classified on the basis of law, on the basis of the participation in
the making and implementation of laws, the powers of government are classified into legislative,
executive and judicial powers. The legislative power is the making of laws, the executive power
is the administration and enforcement of laws, and the judicial power is the interpretation of laws.
Under the principle of the separation of powers, the Constitution has allocated these powers
among three separate, independent and co-equal departments. Each vested with ample
authority to prevent any encroachment by any one of the other departments, and or, prevent
excesses that may be committed by any one of the other departments. The Supreme Court in
very elegant language, in many cases, speaks of this separation of powers doctrine and says,
that the principle is not to be implemented with pedantic, rigor, I dont know what that means, or,
and then, it is not really independence but interdependence. So, we already know that, we
already know the principle behind separation of powers, okay.
Principle of Blending of Powers and Principle of Checks and Balances
Now, the two corollary principles are the principle of blending of powers and the principle
of checks and balances. The principle of blending of powers tells us that there may be certain
powers of government which cannot be fully exercised unless there is a participation, cooperation
and coordination of two or more branches of government and this is best exemplified in the
passage of the General Appropriations Act. Under the Constitution, it is the President who
prepares the national budget, submits it to the House of Representatives and then even after the
legislature has approved what is supposed to be the General Appropriations Act, it goes back to
the President for his or her approval.
On the other hand, the principle of checks and balances tells us that each of the
departments has more than ample authority to prevent excesses and to balance these excesses
that may be committed by other departments. Also, to prevent the encroachment by one

38

department into the prerogatives of the other. And so, note, for example, that the legislative
department is vested with the power of impeachment by which it may remove a banal President
of Vice-President and Justices of the Court, of the Supreme Court, as well as, chairman and
members of Constitutional Commissions, including the Ombudsman. The executive department,
the President has the power to veto in improvident legislation passed by the legislature, and so
far its power to check the judiciary, his concerned, the President has the power of appointing
members of the Judiciary and the President has the pardoning power with which he may caution
what he feels are very harsh decisions of the Courts. And the Courts, of course, have the power
of judicial review, the power to determine whether or not acts of the legislative or executive
departments are inconformity with the Constitution.
Political Questions
There is only one other area that we did not really take up in judicial review and that is
the political question doctrine. In the case of Tanada vs Cuenco, the Supreme Court said, a
political question is a question which under the Constitution is to be decided by the people in their
sovereign capacity or in regard to which full discretionary authority is granted by the Constitution
to the legislative or executive branch of the government. Notice then, that from that definition
made by the Supreme Court, we can classify political questions into three.
First, questions which under the Constitution are to be decided by the people in their
sovereign capacity. Second, questions in regard to which full discretionary authority is vested by
the Constitution in the Legislative department. And third, questions in regard to which full
discretionary authorities granted to the Executive department. Three, an example of full
discretionary authority given to the President would be in the matter of extending recognition to
another State or another government that is absolutely discretionary on the part of the President.
On the part of the legislature, if we look at Osmena vs Pendatun, the Supreme Court said, that
each House of Congress has full discretionary authority to determine what act or acts constitute
disorderly behavior for purposes of suspending or expelling a member from the House. And the
third, questions which under the Constitution are to be decided by the people to their sovereign
capacity, may be, we should look up even briefly the case of Philippine Bar Association vs
Commission on Elections, PBA vs Commission on Elections. What happened in PBA vs
Commission on Elections? Marcos sometime in 1985, guested on an international program on
television, worldwide television, the anchor man, the fellow asking the questions was in America,
Marcos was in the Philippines and because of miracle of technology, one was asking questions
and the other was answering. In the course of the interview on television, Marcos was asked
something about his legitimacy as President, and whether he was willing to submit himself to a
judgment by the people. Where upon he said, that he agreed, he would be willing to submit
himself to an election and so he said, he would in fact call for a snap election of President. The
following day, Marcos instructed the Batasang Pambansa to pass a law calling for the holding of
snap elections for President and Vice-President. The Batasang Pambansa passed that law, and
so, candidates filed their certificates and started to campaign. The Philippine Bar Association
went to the Supreme Court to stop the snap elections claiming that there was no basis, no
Constitutional basis for such snap elections because there was no vacancy in the Office of the
President under the 1973 Constitution, because Marcos was elected again as President in 1981,
and he was elected to a 6-year term, his term of office would expire only in 1987 not in 1986. And
so since there was no expected vacancy in 1986, there was no basis for snap elections. To go
around this, Marcos tendered his resignation as President, his tendered his resignation with the
Batasang Pambansa, but the resignation was worded in this manner, that he tendered his
resignation as President effective upon the proclamation of the winning candidate in the snap
elections in 1986. In the Law of Public officers, of course, that resignation was an invalid
resignation. In any event, after hearings, the Supreme Court dismissed the case, dismissed the
petition filed by the Philippine Bar Association. The dismissal made by the Supreme Court was
that it took a judicial notice of the fact that Marcos and Tolentino were already campaigning all
over the country, that Cory Aquino and Doy Laurel were also in the hostiles and the Supreme
Court, the people are already looking forward to these snap elections. And so, the Supreme
Court said, considerations other than legal have set in. Accordingly, it is no longer for this Court
to decide, let this be decided by the people themselves. And the rest is history, alright.
Judicial Inquiry
Even as political questions are outside the pile of judicial inquiry, nonetheless, as we said
earlier we were talking, yesterday we were talking about judicial review, nonetheless, because of
the second paragraph of Section 1 of Article 8 which vests in the Courts the judicial power which
includes the power to determine whether or not grave abuse of discretion amounting to lack or
excess of jurisdiction has been committed by any agency or instrumentality of government,
effectively reduces the scope of the political question doctrine. Now, the Courts can inquire even
into the exercise of discretionary powers. Inquiry into the exercise of discretionary powers to

39

determine whether or not there was grave abuse of discretion amounting to lack or excess of
jurisdiction. And so effectively under the 1987 Constitution, the political question, the scope of
political question doctrine has become narrower than in the earlier Constitutions, okay.
Delegation of Powers
The principle is potestas delegata non potes delegare, which is to say that powers
already delegated can no longer be delegated. You are all experts, you have mastered
completely the law on agency and so you know this very well. In the law of agency, you have a
principal who can delegate to an agent powers residing in him especially when he executes a
special power of attorney. But as a rule, unless the principal prohibits the agent, the agent may
further delegate the power to a sub-agent.
In Constitutional Law, any further delegation is prohibited because when the principal
delegates to an agent, his delegation to the agent carries with it his faith in the abilities, expertise,
knowledge of the agent and so it becomes the duty of the agent to perform that which is the
power delegated to him using his best lights, that is suppose to be the reason behind the principle
of non-delegation. Now, we look at the 3 branches of government, we have Congress, we have
the President, we have the Supreme Court and lower courts. Congress, the President, the
Courts, are, what? They are agents, therefore, as a rule, they cannot further delegate their
powers. Why are they agents? Who is their principal? Their principal is the people, sovereignty
resides in the people and all government authority emanates from them, alright. So, as agents
they are barred by the principle of non-delegation, since they are already exercising delegated
powers, then, they should not further delegate the powers. But wait, you and I know that the
President does not enforce and administer the laws herself. She has so many things to do, like
take care of her grandchild, alright. You know that the President delegates the power to enforce
and administer laws to cabinet members, to bureau directors, may be to Commissioners in
certain administrative agencies, even down the line to division chiefs.
You are aware from your mastery of Remedial Law that when a case is filed directly with
the Supreme Court and the case is impressed with factual issues, the Supreme Court not being a
trier of facts, delegates the matter of reception of evidence and adducing evidence to the CA, the
Court of Appeals or to a Regional Trial Court must of the time. Now, the Court of Appeals can
receive evidence. The Regional Trial Court, that is delegation by the Supreme Court. Are these
not violations then of the principle of non-delegation of powers? No, they are not. You have to
bear in mind that the principle of non-delegation of powers is a corollary principle of the principle
of separation of powers. What is prohibited is not delegation within the department, what is
prohibited is delegation outside the departments. So the Courts cannot delegate judicial power to
the President, or to Congress. The President cannot delegate executive powers to Congress or
to the Courts, and Congress as a rule cannot delegate legislative powers to the Executive or
Judicial Departments. That is what is prohibited.
You have to remember that the principle of non-delegation is based on the greater
principle of separation of powers. And so look, the President delegates all the way down in the
entire administrative structure, the Courts can delegate to so many branches of Regional Trial
Courts and so many divisions in the Court of Appeals. But note, Congress, has no smaller or
subordinate congresses to which it can delegate legislative power and this is because of the
structure and not because Congressmen are mayabang. Although many of them are mayabang
talaga, alright. So, tignan nyo wala. And so when you speak of exceptions to the doctrine of nondelegation, you speak of the instances when the Constitution allows Congress, kasi Congress
lang naman ang walang ma- delegate tan ng power. You speak of the instances when
Congress may be allowed to delegate legislative powers and we have five such instances of valid
delegation. Delegation to the President of tariff powers, delegation to the President of emergency
powers, delegation back to the people, delegation to administrative bodies which are in the
executive department and delegation to local government units. Those are the five instances of
valid delegation.
Exceptions to the Doctrine of Non-delegation of Powers
Tariff Powers of the President
Exceptions to the doctrine of non-delegation of powers. Under the Constitution,
Congress may by law, authorize the President within limits, within the restrictions imposed by
Congress, to fix tariff rates, import and export quotas, tonnage and wharfage dues and other
imposts and duties in accordance with the framer of the national development program of
government. That is allowed by the Constitution itself. And so Congress has passed the customs
and tariff code under which Congress has delegated tariff powers to the President. The code
itself contains the restrictions, the conditions and the terms under which the President may issue
such orders relating to the fixing of tariff rates, import and export quotas, tonnage and wharfage

40

dues and other imposts and duties. All because, all within the framework of the national
development program of the government.
Who designs the national development program of the government? Congress.
Congress is the policy making body. The national development program of the government is an
expression of national policy, it is made by Congress, and so the delegation given to the
President is for the President to perform the powers of Congress in relation to tariff but always
subject to the policy enunciated by Congress in the national development program, alright.
Emergency Powers of the President
The Constitution also provides, that in times of war or other national emergency, the Congress
may by law authorize the President within a limited time and subject to such restrictions as
Congress may provide to exercise powers that are necessary and proper to carry out a declared
national policy.
What are the conditions for the grant of emergency powers? There must be war or
other national emergency. Second, the exercise of the power shall be for a limited period. It shall
be for a limited period as limited by Congress in the law granting the power to the President but in
no case shall the grant of the power exceed the emergency itself. Third, the exercise of the
emergency powers by the President shall be subject to the conditions, terms, restrictions imposed
by Congress found in the law delegating the emergency powers. And of course, when the
President exercises delegated emergency powers, the President is bound again by the
Constitution to exercise this, or to exercise only such powers as are necessary and proper in
order to carry out a declared national policy.
Who declares this national policy? Congress again, because Congress is the policy
making body of government. And then the Constitution continues and says, unless earlier
withdrawn by resolution, the grant of the power shall cease upon the next adjournment of
Congress. The need for a resolution instead of a law withdrawing or repealing that law was made
necessary because of our experience in the Araneta vs Diglasan, Rodriguez vs Helia cases,
the Emergency power cases during the 1935 Constitution. Doon nakakatawa yun eh, briefly,
class. 1940, on the eve of the, there was already a rumor that the Pacific War will break out even
as there were already hostilities in Europe. There was no war yet in the Far East, in the Asia, but
there were already rumors and so, in order to forestall the emergencies that would arise,
Congress, in 1940 passed a law granting the President of the Philippines emergency powers. It
was Manuel L. Quezon who was granted these powers, but of course, that was not in the law
itself. It was the president who was granted the emergency powers. When war broke out, the
Philippine Commonwealth had to go on exile to Washington, D.C., after the liberation of the
Philippines, Quezon had died in the U.S. and so, President Osmena who had succeeded to the
Office of the President came back to the Philippines in the company of Mc Arthur, alright. Then
we had elections for the third Philippine Republic in 1946. President Manuel Roxas was elected
and the Vice-President, Elpidio Quirino. Roxas died in office and Elpidio Quirino became
President of the Philippines by succession. During his incumbency as President, the Philippine
government was threatened by a rebellion in Central Luzon. The rebellion that which is supposed
to be authored by the Huk Balahaks. Elpidio Quirino who was a very good lawyer, scholar during
his days in the University of the Philippines College of Law, remembered, as he was a member of
Congress then, he remembered that there was an emergency power law granting the President
emergency powers and so, he looked back and saw, wala pang, ni hindi pa na-repeal ito, this is
still valid law, so he began exercising emergency powers. Congress of course did not like
President Quirino exercising emergency powers. Congress immediately passed a law repealing
the emergency powers law. But since it was a law it had to be submitted to the President, when it
was submitted to President Quirino, he vetoed the law. Aba enjoy na ako dito sa emergency
powers bat nyo tatanggalin sa akin. Because of that, our Constitution provides that now
Congress can withdraw the grant of emergency powers only by a resolution, a resolution does not
requires the approval of the President, so yun, alright.
Initiative, Referendum and Plebiscite
Then class, delegation back to the people. Even the matter of initiative or referendum,
and the conduct of the plebiscite, these are instances when the Congress will have to give it back
to the people, give back the decision, the legislative decision to the people. Consider for example
Section 10 of Article 10 of the Philippine Constitution, Congress passes a law creating a local
government unit. Note, that the Constitution itself says, that law creating a local government unit
cannot be implemented unless that law is approved by a majority of the votes cast in a plebiscite
in the area affected by such a law. Notice, the Constitution has reserved this power back to the
people and so by passing such a law, Congress, in effect re-delegates to the people the making
of that law effective and implementable.

41

Delegation to Local Government Units

Then of course, delegation to local government units. No matter how powerful Congress
may be, no matter how intelligent and how industrious the Congressmen are, they cannot be
expected to know and cope with all problems in the localities. And so, there has been no valid
challenge to the grant of delegated legislative authority to LGUs. so LGUs can pass resolutions
and ordinances.
Delegation to Administrative Bodies
Then of course, the power of subordinate legislation to administrative bodies. This is
what we have been talking about earlier. The power of administrative bodies to issue rules and
regulations which have the force and effect of law and which must be within the scope and
purview of the law. This is known as the power of subordinate legislation and there has also been
no valid challenge to the grant of delegated legislative authority to administrative bodies.
Tests for Valid Delegation
Now, class, when Congress delegates to the President, or to administrative bodies, or to
local government units, or back to the people, what does Congress do? How is this delegation
effected? Congress passes a law, and so, in the Constitution the grant of tariff powers is made in
a law passed by Congress. The grant of emergency powers is made in a law passed by
Congress. The grant of quasi-legislative powers to administrative bodies is made in a law to
LGUs and a law and back to the people in a law because that is how the delegation is to be
effected.
And so class, when you speak of the tests for valid delegation, what are you talking
about? You are talking about the law, is the law valid? Is the law that delegates powers valid? It
to be valid it must pass two tests. The test of completeness and the test of sufficient standard.
Completeness Test
The completeness test tells us that the law when it leaves Congress must be complete in
all of these details so that the delegate shall have no discretion to determine that the law shall be,
but will merely shall implement the law. Notice, just one example, when you delegate tariff
powers to the President, he is circumscribed already by the law that grants him the power, he
cannot go beyond the law that grants him the power. Not only that, he must work within the
framework of the national development program of government. He does not have discretion,
there is really no delegation of legislative powers if you go right down to it because what the
President can do is only implement the law passed by Congress. He has no discretion to
determine what the law shall be, but shall merely implement the law.
Sufficient Standard Test
Then the second test is the test of sufficient standard. The law granting the delegated
authority must as a rule contains the standard which will set the parameters for the exercise by
the delegate of the legislative power delegated. In the words of Justice Laurel, the provision of a
sufficient standard, serves to canalize the power to prevent it from overflowing. And so we have
various standards in the reorganization for example of the government offices, administrative
bodies are allowed to do so, subject to the standards of simplicity, economy and so on. These
are among the standards. Now, as we said, in order that a law may be valid if it delegates
legislative powers it must pass both tests, both, sufficient standard and completeness. Now, it is
possible that the law itself delegating the power may not contain a sufficient standard. The
Supreme Court in the case of Chong Bian vs Orbos said, that is alright as long as the law
delegating the power makes reference to another law were the standard is found, then there is no
invalid delegation. The delegation is still valid, alright.
July 7,2004
The Incorporation Clause
Any government entity, or any government agency, that is why in Public International
Law, you differentiate the doctrine of incorporation from the doctrine of transformation.
What are we saying class? If you have Public International Law principles that are generally

42

accepted by the family of nations, automatically, Public International Law principles become part
of Philippine Law automatically. If there is no incorporation clause in the Constitution, it would
take legislative action for Public International Law principles to be made part of Philippine Law
and the legislative action will be necessary in order to transform accepted Public International
Law principles into Philippine law as it were. And so, look at the case of Kuroda vs Jalandoni,
when the Philippines after the Second World War created the, the Philippine government created
war crimes tribunals against the Japanese war criminals. Kuroda, a Japanese General, went to
court to challenge the validity of the war crimes tribunal hearing and trying the cases because
according to him, the Philippines was not even an assignatory to the Hague and Geneva
Convention on war which would have allowed the country to create a war crimes tribunal in order
to try, prosecute and try war criminals. The Supreme Court dismissed the Kuroda petition and
said, by virtue of the incorporation clause, The Hague and Geneva Conventions on war being
generally accepted principles of International Law are already part of Philippine Law. Being part
of Philippine law, they may therefore be used as the basis for the creation of the war crimes
tribunals.
If at all there is going to be a question on this, the potential question is of course , if there
should be a conflict between a Public International Law principle and Municipal Law or law
of the Philippines, which will prevail? This is from the view point of Philippine Law and
Philippine Constitutional Law, so, if a Public International Law principle should be in conflict with
the Philippine Constitution, it is the Philippine Constitution that will prevail. Accordingly, our
Constitution even provides for the possible nullification of treatise, when the treaty is contrary to
the Constitution, the treaty will be declared unlawful and therefore, null and void. This is not so in
Public International Law. In Public International Law, when a State enters into a treaty, the State
is suppose to make a representation that the obligations, that the State is willing to undertake
under such a treaty or the provisions of the treaty which the State is willing to be assignatory to,
are consistent with the States on Constitution. There is the undertaking made by the State when
it enters into a treaty that should provisions of the treaty be contrary to the Constitution of the
State itself, then the State will undertake to change its own Constitution so that the State can fulfill
its obligations under the treaty, under the Public International Law principle of "pacta sunct
servanda".
However, class, as I said, the rules in Public International Law are different on this
particular score, if the Public International Law principle should run counter to the Philippine
Constitution, then of course, our local courts will declare the Philippine Constitution supreme and
invalidate or annul the Public International Law principle in so far as its application within the
country is concern.
Now, supposing its not the Constitution but an ordinary law or a law passed by legislature
drawing from the declaration made by the Supreme Court in the case of Ichong vs Hernandez, if
the local legislation is a police measure, in Ichong vs Hernandez, the Supreme Court said, police
power is so pervasive that it cannot be bargained away through the medium of a treaty or a
contract. Accordingly, if it were a local or municipal law that has been passed in the exercise of
police power, it would prevail over a Public International Law principle. What if the Public
International principle runs in conflict with an ordinary municipal law? Which will prevail? In the
case of Secretary of Justice vs Judge Lancion, the Supreme Court said, we adopt the rule
lex posterior de rugat priore, the latter law prevails. Since a Public International Law
principle is treated merely as an ordinary law, then if Congress should pass a subsequent law in
conflict with the Public International Law principle, it is presumed that Congress knew of the
existence of the Public International Law principle and that it intentionally passed the law as an
amendment to or as a repealing law to the Public International Law principle. So its, lex
posterior de rugat priore, the latter law prevails over the former.
The third clause in Section 2 is a motherhood statement, adopting the principles of
peace, equality, justice, freedom, cooperation and amity will all nations, you can not quarrel with
that. Of course, you have to understand what each of these words mean in the context of dealing
with other nations.
Civilian Supremacy
So, we move on, we go on to Section three, Section three contains two different
statements and that is why there is not only in Congress but even outside Congress a continuing
demand to delete the second and third sentences of Section three. But before we go there, let us
look at the first sentence, civilian authority shall be supreme over the military. This is of course,
another feature of our Republican Government. Our authorities are civilian in character and
therefore, these civilian authorities should be supreme over the military. Even the President of
the Philippines who is commander-in-chief of the Armed Forces of the Philippines is a civilian
authority.

43

Now, I recall one case where this principle was deemed violated. According to the
Supreme Court, deemed violated by the military. The case of Ali vs Castro, the case of Ali vs
Castro started really with the assassination of Mayor Ceasar Climaco of Zamboanga. The
colorful Mayor of Zamboanga, Ceasar Climaco, an outspoken advocate against corruption in
government. He was assassinated and his killers were not found. The military investigating the
incident suspected Rizal Ali, but the military could not get any substantial evidence against Rizal
Ali. Finally, frustrated perhaps, feeling frustrated, the military decided to raid the compound
where Rizal Ali and his men lived. Rizal Ali and his men resisted the raid and a fire fight ensued.
The superior forces of the military of course, prevailed, and so, the team was able to enter the
compound. Ali and his men were arrested, ammunition, guns, were taken. Ali and his men were
brought to the military headquarters, the military camp. There they were paraffin tested, they
were photographed, they were thumb marked, etc, and the cases were filed against them. Ali
and his men went to court, they went all the way up to the Supreme Court to challenge the
constitutionality of the validity of the raid and the subsequent confiscation of the weapons and
ammunitions. The Supreme Court said, the military team had ample time to obtain a search
warrant and a warrant of arrest. That the military team decided to take the law into its own hands,
and raided the compound was in violation of the doctrine that civilian authority is supreme over
the military. The cases have to be dropped, Rizal Ali was free again along with his men, but it
seemed that the military continued to place him under surveillance which Ali felt was harassment.
And so, Rizal Ali decided to go by the golden rule, Do unto others what others would do unto
you, only do it first. And so, instead of waiting for another raid by the military, Ali and his men
attacked the military camp and occupied the military camp. In the process, a general and a
colonel were killed in that encounter. I recall that Ramon Mitra, who was then speaker of the
House of Representatives, had to fly to Zamboanga to try to negotiate the surrender of Ali so that
the camp could be given back to the military. Ali refused, and so, another fire fight ensued, of
course, the military won. But after the battle, Ali was not found, apparently, Ali was able to
escape eventually to Malaysia. Class, I was already teaching here in San Beda when that
happened. One of our students in the College of Law was the son of General Batallia, who was
killed in that incident and the fellow did not finished schooling. That very semester he had to drop
out because of what happened and I dont know if he ever became a lawyer at all. That is why
we got to know all these, the antecedents of that raid at camp Kawa-kawa and the antecedent of
course was this case of Ali vs Castro, alright.
Duty of the Government to Defend the State
The second and the third sentences speak of the Armed Forces of the Philippines being
the protector of the people and of the State. Class, this is what many people are afraid of, that
phrase could very well be used by the military at some point and may be take over government.
This could be used as the Constitutional basis of a military take over, if the military feels that the
State demands protection from the civilian authorities or the people demand or require protection
from civilian authorities and that is why, one of the suggested amendments to the Constitution is
really the deletion of these two sentences in Section three, alright.
In, after 2001, after the EDSA 2, whenever there was an opportunity for him in Congress,
in the House of Representatives, Congressman Digs Delangaleng, would almost always point to
this and makes reference to the fact that the military at that time should have been loyal to the
Commander-In-Chief of the Armed Forces of the Philippines, President Joseph Estrada. At the
height of EDSA 2, the military top brass went to EDSA and deserted as it were, Erap, and pledge
loyalty to Vice-President Arroyo, ostensibly, because of this. I remember that in one budget
hearing in the House of Representatives, Representative Delangaleng asked that the entire
House of Representatives constitute itself into a committee of the whole, so, the entire House of
Representatives sat no longer as the House of Representatives as a legislative body but as a
committee of the House of Representatives, as a committee of Congress. That request was
made because Congressman Delangaleng wanted then Secretary of National Defense, Angelo
Reyes, to stand up and answer questions before the committee of the whole and one of the
things precisely that Digs Delangaleng pointed to was this, when he asked, what was your
reason when you left President Estrada and aligned yourself with the people who were
demonstrating in EDSA?. That was precisely, well, not in so many words perhaps, not in the
exact words, but that was the justification given by then Secretary Defense, Angelo Reyes, that
they were justified in abandoning Estrada and aligning themselves with the people in EDSA
because the Armed Forces, he was then the Chief of Staff of the Armed Forces, the Armed
Forces is supposed to be the protector of the State, protector of the people, so, yun. And so, not
just a few people believed that this is a dangerous provision in the Constitution which should
really be deleted, alright.
Duty of the People to Render Military or Civil Service

44

Section four, on government, on the duty of the government on the subsequent, the
important thing here is the duty of the people, the duty of the citizens to render personal military
or civil service in the defense of the State. So, even as they are still, they are already very old
cases, People vs Zosa, People vs Lagman, are nonetheless, still valid case law of today. Zosa,
of course, is authority of the principle that one cannot avoid compulsory military service by
invoking ones religious convictions. People vs Lagman, is authority for the rule that one cannot
avoid compulsory military service by saying that he has a sick and ailing father and several
brothers and sisters to support. Be that as it may, perhaps, because the framers of our
Constitution are more tolerant than the earlier framers of their Constitution, now we have not only
compulsory military service but compulsory civil service so that chances are, when a person is
really called upon, when a citizen is really called upon to defend the State and to render personal
service and he is so strong in his religious convictions that prevent him from doing military service
he will perhaps be assigned merely civil service, alright.
Section five is another, it is another motherhood statement. Read it, just read it. The
promotion of the general welfare, nobody can quarrel with that.
Separation of Church and State
Section six, on the separation of the Church and State, this should be read together with
Section 5 of Article 3 on the non-establishment clause, alright. So, what other Constitutional
provisions support Section 6 on separation of Church and State? Of course, the nonestablishment clause in Section 5 of Article 3. We have Section 5 paragraph 2 of Article 6,
Sectoral Representatives in the House of Representatives. Various sectors may be represented
but not the religious sector.
Of course, we have the provision against the use of public money or property for the
benefit of any religion or for the benefit of any priest. That prohibition is a prohibition against
appropriation for sectarian benefit and then of course in Article 9-C, Section 2, paragraph 5
speaks of political parties, registration of political parties with the Commission on Elections. The
Constitution says that religious sects and denominations shall not be registered as political
parties. Be that as it may, class, there are also a number of provisions in the Constitution which
serve as exceptions to this separation of Church and State. For example, Churches, parsonages,
convents, and all properties which are actually, directly, exclusively used for religious purposes
are exempt from taxation.
Of course, even as there is a prohibition against the use of public money or property for
the benefit of any religion or of any priest, ministeric or ecclesiastic, the Constitution says, that
where the minister priest or ecclesiastic is employed in government, in the Armed Forces of the
Philippines, in a penal institution, or in a government owned orphanage or leprosarium, then of
course, he may be paid his salaries or honorarium or whatever ends it is that is to be given to him
by way of compensation. Then, in Article 14, you have two other exceptions there. First, is the
exception to the rule that ownership of educational institutions should be in the hands of Filipino
citizens or in corporation at least 60% Filipino owned. The Constitution specifically provides an
exception, and the exception is, schools that are established by religious groups or mission
boards. Finally, the Constitution also by way of exception to the prohibition against the use of
public property for the benefit of any religion provides for the use of public elementary and high
school classrooms for optional religious instruction. The ramifications and jurisprudence on all of
these will be discussed when we go to Section 5 of Article 3.
Section 7, on an independent foreign policy, of course, nobody can quarrel with that again
except that it seems that whatever is in the Constitution is not at all followed, it continued to be
dependent, independently dependent on the United States, and so, alright.
Nuclear-Free Philippines
The Section 8, on a nuclear free Philippines, actually, this provision created a little
controversy in 1988 when then Secretary of Justice Ordonez came up with an opinion in his
capacity as Secretary of Justice. His opinion said that this Section 8 is not yet a declarative
statement, Section 8, he said, needs first a determination of what is in the national interest. Once
Congress has determined what is best for the country, what is in the national interest, then, it can
adopt a policy of the Philippines being completely nuclear free. That opinion of Secretary
Ordonez elicited a lot of criticism from the constitutionalists. The constitutionalists claim that
Section 8 is already a declaration of policy. That means the Constitution has already found that it
is in the national interest that the Philippines should be nuclear free, alright.

45

Just and Dynamic Social Order

Section 9 is another motherhood statement, a just and dynamic social order. Talagang
magaganda, at least, one thing you can say for the framers of the 1987 Constitution is that they
had a lot of words of very high sounding and beautiful words in, they place all this in the
Constitution. Kaya mga motherhood statements that you cannot quarrel with. So, just read that,
read that, if you want, then memorize. Memorize in fact if you can, all of Article 2.
Social Justice
Section 10 on Social Justice, you should at least be able to define Social Justice in your
own words or if you have memorized the definition given by Justice Laurel in Calalang vs
Williams, you are welcome to that of course. Recall when we talked of Social Justice, recall
what we have already discussed in connection with the functions of government. That because
of the Social Justice principles, there is now no real distinction between the constituent and the
ministerial functions of government. Recall also the declaration made by the Supreme Court as
early as Edu vs Erecta, that because of the Social Justice provisions in the 1935 Constitution we
have repudiated the doctrine of laissez faire. And this repudiation of laissez faire is even more
pronounced in the 1987 Constitution because there are more Social Justice provisions therein.
And as enunciated by the Supreme Court in the more recent decision promulgated during, under
the ages of the 1987 Constitution, the case of Association of Philippine Coconut Decicators
vs Philippine Coconut Authority, alright.
Human Dignity and Human Rights
Section 11 on human dignity and human rights, again, these are statements that you can
not quarrel with, unless, you need pick because even as the Constitution speaks of full respect for
human rights, you continue to hear of incidents of violations of human rights. Perhaps, that is the
reason why Justice Leo Quisumbing decided to include human rights in the bar examinations. I
would like you to memorize Section 11 particularly so that when you are asked a question on
human rights, you can immediately, you can write one sentence at least. You can write that as
the basic State policy relative to human rights.
Family
Section 12, on the sanctity of the family, Section 12 is perhaps the only Constitution in the
world that contains that second clause protection to be given both to the mother and to the
unborn from conception. It is in this connection, class, that perhaps we can make reference to an
American case, the case of Raw vs Wade. The case of Raw vs Wade, the issue in Raw vs Wade
is the validity of a State law. One of the States in the US passed a law in the State legislature to
the effect that human life starts in the fetus only upon the fifth term of pregnancy. It was the
contention of the legislature, the local legislature, that it is within the power or the authority of a
legislative body to determine the start or commencement of human life, okay. So, what would
have been the consequences, at least from our prospective if such a law were passed here in the
Philippines? If human life commences in the fetus only upon the fifth term of pregnancy, prior to
that any violent expulsion of the fetus from the mothers womb would not be a violation of law,
there would be no criminal liability involve since there is no life in the fetus before the fifth term of
pregnancy. Fifth term of pregnancy, I dont know how many days there are in one term, but it
doesnt fit exactly one month, I think, its a, it maybe less than a month, okay. If such a law were
passed in the Philippines, that law would be unconstitutional for it would run counter precisely to
the statement that the State shall afford protection to the unborn from conception, not from any
time but from the time of conception it is already entitled to protection by the State, alright.
Youth
Section 13, on the rule of the youth in nation building and the corresponding obligation to
promote the well being, physical, moral, spiritual, intellectual, etc., well being of the youth. Well,
again, that is a motherhood statement, one recognizes the contribution of the youth to the
building of the nation and how many people in their youth have given up their lives and so on
especially during the martial law years when a lot of young men and young women fled, went to
the mountains and so on, alright. Never mind that, but class, again this is a motherhood
statement that we can not quarrel with.
Equality of Men and Women

46

Section 14, on the rule of women and the fundamental equality of men and women
before the law. You know class, I always tell my bar candidates about this because in 1987, in
October of 1986 where in we got a copy of this Constitution, I was happy I pledge that I will help
campaign for ratification, specially after I saw Section 14. I wanted a copy of this Constitution,
immediately I wanted to bring it home, I wanted to show it to my wife, and tell her that I am equal
to her after all under the law (laughs), so yun.
Look at PT&T vs NLRC, in PT&T vs NLRC, the Supreme Court declared that the policy,
the employment policy of PT&T was discriminatory and therefore a violation of this principle.
Why? PT&T apparently adopted a policy not to hire married women, not only that, among the
women employees, it was prohibited to get married. If a woman employee gets married, she will
be dismissed. I dont know who in PT&T adopted this policy, he must have been a very
insensitive individual in not knowing that all women look forward to that one time in their lives
when they will get married, not knowing that a few months after that they become battered wives.
There is mention by the Supreme Court in that case of bona fide occupational qualification.
I recall that many, many, years ago, many years ago, the Philippine Airlines had a policy
in the matter of flight stewardesses. All of their flight stewardesses who flew on the place where
unmarried and this was an occupational qualification, kailangan unmarried. But there was no
prohibition against marriage, when a flight stewardess gets married then she will no longer be
allowed to fly. She will be assigned ground duties and then she would be considered still as
stewardess but this time a ground stewardess and no longer an in-flight stewardess. So, yun, I
dont think that this is a policy now. But of course, if you see in the past, class, noong mga unang
panahon ang gaganda talaga ng mga stewardess noon eh,oo, ngayon, in the last six years, I
would fly almost every week at least at every other week, at least pauwi, kasi I had to go to the
province and show my self there and ganun. At least twice a month ako pumupunta. Hindi na
magaganda ang mga flight stewardess, naku, wala na, wala na, sus. But there is perhaps an
international phenomenon, because, oo miski naman ano, I went to the US, I also took even
domestic flights in the US going from one city to another. Aba pati un mga North West, mga
ganyan na Alaska, yun mga ano pang Americana, whatever ano pang mga Airlines nila doon,
abay matatanda ang kanilang mga stewardess. Mga amerkana nga pero matatanda naman,
wala na, wala na. I mean, so, I dont see why they should talk about occupational qualifications
pa na mga ganyan, wala rin naman sinabi (laughs), alright. So, PT&T vs NLRC is the case in
point there and PT&T of course the Supreme Court said that, that policy is masked of
discrimination against women.
Health and Ecology
Section 15, on health. Again, health consciousness, there is nothing you can say about it
anymore, you just have to accept that policy.
Section 16 on the ecology. Well, we have decisions, Oposa vs Factoran. In Oposa vs
Factoran, class, the unique feature of the case is that children, minors, were the ones who filed
the petition in court against then Secretary of Environment and National Resources, Fulgencio
Factoran, Jr. These children asked the Supreme Court to annul the timber licensing agreements
entered into by DENR with a number of private companies. Of course, the children were joined
by their parents in that action against Secretary Factoran. The Supreme Court upheld the right of
the children to sue and the Supreme Court said that more than any one else, it is they, the
children, who are rally entitled to a healthful ecology.
In the case of CMN Timber vs Secretary Alcala, it was the contention of the petitioners
that when the government adopted the total log ban policy, the total log ban policy should be
applied prospectively because it was a new policy and so, it should not be made to retroact to
timber licensing agreements that had already been entered into. The Supreme Court disagreed
with this contention and said, the total log ban policy is only an implementing policy, it only
implements the basic State policy found in Section 16 of Article 2. And so, it may not be said to
be a new policy, therefore, it can be made to apply even to existing timber licensing agreements,
alright.
Education
Section 17, on education. A few cases, I, there are a few cases I would like you to
remember. First, on the principle that the government may validly sets standards for educational
institutions to follow so that when an educational institution does not meet the standards set by
government, government may order the closure of such school or educational institution.
Philippine Merchant Marine School vs Court of Appeals, Philippine Merchant Marine School
is a school for would be sailors and ship officers, etc, alright. They have their school, their
classrooms are in a high, in a relatively upper floor in the Republic Supermarket Building along

47

Rizal Avenue. Apparently, the Philippine Merchant School did not even own a vessel, dyan sila
nag aano, far away from the sea, siguro ang kanilang ano puro mga pictures lang. Class, this is
the sea, class, this is a ship (laughs), ganon lang sila. When Secretary Isidro Carino was
Secretary of Education, he ordered the closure of the school for failure to meet the basic
standards. Of course, the litigation was protracted at the time the Supreme Court decided the
case, I think Secretary Isidro Carino was already dead, but anyway, the Supreme Court still
upheld the position of government.
Now, with respect to students who wish to enroll in certain courses, the Supreme Court in
Tablarin vs Guiterrez, upheld the authority of government and government agencies to impose
requirements prior to admission to medical schools in this case. The Supreme Court upheld the
validity of NMAT, the National Medical Admission Test, so that one who does not pass the NMAT
may not be allowed entrance in any medical school in the country. The Supreme Court upheld
the validity of this law and the subsequent rules issued by the Department of Education at that
time. I recall, I think, the decision in this case starts with, the issue in this case is mediocrity, that
is why the Supreme Court upheld the law and the rules issued by DECS because the Supreme
Court said, we should not be turning out only mediocre doctors of medicine. And so, it was within
the authority of the State to prescribe valid entrance requirements before one may be allowed to
enter medical school, alright.
Subsequently, DECS came out with a resolution to the effect that any student, any would
be medical student who fails the NMAT 3 times will no longer be allowed to enter medical schools
at anytime. This was challenge and when if finally reached the Supreme Court in the case of
DECS vs Sandiego, the Supreme Court still upheld the authority of the Department of Education
Culture and Sports to issue this regulation. It was a valid regulation issued in the exercise of
delegated police power, again, to ensure that our medical students and prospective doctors are
qualified.
Incidentally, I am sure you are all aware of the new rule in the Supreme Court about five
times a bar candidate who fails to pass, who fails the bar exams five times, will no longer be
allowed to take the bar exams. I understand that when this was announced by the Supreme
Court before deans of law schools, the deans of the law schools asked that the Supreme Court
applies this prospectively so that you begin, you should begin to count one only with this coming
bar exams. The Supreme Court unfortunately did not agree, and so, the Supreme Court said,
NO! But for all, all of those who had taken the bar exams already and those who have taken the
bar exams 4 times or 5 times or more, they will all be given one more chance to take the bar
exams and pass it, after that, the rule applies. I think a question was raised and one of the
questions raised was, does this mean that a bar candidate cannot take the bar exams anymore
and he would have no chance at all to become a lawyer. Well, I think, one of the Justice
answered that if he wants after 5 times, five failures in the bar exams he can go back to law
school, enroll in first year again and ano, and go back to, yun ang problema ng ano. So, this is,
and because the Supreme Court is, imagine in Tablarin vs Guiterrez, they upheld already the
NMAT rules and I think the Supreme Court will in the very near future, really move for the
Constitution of the legal education board. The legal education board will then have jurisdiction
over the law schools, not the CHED, not the CHED anymore, it would be the legal education
board which will have jurisdictions over law schools. It can prescribe, change the curriculum in
law schools, it can then perhaps, impose other requirements and perhaps also, set more stringent
standards for law schools to follow. Once the legal education board is constituted and it becomes
operation, then we foresee that within a few years from its Constitution, there would be a lot of
law schools that may be ordered closed, that is. When we last talked to Justice Vitug, who was
chair up to, who is still chair, except, that he is still out of the country, I think, today, chair of the
legal education committee in the Supreme Court. He was very, very serious about the
Constitution of the legal education board. Now, you see, we already have a law on that but that
has never been constituted, so, yun, alright. The only other case I would like you to remember in
relation to education, Its really in relation to Article 14 is that even as the Constitution prescribes
that education should get the highest budgetary allocation in the yearly general appropriations
law. In the case of Guingona vs Carage, and reiterated in the case of Philconsa vs Secretary
Enriquez, the Supreme Court said, this is merely a directory and not a mandatory provision
because the framers of the Constitution could not have envisioned a situation that Congress will
be hamstrung and be prevented from meeting other equally urgent requirements of government,
alright.
Protection of labor and Independenrt Economy
Section 18, you have mastered that completely. Thats on labor, so, kayang-kaya nyo na
talaga yun, master na master nyo na.

48

Section 19, on an independent, a free and an independent economy preferably run by

Filipinos. Tanada vs Angara. In Tanada vs Angara, then Congressman Tanada, challenge the
validity of the senate ratification of the WTO, World Trade Organization Agreement and one of the
arguments of Tanada was precisely that the World Trade Organization Agreement, the WTO
Agreement, and the corresponding general agreement on Tariff and Trade, the WTO got violated
Section 19 of Article 2. The Supreme Court disagreed and said, Section 19 should be read along
with the provisions of Article 12. And so, the Supreme Court said, there is therefore no violation.
Private Sector
Section 20, on the role of private sector. I would like to call your attention again to
Association of Philippine Coconut Decicators vs Philippine Coconut Authority, where the
Supreme Court said, that even as the Constitution enshrines and gives protection to the private
sector, nonetheless, government may intervene at any time whenever the demands of public
welfare requires such intervention, alright.
Section 21, on rural development and land reform, well, land reform we have discussed
that in relation to eminent domain. Then 22, on indigenous cultural communities, just read that.
Section 23, on independent peoples organizations. I would like you to read this in relation to
Article 13 particularly the provision that defines a peoples organization. Then, the matter of
information and communications, just read that.
Local Autonomy
Section 25, on local autonomy, we will be taking up this again when we take up, on law of
local government. But for now, recall what the Supreme Court said in Basco vs PAGCOR. Local
autonomy is simply decentralization. It does not mean that local governments will become an
imperium in imperio. And in an earlier decision in the case of Limbonas vs Mangelin, the
Supreme Court distinguished between decentralization of powers and decentralization of
government. The decentralization of power would mean total abdication by national government
in favor of local government units, while, decentralization of government simply means the
broadening of the base of governance, alright.
Equal Access of Opportunities for Public Service
Sec. 26, on equal access of opportunities for public service, this is precisely, class, the
argument against changing the Constitutional provisions by including academic qualifications for
candidates for President and others, because the Constitutional policy is that we should give
equal access of opportunities to everyone who may wish to aspire for public service. On the
other hand, yun, marami kaming pinuntahan in the last 2 years, meron tatayo na lang sa aming
consultations, assemblies, pagkatapos tatayo sasabihin, congressman bakit yung police required
to be a college graduate and to pass an examination, pero pagka Presidente able to read and
write lamang, but that is what the Constitution says and the policy on equal access. But note,
look at Section 26, in the same provision meron din nakalagay na prohibit political dynasties as
may be prescribe by law. They, when you prohibit political dynasties, you do not, you therefore
restrict access of opportunities for public service, well, anyway, up to now, there has been no law
passed by Congress prohibiting political dynasties. Congress has not even gotten around to
defining what a political dynasty is, okay.
Honesty and Integrity in Government Service
Section 27, on honesty and integrity in government service, how can anyone quarrel with
that especially because that is an ideal that is unattainable , alright. Nobody can quarrel with that,
that is a dream (laughs), you do not quarrel with a dream, alright.
Section 28, on full public disclosure, simply tells us that the principle of transparency
will be followed in the government. I think it was in 1989, that Justice Angelina Gutierrez, who
was not yet a justice of the Supreme Court at the time, was examiner in Political Law. Then she
became chairman of the bar committee in 1995, I think. In 1989, she asked one question, she
asked this question, what are the Constitutional provisions that promote the principle of
transparency in government transactions? I am telling you this class, because in 1995 when she
was chairman, there was somebody else that she, of course, designated as bar examiner in
Political Law, but the very same question was repeated in 1995 when she was chairman, that
means nakialam sya sa mga questions, isininggit pa rin nya. I think she repeated 3 questions, 3
of the questions she asked when she was examiner were asked when she was chairman of the
bar examinations of the bar committee. Of course, among the provisions in the Constitution that
promote transparency in government transactions are Section 28

49

Article 11 on accountability, where the Constitution says that public officials before
entering into performance of their office are required to submit a statement of assets, liabilities,
and net worth. These would be among those provisions that promote transparency in
government transactions, alright. That will end our Article 2, we move on to Article 3.
BILL OF RIGHTS (ART. 3)
General Principles
Okay, so, we move on to Article 3, class, the bill of rights. The bill of rights is a set of
prescriptions of civil and political rights intended to give the individual protection against
arbitrariness, arbitrary action on the part of government. When we were speaking yesterday of
the manifestations of republicanism, we said, that one of the manifestations of a republican
government is precisely the existence of a bill of rights. It is necessary to extend protection to the
individuals because there are so much powers vested in government and it is not uncommon for
government to abuse these powers, to be arbitrary in the exercise of these powers.
Accordingly, the bill of rights will come in and stay, stop, moderate, temper governments
arbitrariness, governments action against individuals. So, that is what your bill of rights is, and
the rights granted are mainly civil and political rights. In the case of Simon vs Commission on
Human Rights, civil rights were defined as those rights of a citizen of a State, or in a wider
sense, rights granted to the inhabitants of the State, but these rights are not connected, these are
the rights that are not connected to the establishment organization or administration of
government. Well, included here of course would be the right to property, the right to marriage,
even the equal protection clause, the right to contact, these are your civil rights.
The political rights on the other hand, in the same case of Simon, the political rights on
the other hand are those rights that are given to citizens to participate in the establishment,
organization and administration of government, and so, your right of suffrage, you have rights
incident to citizenship, your right to aspire for public office, these are rights incident to citizenship.
As a rule class, the rights given in the bill of rights are mandatory. As a rule they are self
executing, unless of course, the Constitution says otherwise, alright.
Due Process Clause and Equal Protection Clause
Let us move on now to the first section of the bill of rights. The first section of the bill of
rights contains two guarantees, they are the due process clause and the equal protection clause.
The due process clause says that no person shall be deprived of life, liberty or property without
due process of law. Very simply then, let us, before we go to analyze each one of these words
here, otherwise stated, a person may be deprived of life, liberty or property as long as the
deprivation of life, liberty or property is in accordance with due process of law. Person here refers
to all people, natural and juridical persons. In so far as natural persons are concerned, this
applies to citizens, aliens, male, female, young, old. Life, is suppose to be entitlement the
completeness of ones being including of course the right to use the faculties that make for
enjoyment of ones existence. Liberty is freedom from undue restrain. This includes also the
right to use ones God given faculties as long as you do not step on or transgress the rights of
another. Property within the context of this provision would refer to anything that is capable of
being subject of a contract. It has always been said that public office is not property, but when
one is duly elected or appointed to public office and he is ousted unlawfully, then he may take
steps to recover the public office as if it were property. Privileges, franchises for example,
privileges granted by the State are not necessary included in the context of property, in that,
privileges may be withdrawn at any time by the State, alright. If we said the bill of rights contains
rights that are intended really to protect the individuals against arbitrary government action, then
these rights are limitations, as they are, limitations on government.
Now, yesterday we also looked at government as legislative, executive and judicial
departments. Does the due process clause, legislative, executive, and judicial departments of
government, does the due process clause limit all of these departments of government? The
answer is YES of course. Note that there are two aspects of due process of law, substantive
aspect and the procedural aspect. The substantive aspect serves to restrict the exercise of
legislative power as well as the exercise of quasi-legislative power. The procedural aspect limits
or restricts the exercise of judicial power as well as the exercise of quasi-judicial power. What are
we saying? No law or executive order or administrative issuance which when applied will deprive
a person of life, liberty or property can be valid, unless, that law or administrative issuance
complies with the requisites of substantive due process. No, judicial determination or an
administrative determination shall be valid if that determination will result in the deprivation of life,
liberty or property, unless, that judicial or administrative determination complies with procedural

50

due process. So, what are the requisites of substantive due process which laws and
administrative rules and regulations should comply with?

Requisites of Substantive Due Process

First, the interest of the public in general as distinguished from those of a particular class
required the passage of the law or the issuance of the administrative rule or regulation. Second,
the means employed. The means employed to the private person of life, liberty or property must
be reasonably necessary for the accomplishment of the purpose and not unduly oppressive on
the individuals. You will remember, that is, the very same things we discussed yesterday when
we talked about police power. These were the very same things we discussed when we
discussed police power, because I submit that there can be no law or administrative issuance
which when implemented will deprive a person of life, liberty or property, unless, that law is
passed in the valid exercise of the police power. In other words, any law or administrative
issuances that will, when implemented deprived a person of life, liberty or property must have
been passed in order to promote the general welfare because there can be no justification for the
deprivation of life, liberty or property if that deprivation is not intended to promote the general
welfare. And so, we apply the principles we mentioned yesterday on police power, we apply to
due process of law in so far as the substantive aspect of due process is concerned.
Requisites of Procedural Due Process
So, we concern ourselves now only, or mainly, with procedural due process, that is
almost always what one refers to, when one cry out and says, I have been deprived of due
process of law, I have been denied of due process of law. In almost all of these cases, that cry is
made in connection with procedural due process, alright. So, memorize of course, if you have not
yet memorized the requisites of procedural due process.
First, an impartial court or tribunal clothed with the authority to hear and decide the case.
Second, jurisdiction must be acquired over the person of the defendant and over the subject
matter of the action. Third, the defendant must be given notice and an opportunity to be heard.
And fourth, judgment must be rendered only after lawful hearing.
Note, that with respect to the first, two things. The tribunal must be impartial, second the
tribunal must be clothed with the authority to hear and decide the case, alright. The matter of
impartiality, we have heard this repeatedly, read this, repeatedly in many decisions from the US
courts and the Philippine courts. When impartiality is referred to, what is referred to, is the cold
neutrality of an impartial judge. The Supreme Court has gone even further and said not only
should the judge be neutral, he should also appear neutral. Consider for example, Tabuena vs
Sandiganbayan, Imelda Romualdez vs Sandiganbayan, were the Supreme Court said, that
because the Justices in the Sandiganbayan virtually took at it upon themselves to act both as
prosecutor and judges because they crossed examined the witnesses of the accused, they were
virtually the ones who questioned the witnesses of the accused. The Supreme Court said by that
behavior, the Justices showed partiality, therefore, their decision of conviction handed down by
the Sandiganbayan on accused Tabuena, Luis Tabuena and on accused Imelda Romualdez
Marcos were vacated in the Supreme Court.
Of course, earlier on, in the case of Galman vs Sandiganbayan, the Supreme Court
also declared that the Sandiganbayan was not an impartial court and so, the judgment of acquittal
was vacated and the accused was tried again.
In connection with Tabuena and Imdelda Romualdez Marcos, I would like to call your
attention to two cases in 2001, the case of People vs Erida, and People vs Merinella, becuase
in those two cases the judge asked 43%of the questions, tinignan ng Supreme Cout ang
transcript , 43% of the questions were asked by the Judge, pakialamero talaga ang Judge na yun
no, pero, the Supreme Court, this did not show partiality, the Judge still maintained neutrality
because the questions were really intended to clarify certain matters that the witnesses testified
on, they were not intended as prosecution questions at all.
So, then, class, I think from your legal and judicial ethics, you have of course, the
grounds for disqualification of Judges in your rules of court, just go through them, dahil hindi
naman dito sa atin itatanong, hindi dito sa Political Law, alright. Class, not only must the court
impartial, the court or tribunal must also be clothed with the authority to hear and decide the case.
In the case of courts, they should be clothed with judicial authority, in the case of administrative or
quasi-judicial tribunals, there should be administrative or quasi-judicial authority vested in them,
alright. What is the authority to hear and decide the case called? It is called jurisdiction. So, the
court or tribunal must be impartial and must have jurisdiction. Now, you have mastered Batas

51

Pambansa 129, you have mastered everything in Remedial Law, and so, that is a Remedial Law
problem, the jurisdiction of each of the courts and the jurisdiction of your administrative tribunals.
Now, the Constitution in Article 8 speaks of jurisdiction, it is Congress through law that
defines and apportions the jurisdiction of courts, but, except, that Congress cannot deprived the
Supreme Court of its constitutional jurisdiction nor can the Congress add to the appellate
jurisdiction of the Supreme Court without the consent, the advise and consent of the Supreme
Court itself, alright. Next, jurisdiction must be acquired over the person of the defendant and, or
over the subject matter of the action. This time we are looking not as jurisdiction as authority to
hear and decide the case, but jurisdiction as the authority that may be exercised by the court over
the person of the defendant and over the subject matter of the action, and again, you have
mastered this. How does the court acquire jurisdiction over the defendant in a civil case? How
does the court acquire jurisdiction over the accused in a criminal case? How does the NLRC, for
example, acquire jurisdiction over the person of the defendant in an employer-employee
relationship case? Alright. So, that is something you have already mastered, or if you have not
yet mastered, you will master that anyway in Remedial Law, so, wala tayong problema doon.
The core of procedural due process is the third requisite which says that notice should be
given to the defendant, notice and an opportunity to be heard. We do not have to go through the
many decisions of the Supreme Court on notice, I think, we do not have to be labored by this very
lengthily, we look only first at administrative or judicial actions or determinations which ostensibly
deprived the person of life, liberty or property and yet, there was no notice given to the defendant.
Today, I am told that we no longer have temporary, ex parte temporary restraining orders, except,
perhaps, the Supreme Court itself issuing an ex parte temporary restraining order. No more ex
parte writs of preliminary attachment, no ex parte writs of replevin, but, on the judicial side, there
is the requirement for notice and hearing now before issuing what the courts used to issue ex
parte because in the past, a court can issue an order ex parte. Ex parte, that means eto lang, isa
lang, wala muna yung isa, hindi alam nong isa, alright, so wala, okay. So, at least, judicially, we
do not have this anymore, but in the administrative structure, class, we continue to have certain
administrative actions or determinations which even if ostensibly, these actions actually deprived
persons of liberty or property mainly property or even liberty, have been declared by the Supreme
Court to be valid even if no notice was given to the defendant.
Consider first, the preventive suspension of a public officer or employee facing formal
administrative charges. In all the cases decided by the Supreme Court, were this was raised as
an issue, the Supreme Court has consistently sustained the validity of an order of preventive
suspension even without notice because the Supreme Court said, this is only a preventive in
character, it is not punitive, it is not a punitive action on the part of the administrative agency. Ito,
a public officer or an employee in a department, in an agency of government, when formal
charges are filed against him for dishonesty, for example, when the charge is served upon him,
nakakabit na kaagad ang order of preventive suspension, preventive suspension for 90 days,
okay. He is given a copy of the formal charge and he is required to answer within, not less than 3
days not more than 5 days and in the answer to state whether he wants a hearing to be made or
to be conducted, or whether he wants to submit the case on the basis of his answer and the
evidence against him, okay. I think class, the decisions of the Supreme Court in the past, and all
of this, tama naman yun, kasi yung sinasabi ng Supreme Court, after all if he is exonerated he will
be entitled to recover back salaries. But that is no longer true now in light of Supreme Court
decisions, in light of the decisions of the Supreme Court in Gloria vs Court of Appeals. Ano na
ngayon? Nauuna nanaman tayo ulit, we jump to public officers, pero, served with the formal
charge and order of preventive suspension, 90 days, assumed that at the end of 90 days there is
already a decision in the administrative tribunal, he is ordered, X is ordered dismissed from the
service with forfeiture of benefits. Department, the department head has to confirm the decision
of dismissal so that the decision of dismissal can be immediately executory, confirmed by the
department head, X is dismissed from the service 90 days after he was preventively suspended.
He appeals to the Civil Service Commission, it takes 2 years for the Civil Service Commission to
decide, in the meantime, X is already out of the service because the order of dismissal is
immediately executory, the Civil Service Commission affirms the department ruling, so his out.
He appeals to the Supreme Court, it takes the Supreme Court, let us be kind, 5 years,
and the Supreme Court exonerates X. During all these time, 5 years, he was out of the service,
Supreme Court exonerating X, entitles him to back salaries for this period, for the period of
preventive suspension during appeal, because the period while he is out, after he was dismissed,
will now be only considered preventive suspension during appeal, alright. So, he will be paid
back salaries only for this, because the preventive suspension during appeal was without any
legal basis considering that in the end, he was exonerated.
In Gloria vs Court of Appeals, the Supreme Court said, he can no longer recover back
salaries for the 90 days because there was a valid, legitimate, legal basis to suspend him

52

preventively and that is the Civil Service Law it says, that when a public officer or employee is
charged with dishonesty or with any offense which would merit a decision of dismissal from the
service, he can be preventively suspended not for a period exceeding 90 days, unless, the delay
in the investigation is due to his own fault in which case the suspension may extend beyond 90
days, alright. Ngayon, is there no deprivation of liberty or property man lang, so, yun, anyway,
but that is still case law, class, preventive suspension.
Second, the case of Suntay vs People, the action of the Secretary of Foreign Affairs in
ordering the cancellation of the passport of a Filipino holding that passport while the Filipino was
abroad because somebody had filed a criminal action, a criminal complaint against that Filipino
passport holder for seduction here in the Philippines. In order to compel him to return to the
Philippines and face the charge of seduction, the Secretary of Foreign affairs cancelled his
passport while he was abroad, he had to comeback. When he challenged the validity of that
action of the Secretary of Foreign affairs, the Supreme Court said, the Secretary of Foreign Affairs
did not commit any arbitrariness in canceling the passport of the petitioner, so, valid. No notice at
all, no notice and no hearing. Eh, nasa abroad, basta kinancel, yun, okay.
Third, of course, class, in abatement of nuisances, in the exercise of police power, well,
especially, you have nuisance per se, for example, you have a mad dog on the loose, you do not
go around looking for the owner of the dog to give him notice, so thats okay.
Then number four, class, Maceda vs Energy Regulatory Board and subsequent cases.
The law vest in the administrative agency the authority grant provisional approval, hihingi ng
increase in the prices of gasoline and other oil products, now its the Department of Energy na
ngayon, wala na yung Energy Regulatory Board, Department of Energy na ngayon, okay. The
Department of Energy says, granted provisionally, in the meantime we will schedule this petition
to increase prices within 60 days time, at which time we will have the opportunity to listen to
oppositors, etc. The Supreme Court in all of these cases involving the agencies of this nature
and involving the exercise of the power to issue provisional approval said, is alright, even if no
notice is given because after all there will still be a hearing and after all, the approval is only
provisional. If after the hearing, of course, the government agency, the administrative agency is
not convinced, then the petition will not be granted and the provisional approval withdrawn, okay.
Pero if you paid already, you bought your gasoline at a higher price and ano, for 60 days,
pagkatapos pababalikin nila dahil hindi dapat pala mag-increase, hindi naman isasauli sayo ang
ibinayad mo, alright. Anyway, those are the decisions of the Supreme Court, and those are
instances, class, were there maybe administrative determinations which ostensibly deprived a
person of property naman lang, property.
In the case of Suntay, liberty, he was abroad, he had to comeback because his passport
had already been cancelled. Ostensibly, depriving a person of life, liberty or property and yet, no
notice was given, but they were considered valid. In almost all other cases, class, there has to be
notice and an opportunity to be heard. Note, opportunity to be heard, the Constitution does not
guaranty an actual hearing, it guarantees only an act, an opportunity to be heard, so, when the
opportunity has not been taken advantage of, then, it is the defendants on lookout, he can no
longer claim that he was being denied of due process of law. And in connection of the opportunity
to be heard, you know very well that in the administrative structure there is no guaranty of a trial
type hearing.
You know, you have mastered Labor Laws, you know very well that in employment
controversies, especially on illegal dismissal cases brought before the Labor Arbiter, the Labor
Arbiter may require only the submission of position papers to which are attached the evidence of
both parties. Now, with the submission of the position papers and their respective evidence, the
parties are deemed to have submitted the case for decision, where out necessity of trial type
hearing were one will cross examine the witnesses of the other party and so on. We have no
problem with that respect. Now, despite the very clear statement that notice and opportunity to
be heard must be given to the defendant, notice also, class, some decisions of the Supreme
Court. If a party is given the opportunity to file a motion for reconsideration, the Supreme Court
said, then, he can no longer claim to have been denied of due process of law. If he had been
given the opportunity to appeal, then he can no longer claim that he had been denied of due
process of law. Medyo mahirap din ito tanggapin pero, these are the decisions of the Supreme
Court, paulit ulit na ito, so, we have to accept all of these decisions of the Supreme Court on the
matter, basta, yun na lang, nabigyan na ng pagkakataon mag motion for reconsideration,
nabigyan na ng pagkakataon mag appeal, so wala na, no more denial of due process of law,
okay.
Then, finally, class, judgment to be rendered only after lawful hearing which actually
speaks of the opportunity to be heard here, because if judgment can be rendered without giving
the party an opportunity to be heard at all then there would be a violation, if judgment can be

53

rendered after all without lawful hearing then it would make it easy to deny the defendant the right
to be heard, okay.
Other related principles to procedural due process, the matter of publication, So, the
matter of publication, laws, administrative rules and regulations have to be published with greater
reason should they be published if they carry penal sanctions. And so, a law cannot be applied or
implemented if it has not yet been published. In the case of administrative rules and regulations,
we said yesterday, that while publication is required, and publication means Official Gazette or
newspaper of general circulation, publication of interpretative rules and regulations, as well as,
internal rules of administrative agencies may be made simply by placing them in conspicuous
places in the administrative agencies themselves.
Appeal and Due Process
Appeal and due process. While appeal is accepted not to be a part of due process
because the right to appeal is granted by statute, nonetheless, class, were there is a law that
grants the right to appeal, denial of the right to appeal without any valid basis would constitute a
denial of due process. With respect to preliminary investigation, the same rule applies.
Preliminary investigation is not per se a part of due process, however, were there is a law that
mandates preliminary investigation, then denial of preliminary investigation would mean a denial
of due process and you know very well, of course, from your mastery of Criminal Law, Criminal
Procedure, that when an offense, when the offense charge carries with it a penalty of
imprisonment of at least 4 years, 2 months, and 1 day, then, the accused or suspect is entitled to
mandatory preliminary investigation.
Finally, the matter of administrative of due process, let us take that up when we go to
Administrative Law. Yung 7 cardinal rights of individuals in an administrative proceedings. So,
we can move on, on the equal protection of the laws.
Equal Protection of the Laws
The second part of section 1 is equal protection of the laws. So, let us move on to the
next equal protection of the laws. No person shall be denied the equal protection of the laws.
Again, all persons are granted of this privileged. First all, natural and juridical persons, and then
of course, citizens and aliens, and everything. Although, the equal protection clause may allow
for some discrimination, alright.
When we speak of the equal protection clause, we refer to simply as persons and things
similarly situated should be treated similarly in terms of rights granted and obligations or liabilities
imposed. This is the simple explanation of the equal protection law, the equal protection clause,
alright. So, class, you speak of economic equality there, yet, you find a lot of provisions in the
Constitution especially in Article 12 that favor Filipino citizens, you cannot deny that in the
Constitution of course because this is a Constitution for the Philippines. Then, look at Section 1
on Article 13 on the provision that we should as much as possible do away with social economic
cultural in equities. From the standpoint of political equality there is really no political equality
when you treat citizens and aliens differently. Now, we have all cases including cases involving
cities where the voters of the city are not allowed to vote for provincial candidates. Not being
allowed to vote for provincial candidates they will not also be eligible to run for provincial office.
In such cases, class, the Supreme Court has always upheld the law and said, that this is a matter
of legislative discretion.
Even in the Criminal Law field, recall the case of Gumabon vs Director of Prisons,
Gumabon was convicted of rebellion complexed with murder and was sentenced to Reclusion
Perpetua. He was serving sentence already, and in fact, he had served sentence, he had served
more than 12 years imprisonment already, when the case of People vs Hernandez was decided
by the Supreme Court. In People vs Hernandez, the Supreme Court said, there is no such thing
as rebellion complexed with murder or complexed with any other common crime because the
common crimes are supposed to be absorbed in the crime of rebellion. And so, the only offense
committed is simple rebellion and of course rebellion, the maximum penalty for rebellion is 12
years imprisonment. Here was a man who was serving sentence for Reclusion Perpetua had
served sentence already for 12 years when the new decision came out. And so, he filed a
petition for habeas corpus, asking that he be released because he should be treated similarly as
in People vs Hernandez. The Supreme Court issued the writ of habeas corpus and ordered his
release, indeed, the equal protection clause was applied. But, treating everyone similarly is not
really guaranteed, even among people who appeal to the similar or similarly situated, there may
really be some distinctions.
Requisites of Valid Classification

54

And so, class, the more important part of the equal protection clause is to memorize the 4
requisites of valid classifications, and well, to understand them of course, and see that whenever
there is room for valid classification, then people even if ostensibly similarly situated may be
treated differently, alright. What are the four? One, there must be substantial distinctions which
make for real differences. Second, the classifications must be germane to the purposes of the
law. Third, the law must not apply to existing conditions only. Fourth, the law must apply to all
members of the same class, alright. Substantial distinctions which make for real differences.
So many cases, class, dyan lang sa Overseas workers, starting with Philippine
Association of Service Exporters vs Secretary Drilon, anong ginawa ni Drilon? Drilon issued
a memorandum circular prohibiting the deployment of Filipino female domestic helpers abroad.
Temporary prohibition, wala munang ipadadala, the Filipino female domestic helpers. The
Philippine Association of Service Exporters which of course engaged in the business of recruiting
and sending these workers, went to court to challenge the constitutionality of the Drilon
memorandum circular on the ground that it violates the equal protection clause because other
overseas workers are allowed and yet, only Filipino female domestic helpers are not allowed to
leave. The Supreme Court found valid basis for distinction between domestic, female domestic
helpers and other overseas workers and the Supreme Court said, it is your, Filipino female
domestic helpers who is most subjected to exploitation and abuse by foreign employers and so,
they require greater protection, they should not be allowed to leave.
In Conference of Maritime Manning Agencies vs POEA, the distinction between seabased and land-based Overseas Workers are held to be a valid basis for classifications.
Masyadong maraming cases na, television and broadcast, the broadcast media as against the
print media in telecommunications, Telecommunication and Broadcast Attorneys of the
Philippines vs Commission on Elections. Maski yung, other, policemen and other government
workers in the matter of being preventively suspended while they are facing criminal charges
July 9, 2004
Searches and Seizures
Requisites of a Valid Warrant
We look at the requisites of a valid warrant of arrest or a valid search warrant. And so
memorize the requisites which are found in the Constitution itself. First, there must be probable
cause. Second, the probable cause must be determined personally by a judge. Third, the
determination by the judge of the existence of probable cause shall be made after examination
under oath or affirmation of the complainant or the witnesses for the complainant. And, the
warrant must particularly describe the place to be searched, and/or the persons and things to be
seized.
Probable Cause
Probable cause is defined as such facts and circumstances as would induce a
reasonably cautious man to rely on them and to act pursuant thereto. In the case of a warrant of
arrest, of a search warrant, there are facts and circumstances antecedent to the issuance of the
warrant, of the search warrant which would induce a reasonably prudent and cautious man to
believe that an offense has been committed and that items or things connected with the offense
have to be found in a place to be searched. What other things you have to remember in
connection with probable cause, first, that probable cause must be found to exist in for each
specific offense. The exception to that is of course in the matter of violations of the Dangerous
Drugs Act considering that the offenses punished under the law are so inter-related, so closely
related. And ah, that ah, and so you can..We have a finding, a single finding of a probable cause
already sustained several violations of the Dangerous Drugs Act. Ah, on the matter of, on the
second, that the existence of probable cause must be personally determined by the judge, in light
of jurisprudence class, we now make a distinction on the manner in which a judge personally
determines the existence of probable cause with respect to a warrant of arrest and with respect to
a search warrant.
Personal Determination of Probable Cause by the Judge; Under Oath
Relate, therefore, the second and the third requisites. In the case of a warrant of arrest
from your mastery of criminal procedure, the offended party may complain to the police. Or file his
complaint directly with the prosecutor for the purpose of preliminary investigation. The offended
party submits to the prosecutor his affidavit of complaint along with affidavits or sworn statements
of his witnesses, and the prosecutor conducts a preliminary investigation. And in fact asks the
respondent to submit his counter-affidavit as well as the affidavits of witnesses or, and, to submit
whatever countervailing evidence the respondent may have against the complaint of the offended

55

party. After, well, then the prosecutor makes an evaluation on the finding of a probable cause for
a prima facie case. The prosecutor then prepares his resolution. If he finds that, ah, there is
probable cause or that there is a prima facie case, then the prosecutor also prepares the criminal
information. To the resolution are attached the affidavits and whatever, whatever ah, evidence
may have been adduced during the preliminary investigation. All of these are forwarded to the
court. The criminal information is filed and ah, all of these are supposed to be forwarded to the
court.
In the case of Soliven vs. Macasiar, the Supreme Court said that it may be, it is
sufficient for the judge to find the existence of probable cause merely upon an evaluation of all of
these, the resolution, the affidavits, the evidence, etc. The court is not under, the judge is not
under any obligation to call the complainant or the witnesses for the complainant and appear
before the court and be subjected to searching questions, an exhaustive examination by the
court. Because if the court is satisfied that there is already probable cause on the basis of these
documents and evidence, then the court may already issue the warrant of arrest.
In the case of a search warrant, you have the offended party or the applicant for a
warrant because the applicant may be the police, may be the NBI or some investigating agency
or law enforcement agents. The offended party or the applicant applies for the issuance of a
search warrant directly with the court. No intervening executive or administrative official is
between the offended party or the applicant on the court. And so, when such an application is
received by the court, the judge is under obligation to examine the applicant and the witnesses for
the applicant in order to determine the existence of probable cause that will justify the issuance of
a search warrant.
And so, by virtue of the ruling of the Supreme Court in the case of Soliven vs.
Macasiar, in the case of the issuance of a warrant, there need not be the third requisite. Although
of course, if the judge is not satisfied that there exists probable cause upon his evaluation of the
resolution, the affidavits and the evidence submitted to the prosecutor, then the court may require
the offended party, their complainant and the witnesses for the complainant to appear before it
and be subjected to searching questions. And all the proceedings of course, the questioning, the
answers, all of these are to be reduced in writing and be included in the records of the case. But
while it is mandatory here, it is not mandatory there. It is because of course there is no
intervening prosecutor in the matter of an application for the issuance of a search warrant.
Note, however class, that for example in the case of Lim vs. Felix where only the
criminal information had been elevated to the judge. All of the other things, the resolution, the
affidavit, the affidavits, the evidence, were still with prosecutor and the judge issued a warrant of
arrest on the basis alone of the criminal information that had been filed in court, the Supreme
Court said that, that warrant of arrest was invalid because the court could not have determined
the existence of probable cause only on the basis of the criminal information. Alright. So, this is
your distinction now by virtue of that ruling in Soliven vs. Macasiar. You recall that case of
Soliven vs. Macasiar of course and ah, I can understand that the Supreme Court had to make a
distinction because of the personalities involved.
You will remember that in the, in an abortive coup in 1989, Luis Beltran, a columnist in ah,
the newspaper The Philippine Star wrote in his column that at the height of the siege, Cory
Aquino, President of the Philippines had hidden under the bed. On the basis of this column, Cory
Aquino filed a criminal action for libel against Louie Beltran and against the editor, publisher and
other officials of Philippine Star, among them Max Soliven. Cory Aquino had to go to the City
Fiscal of Manila to swear to her affidavit. To swear to her affidavit-complaint against Luis Beltran
and the officials of Philippine Star. Then, of course Max Soliven, the others were asked to submit
their respective counter-affidavits. The prosecutor found the existence of probable cause and filed
the criminal information, and elevated Cory's ah, affidavit along with the copy of the allegedly
offending column. And the court issued a warrant of arrest. The court issued a warrant of arrest,
Soliven went up to the Supreme Court. Luis Beltran, on his own, also went up to the Supreme
Court. Soliven claimed that there was ah, there was no mentioned at all at no time in fact, did
Cory Aquino go before the judge for an examination under oath or affirmation prior to the
issuance of the warrant of arrest. The same thing was mentioned by Luis Beltran. Then, the
Supreme Court said there was no necessity for Judge Macasiar precisely to call Cory Aquino and
the, ah, witnesses of Cory Aquino because the judge could make a personal determination on the
existence of probable cause on the basis of the affidavits and whatever other evidence there may
have been submitted by the complainants, and eventually elevated by the fiscal to the court.
In the case of Beltran, Beltran also challenged, also challenged this and added one other
argument. He said the President of the Philippines is immuned from suit. Accordingly, the
President should not be allowed to sue. Because if the President is allowed to sue, then the
President will be compelled to come within the jurisdiction of the court. And if the President of the

56

Philippines comes within the jurisdiction of the court, the court might even find the President of
the Philippines in contempt. That is in violation of the sovereign personality that the President of
the Philippines has, considering the President of the Philippines, as head of state is supposed to
be the personification of the sovereign state that the President represents. The Supreme Court,
the Supreme Court disagreed with Beltran and said while it is true that the President of the
Philippines is immune from suit, it does not follow that the President of the Philippines cannot
sue. Immunity from suit is different from the right to file suit. Besides, the Supreme Court said this
immunity from suit that the President of the Philippines enjoys is personal to the President of the
Philippines, and the President may validly waive such immunity if the President so desires.
Alright. So, the personal determination of the existence of probable cause is
addressed primarily to the discretion of the judge. Addressed primarily to the discretion of the
judge, but the judge cannot exercise this discretion by simply looking at one document and not
the documents and the affidavits as well as the evidence that should have been elevated to the
court by the investigating prosecutor. While it is indeed an exercise of discretion on the part of the
judge, nonetheless this discretion is circumscribed by the very rule on what probable cause is and
what may be used for the determination of the existence of probable cause. Here, for the
issuance of a search warrant it becomes imperative for the judge to call the applicant and the
witnesses that the applicant may have to satisfy the judge that there indeed exists probable
cause.
And if you look at the jurisprudence on the issuance of a search warrant, note that the
Supreme Court said the judge cannot possibly determine the existence of probable cause on the
basis of reliable information alone. The applicant and the witnesses for the applicant must testify
before the judge of their own personal knowledge. And so for example, in the case of Quintero
vs. NBI, one of the witnesses brought by the NBI to Judge Dayrit in the City of Manila, Judge
Dayrit was then CFI Judge in the City of Manila, and it was Judge Dayrit who eventually issued
the warrant, the search warrant applied for by the NBI. Class, nakakatuwa ng konti ito. Quintero
was a retired ambassador who ran in 1970 for the position of delegate to the Constitutional
Convention. He was elected delegate and so he served as delegate. In the course of
deliberations, proceedings of the Constitutional Conventions, Quintero gave a press conference
and denounced Malacaang in that press conference, claiming that Malacaang had been
distributing payola to members of the Constitutional Convention in order to ensure that the New
Constitution would still allow President Marcos to run for President even as he would have
already completed his full two terms as President of the Philippines. Quintero even named his
fellow delegates who were supposed to have been commissioned by President Marcos to
distribute the envelopes, the payola. Okay. Malacaang of course denied this and the delegates
also denied the charges made by delegate Quintero. A few days after delegate Quintero made
that expos, NBI agents sued upon the residence of Quintero in Quezon City, Sta. Mesa Heights
in Quezon City. They knew exactly where to go. They went up the house of Quintero, went into
the bedroom of Quintero, opened one of the cabinets and took allegedly from the top of the
cabinet one maleta, which the NBI agents said they opened and contained and the maleta was
full of money, cash. And so the NBI said it was Quintero after all and not Malacaang distributing
money to the delegates. Quintero went up to the Supreme Court on the issue of the validity of the
search warrant, which was used by the NBI in effecting the search. The Supreme Court noted
that the witnesses raided by the NBI before Judge Dayrit did not testify of their own personal
knowledge about that money supposed to have been in their cabinet or in their maleta which was
found in the cabinet in the residence of delegate Quintero. One of the, one of the witnesses that
the NBI presented before Judge Dayrit was the incumbent Congressman of the 1 st District of
Leyte at that time, Congressman Mate. And the decision of the Supreme Court in Quintero vs.
NBI spoke of the inadequacy of the testimony of Congressman Mate since he did not testify of his
own personal knowledge. And according to the Supreme Court, it was full of holes so to speak.
There was nothing certain at all in his statements and so the Supreme Court said the search
warrant issued by Judge Dayrit was an invalid search warrant. Unfortunately, for delegate
Quintero, the decision came after Quintero was already dead. Wala na. Again, again, ah, it was
necessary perhaps to at least clear the name of delegate or Ambassador Quintero.
And to give us jurisprudence on the need, the need for the statements to be, positive
declaratory statements of the own personal knowledge of the applicant or the witnesses for the
applicant for a search warrant. Now, the Constitution says upon examination under oath or
affirmation of the witnesses of the complainant or the witnesses he may produce, oath is taken by
one who believes in an Almighty, someone greater than himself. That's, oath. So help me God. Or
so help me Allah or whatever. One who does not believe in any God or in anyone higher than
himself, syempre cannot be asked to swear, cannot be asked to take an oath because he does
not believe in taking an oath. Wala na s'ya. So he merely says "I affirm." That is the affirmation.
This is, for those who do not have any God at all, eto nga 'yung mga ano, these are the people
who when they wake up in the morning go directly to the mirror and they pray to whoever is in
front of him. Ikaw Panginoon ang pinakamagaling sa lahat. Panginoon, ganyan, ganyan. And so

57

before going to sleep in the evening, he goes before the mirror again. Matutulog na po ako
Panginoon. Magaling ka pa rin Panginoon. Ikaw pa rin ang ano, 'yon. And so for them, they do
not take an oath. They take ah, what is known as an affirmation and so they simply say "I affirm."
When they are asked that they, they are asked to tell the truth and nothing but the truth in the
investigation to be conducted or the examination to be conducted by the court.
Particularity of Description
The fourth requisite, this particularity of description not only, not only, should the warrant
particularly describe the place to be searched but also the things to be seized or confiscated
pursuant to the search warrant.
In the case of the warrant of arrest, the warrant must identify the person to be arrested. In
a 2003 decision in the case of People vs. Tee, the Supreme Court said that the purpose for the
requirement of particularity of description is to identify the person or things to be seized or the
place to be searched. So that, the serving officers will not seize items that are not described
therein.
The second reason according to the Supreme Court is that the description, the
particularity of description will leave the peace officers or the serving officers no discretion at all
on what item or items to seize, or what place to search, or who to arrest. Preventing therefore any
fishing expedition to be done by the serving officers. Alright. While the Constitution speaks of
particularly describing, the Supreme Court has said that the description need not be a very, very
detailed description. The description may be sufficient if it will in fact identify the person to be
seized, to be arrested and the place to be searched, and the things to be seized. Alright. If it were
a warrant of arrest, how do you identify, how do you describe particularly the person to be
arrested by his name? If the name is known and the warrant of arrest carries the name of the
person to be arrested, that is sufficient description. If the name of the person to be arrested is not
known, then as a rule, the warrant would fail to satisfy the last requisite of particularity of
description. But where the person, where the name of the person to be arrested is not known, it is
possible to have a valid warrant of arrest by issuing the warrant of arrest in the name of John
Doe. Thus, we have what is known as a John Doe warrant. A John Doe warrant is a valid warrant,
provided that the warrant of arrest contains a description of the person to be arrested who is,
because his name is not known, who is now denominated as John Doe. The descriptio persona,
description of the person to be arrested.
The description of the person to be arrested, however, must be particular such that the
person effecting the arrest or serving the warrant of arrest will be able to identify the person to be
arrested. Absent such description of the person, the John Doe warrant is infirm and invalid. And
so, you may have a warrant of arrest with many, warrant of arrest directing the peace officer to
arrest several persons. Alright. Several persons by name, ok 'yon. Now, several persons whose
names are not known, you have, number 1 John Doe. And then, kung dalawa, you have James
Doe. Kung pang-tatlo, you add Thomas Doe. Kung apat, you add William Doe. Hindi ko lang
malaman kung bakit hanggang ngayon we use American names. I really do not know that. Oo.
But if you, if you're warrant of arrest, for example contains all these names, you know then the
real names are not known. So, there must be a description for each of these persons named
hereto identify them and to make it possible for the arresting officers to identify the correct person
to be arrested. Oo, kaya ang problema ko lang dahil mga, mga American names, bakit hanggang
ngayon hindi pa ito pinalitan ng Juan, Juan Doe. Eto, William, Guillermo Doe. 'Yan.
Thus, class in the case of Pangandaman vs. Judge Casar, where the judge issued a
warrant of arrest for the arrest of 50 John Doe's without any particular description of the 50
persons who were supposed to be arrested. The Supreme Court said the warrant is in the nature
of a general warrant and therefore, it is an invalid warrant. Alright.
Search Warrant
We go to the search warrant. The search warrant must particularly describe place and the
things to be seized. Place. If the place is a house for instance, there is sufficient description if the
address is known. The house situated at number 33 Mendiola St., Manila, that would be a
sufficient description of the place to be searched. Question. On the basis of such a search
warrant, 33 Mendiola St., Manila, beside the house is a garage, will the search warrant be
sufficient authority to search the garage? Inside the garage is a car. Will that warrant be sufficient
authority to search the car inside the garage? Beside the garage is a doghouse. Beside the
doghouse is a cathouse, and beside it is a birdhouse. Will the warrant be sufficient authority to
search all of these? The doghouse, the cathouse and the birdhouse. If they are part of, part of the
house in that for example, they are in one compound, they areYour garage is to be treated as

58

an extension of the house. And so, such a And so the garage may be subjected to a search.
What about the car inside the garage? Yes.
But when, when the searching party goes to the house. They search the house, they find
nothing of the items listed in the search warrant. As they are about to go they notice that there is
a car parked along the street in front of the house. Can they search the car in front of the house?
Kasi walang garahe 'yung bahay. There is no garage. Can they search the car? No. No.
Apparently, the car which is now parked along the street is not an extension of the house.
General Warrants
General warrants insofar as the things to be seized are also deemed invalid warrants. So
in the case of Burgos vs. Chief of Staff, for example, where the warrant, where the search
warrant directed peace officers to go to the publishing offices of Metropolitan Mail and We Forum,
and they're to seize papers, documents, machines, equipment used in the printing of Metropolitan
Mail and We Forum. The Supreme Court said the description of all documents, papers,
equipment, facilities found was deemed to be a general warrant. And therefore, the Supreme
Court said the warrant of arrest, the search warrant issued therein was invalid. Now, only the
things mentioned in the warrant are to be seized. Except only when you apply, as we will discuss
later, the plain view doctrine.
Now, with respect to the place nga pala, we have ah, a number of relatively recent cases
2001-2002. People vs. Court of Appeals, People vs. Court of Appeals. When the police applied
for a search warrant in court, as...is reflected in the records of the question and answer session
conducted by the judge. The testimony of the applicant and witnesses showed that they wanted
to search the apartment, the apartment house, the apartment unit immediately adjacent to the
corner unit which was a store, Abegail's Variety Store. Ito ang kanilang sinasabi, dito dapat, ito ay
dapat ma-search. When the court issued the search warrant, I don't know if it was the judge's
fault or the fault of the clerk, but when the warrant was handed to the police officers, the warrant
said "Abegail's Variety Store", not the apartment unit beside the Abegail's Variety Store. But when
the policemen served the warrant, they knew where to go because they were the ones who
testified that they knew where to go. So they immediately proceeded to the apartment unit beside
the Abegail's Variety Store. The Supreme Court said that the search was invalid. The search was
invalid because it was not within the competence of the peace officers serving the warrant to
change or modify or amend what was in the search warrant itself. Alright.
We have a 2001 decision, Algol vs. Court of Appeals. Ano naman 'to, compund.
Compund, mga The warrant spoke of unit number 2. Unit number 2. But when the peace
officers went to unit number 2, they saw the person supposedly owner of number 2 to be in
number 8. So they also proceeded to number 8 and searched number 8. Again, the Supreme
Court invalidated the search of number 8. And of course ah, one of the ah, more amusing, one of
the more amusing search warrants issued was the search warrant issued for the search of the
premises, premises of a Paper Industries Corporation of the Philippines. And so in the case of
PICOP (Paper Industries Corporation of the Philippines) vs. Asuncion, the Supreme Court
said that is in the nature of a general warrant, it does not contain any particular description at all
because the compound of PICOP contained at least 200 buildings. Merong air strip, merong mga
warehouse, merong ano. And, since there was no particular description of the actual place of
building to be searched, the Supreme Court said this warrant of, this search warrant is an invalid
warrant.
Note class, in relation to things, because a warrant, a search warrant may enumerate the
things to be seized in the place to be searched. Note also, note also that it may later appear that
of the items enumerated; guns, shabu, marijuana, paraphernalia for shabu making, it may later
appear that from a reading of the transcript of the proceedings here, it may later appear that there
was absolutely no probable cause to include paraphernalia for shabu and shabu perhaps for guns
and marijuana merong, meron.
The Supreme Court said itong, this principle lang, the Supreme Court said the search
warrant is severable. Severable. And so, while it may be invalid with respect to shabu and
paraphernalia for shabu, it is valid for the guns. So, you simply segregate. If your searching party
perhaps also seized this, then ito ang covered by the exclusionary rule. The others would not be
covered by the exclusionary rule if indeed it is shown that there was probable cause to include
these items. Alright. Look at, since you have mastered Criminal Law, Criminal Procedure already,
so alam na alam n'yo na 'yang mga, mga ano d'yan. For example, what are the items that may be
seized? Subject of the offense, stolen or embezzled property and other fruits or other proceeds of
the offense, and of course items that may be used as instruments in the commission of the
offense. Sa recitation ko lang ito tinatanong sa klase ko noon. You are effecting an arrest and

59

then subsequent search and confiscation. The crime committed is rape. What instrument do you
seize for purposes of, which may have been used in the commission of the offense?
Then class I would like to call your attention again to the requirement in the rules, which
has also been reiterated in jurisprudence on the manner in which, in which the search may be
done. The search of a house for example has to be made in the presence of the lawful occupant
of the house. If the lawful occupant is not there, then in the presence of a member of the
household. If there is no member of the household available, then in the presence of two persons
of sufficient age and discretion living in the vicinityAnd class in the case of People vs.
Salanggit, the matter of the issue of, where the search, rather, is forced. If force is used by the
serving party, force is used in the matter of serving the warrant, will that in any manner invalidate
the warrant? First, the Supreme Court in People vs. Salanggit said reasonable force may be
used by the serving party. In that case, they went to the house. They knocked at the door. The
door was not opened yet they continued to hear activities inside the house. Presumably, they
were hiding things or destroying things, etc. And so instead of waiting for the door to be opened,
the peace officers broke down the door to be able to enter the premises. The Supreme Court said
that this was a valid search. There was a valid justification for the use of reasonable force in order
to serve the warrant. Now, if things like this are included in, number 2 and number 4 are included
and so, they have been seized in violation of Section 2. They may not be introduced in evidence.
They are not admissible in evidence. But what happens will, these be returned to the person or
persons from whom they were taken. As a rule, you return whatever may have been taken.
Warrantless Arrest
However, where the item or items are prohibited by law then they will not be returned to
the person or persons from whom they were taken. They will remain in the custody of the law or
in the custody of the court. They will remain in custodia legis. Alright. Earlier we said as a rule, a
search or an arrest with a warrant is reasonable. Assuming that it is a valid warrant, of course.
And as a rule, a search or arrest without a warrant is unreasonable. However, you have mastered
already Criminal Procedure and so you know that from the rules, there are instances when an
arrest may be validly made even without a warrant of arrest. And so you have three instances
where First of course is what is known as an in flagrante arrest. The rules speak of any
policeman, peace officer or even a private citizen being justified in effecting an arrest of a person
who is committing, has just committed, or is about to commit an offense in the presence of the
person effecting the arrest. Okay. Wala tayong problema d'yan. 'Yung mga by bust operations,
because the exchange between the pusher and the poseur buyer is made and it is the poseur
buyer who normally effects the arrest. Alam na alam n'ya, kitang-kita n'ya. Sila pa ang nagpalitan
ng, lalo sa by bust operations, nagpalitan ng money and prohibited drug.
Since you have mastered Criminal Law and, ah, I just would like you to look at Umil vs.
Ramos, and the finding of the Supreme Court that rebellion is a continuing offense. In a
continuing offense, can you therefore effect an arrest at anytime under any and all circumstances
because the person to be arrested is deemed to be committing the offense at anytime of day or
night if it is a continuing offense? If rebellion is a continuing offense, can you arrest a rebel who is,
without a warrant, who is sleeping? Is he committing rebellion while sleeping? Or if he is engaged
in some other very unrebellious activities in the evening for example, you arrest him, would the
arrest be valid considering that rebellion is a continuing offense?
Then class I would like you to look at another 2001 decision, the case of People vs.
Molina. Because in People vs. Molina, the Supreme Court said that in order to make a valid in
flagrante arrest, there must be an overt act. In People vs. Molina, a policeman saw two persons
inside a tricycle as passengers in a tricycle, in the tricycle. One was holding a bag by his lap. The
policeman stopped the tricycle and accosted the person holding a bag by his lap. The fellow
immediately alighted and talked to the policeman, and said "boss, pwede naman nating pagusapan 'to eh." Arrested. Alright. Was the arrest valid? It turned out that he was carrying
prohibited drugs. And so theoretically, he was committing an offense by merely possessing
prohibited drugs. In People vs. Molina, the Supreme Court said no. the arrest was not valid
because there was nothing to show the criminal enterprise at all by simply inside a tricycle,
holding a bag there and while the tricycle was moving of course. So the Supreme Court said it
should not be merely suspicion. There must be an overt act.
An overt act indicative of the criminal enterprise. That is, an overt act which will show that
the person is committing, has just committed, or is about to commit an offense and number 2, that
this overt act is committed in the presence of the person effecting the arrest. Okay. 'Yung mga
ibang kaso medyo anuhin n'yo na lang. Kasi kamukha nung ano eh People vs. Rodriguez, 'yun
ay dapat by bust 'yun eh. Government agent. He posed as a user. So he went to the pusher. At
the door of the house, doon sila nagpalitan ng ano. The fellow, the government agent gave
marked money. In return, the pusher gave prohibited drugs. Instead of effecting the arrest right

60

there and then, the government agent went back to the office. Oo, nag-type muna s'ya ng
kanyang report. Sa report n'ya, ang galing ko. Bilib na bilib sa akin 'yung pusher na ako eh ano,
ako ay adik, na ganyan, ganyan o. So, 'yon. And then he went back in the afternoon to effect the
arrest. The Supreme Court invalidated the arrest, invalidated the arrest on the ground that this is
not ah, effected when the person arrested is committing, has just committed, or is about to
commit an offense.
The question I would like to pose however in the case of People vs. Rodriguez, is true,
you do not qualify this under the first paragraph, but what about the second? When an offense
has just been committed and there is probable cause to believe based on personal knowledge of
facts or other circumstances that the person to be arrested has committed the offense. Ito,
personal knowledge na ginawa n'ya, ginawa nung pusher. Alright. But notice class the two basic
requisites. In the case of the 2nd paragraph, the 2nd instance when a valid warrantless arrest may
be made. First, that the offense has just been committed. In the case of Go vs. Court of Appeals,
six days had already lapsed from the time the offense was committed. That was certainly ah, way,
way beyond the ah, intention of the phrase "had just been committed." In fact in People vs. Del
Rosario, the Supreme Court said the lapse of one day, lapse of one day, erases or removes the
case from coverage of the 2nd paragraph. The 2nd instance. After one day then the offense is not
one that had been just committed. Alright. Here, so 'yon. Just committed. The 2 nd is that there is
probable cause. But the probable cause must be based on personal knowledge of facts or other
circumstances. Personal knowledge of facts or other circumstances. That is why there is probable
cause because precisely, of one's personal knowledge of certain facts. And so in the case of
Robin Padilla. Robin Padilla, driving a Pajero here in Luneta. He sideswipe a balut vendor but did
not stop and went on, proceeded on. Policemen who witnessed the incident could not of course
chase Robin Padilla. They called up fellow policemen who were stationed in the place where the
car ostensibly would go to. And so policemen who received the message posted themselves
along Roxas Blvd. And there flagged down the Pajero driven by Robin Padilla when the car
arrived. The Supreme Court said there was a valid arrest even if, even if there was no, ah, even if
the policemen actually effecting the arrest did not see the actual incident. They had probable
cause to believe, they knew that an offense has just been committed on the basis of the report
and they have probable cause to believe from their own personal knowledge because they saw
the Pajero, the car with a dent, etc. 'Yon. So according to the Supreme Court there was a valid
arrest.
Class, there is one case, in the case of Cadua. Matindi ito eh. This happened in Quezon
City, in Fairview. One of the houses there, there were only 2 ladies, an old maid and her niece na
naroon. 'Yung akyat-bahay gang, three men entered the house. Held up the two ladies, tied up
the two ladies in fact and carted away television set, etc. Mga gamit. The ladies were able to
immediately, after the three men had gone, the ladies were fortunately able to extricate
themselves and were able to notify the police. So policemen went to the house. The ladies
reported the incident. They described the three persons, the three men who held up or
perpetrated the akyat-bahay thing. Policemen and their patrol car rode the area in Fairview. They
came upon three persons. Three men who fit the description. Because the description It turned
out they were not the persons. It just, it was a coincidence that there were also three of them ano,
walking. Now, this is the case really. The case arose this time in an action filed by the three
persons against the policemen. Because the policemen were not even able to file cases. Kase
eventually nung tawagin nila 'yung dalawang babae, sinabi nung dalawang babae hindi 'yang
mga 'yan eh. Pero naaresto na. Medyo nagulpi na 'yon. Medyo naano na, nakiliti na ng konti dahil
ano. Eh and so an action was filed by, by the three against the policemen. Imagine, the Supreme
Court said the arrest was valid. The arrest was valid under paragraph 2. Under paragraph 2. It
does not matter that no criminal case was eventually filed because there was no basis for the
filing of criminal cases anymore. Considering that it turned out that these people were really not
the perpetrators of the offense. Ang justification lang kasi the issue was whether or not there was
a violation committed by the policemen in effecting the arrest. The Supreme Court absolved the
policemen, absolved the policemen of any liability for effecting the arrest. Considering the
circumstances, how can you blame the policemen who after having been given that kind of a
description came upon the three persons? Tatlo, tatlo, naka-istambay din 'yung tatlo o whatever.
So, 'yon. Alright.
Then finally class number 3 is of course, ah, the arrest of a person who has escaped
from confinement, or while being transferred to or from one place of confinement to another. Now,
waiver of the right to question the illegality of the arrest because in that, in the arrest of an
escapee eh, wala naman tayong problema don. Waiver of the right is effected only when the
fellow submits to the jurisdiction of the court and enters a plea. Prior to that, he may question the
validity or the legality of the arrest. Okay.
Warrantless Searches; Valid Waiver

61

Then we move on to cases of warrantless searches. The first of these cases is valid
warrantless searches, is when there is a valid waiver. A valid waiver. Just like any right, the
waiver must be made voluntarily, willingly, intelligently. That is, there must be a right. The person
who waives must know that such a right exists and that he has such a right. And third, he willingly
and voluntarily waives the right. Alright. Class, ah, I think it was in 1993, 1994 or thereabout
where there were a lot of cases decided by the Supreme Court na medyo nakakatakot ng konti.
I'm very glad that after all of these, we now have People vs. Barros. We now have Anyag vs.
Commission on Elections. Because you see class, ito'y, ito talaga classic itong dun sa Supreme
Court decision. At a police checkpoint, mobile checkpoint. Basta may checkpoint at the corner of
a street, may checkpoint. And then random ang paghinto ng motor vehicles. Here comes an
owner type jeep. There is a driver and one passenger beside the driver. So hininto. "Good
evening sir," sabi nung police with a flashlight. 'Yung isa merong baril, nakatutok ng ganyan ano.
Alright. "Good evening sir. Mukhang ginabi kayo ser ah." And then the flashlight is ah, pointed to
the backseat. The backseat, there is a newspaper that partly covers a bag. Bag is seen partly
covered by a paper. And so the policeman says "Sir may bag pala kayo dito. Pwede bang
tingnan?" There is a bag in the backseat. Can I look at the contents of the bag? Neither the driver
nor the passenger answered. Nobody answers at all. So tuloy tuloy na kinuha. Binuksan.
Prohibited drugs. Aha, huli. Sabi ng Supreme Court the silence was consent. Okay. Then the
worst, the worst case is some ah, virtually the same. Virtually the same. "Ah sir you have a bag
here. Can I look at the contents of the bag?" And this time the passenger says "No of course not.
You don't have a warrant of arrest. I know my Constitutional Law.
In Balmonte vs. De Villa you are only entitled to a visual search." Sabi ng Supreme
Court, then the cause of that refusal, then the policeman will have probable cause to believe that
there is something in the bag that is prohibited, and therefore may effect the search. Patay ka na
don. And so class, at sa dami masyado ng cases dito ng mga pa-ano ano, lahat. I would like to
call your attention to only five cases which I think, I think are ah, case law, the current case law on
the matter. One, People vs. Barros. Silence does not mean consent. The silence of a person
may only be indicative of his respect for the supremacy of the law. It should not be considered as
a waiver of a Constitutional right.
Second, Anyag vs. Commission on Elections. The ruling in Anyag is this, consent
under coercive circumstances is not valid consent at all. Look at the antecedents why the
Supreme Court said the driver of Congressman Anyag was under coercive circumstances when
he gave consent. Election period na. May total ban on firearms. Here was the Pajero of
Congressman Anyag driven by his driver. Ang driver lang ang sakay. He was stopped at a
COMELEC Police checkpoint. He alight, he was made to alight. He opened the backdoor. And
there were 15 agents there who saw a package wrapped in clothing. He was asked, "Pwede ba
natin makita kung ano 'yang nakabalot na 'yan?" The driver was the one who took the package,
opened it. It contained guns. "Kanino bang baril 'yan?" "Kay Congressman po." 'Yon. He called
the Congressman. He was arrested he called the Congressman. Magaling din naman si
Congressman Anyag. "Ah sino ito"? Ah 'yung sa COMELEC. Ah oo nga. Kamalas naman nung
aking driver. Alam mo, sabi ni Congressman Anyag, "alam mo, alam n'yo, alam n'yo, inutusan ko
'yan para i-surrender na 'yang mga baril sa Krame. Bakit naman nahuli n'yo pa? Ba he is on his
way to surrender the guns." Anyway the COMELEC did not believe him. so, ah, criminal charges
were filed a against Congressman Anyag and the driver. Ah, why COMELEC? Because
COMELEC under the Constitution has the constitutional authority to investigate and in the proper
cases prosecute violations of Election Laws. Okay. Sabi ng Supreme Court, the consent given by
the driver of Congressman Anyag was not valid. Because, alone, the driver alone in the face of 15
agents, government agents, the driver could not do anything but yield or consent. There was
moral duress exerted over him. And so it is as if the driver had been coerced in to giving the
consent. That was not valid consent. Alright.
The third case I want you to remember in this connection is People vs. Damaso. In
People vs. Damaso the rule is simply, consent or waiver must be made by the person whose
right is being violated. So ito. 'Yung ah, team going after NPA rebels came upon a house in the
mountain. They knocked at the door of the house. It was opened by a young girl, a young lady
who turned out to be domestic helper of the owner. Sinabi, this house is being used as a safe
house for NPA rebels. Even now we know that there are NPA's inside the house. Ikaw siguro NPA
ka rin. The young lady said, "eh di pumasok kayo. Maghanap kayo ng mga NPA's." The team
went inside, effected the search. No NPA rebel was found but they found what turned out to be
subversive documents. Noong panahon pa ito na may subversion pa. Charged, the owner was
charged of course. The Supreme Court said there was no valid search. Not as against the owner
of the house because it was not he who gave consent. He can be, he can be held, to have given
consent only if he himself did give consent. Of course there is a, there is an aberrant decision
there.

62

We have Lopez vs. Commissioner of Customs. Ito naman nakakatuwa lang ito dahil
customs agents wanted to talk to this fellow, knew that he was been at the hotel. So the customs
agents went to the hotel, inquired kung anong room. And then they were told, so they went to the
room. They knocked at the room. The door therein. The door was opened by a lady. The agents
asked "where is Mr. so and so?" The lady said "oh he just stepped out. Bakit ano ang kailangan
ninyo? Sino ho kayo?" "Mga galing kaming Customs. Kailangan lang namin may makitang mga
ano, papel." "Ay di pumasok muna kayo intayin n'yo kung gusto n'yo." While inside, usap-usap
sila. "Ano bang mga papeles ang kailangan ninyo?" "Ay, papeles sa shipment na ito." " Teka
nandito 'yung kanyang attach case, tingnan natin baka narito 'yung mga papeles na hinahanap
ninyo." So, binuksan. Nandoon nga 'yung papeles na mga hinahanap. The Customs agents were
able to get hold of copies of these papers. In an action later, in an action by the Bureau of
Customs against this fellow, he claimed of course that these documents cannot be admitted in
evidence because they were obtained without his consent. They were obtained without the
corresponding search warrant, etc. The Customs agents said "aba but your wife gave them to
us." Sabi n'ya "but that was not my wife. That lady in the room was a manicurist. She was waiting
for me to come back so that she could manicure me." Ewan ko kung alin ang mamanicurin sa
kanya. Pero, pero in that case, the Supreme Court said valid waiver. Valid waiver given by the
lady inside the room. Because the Supreme Court noted that from the behavior, the conduct of
the lady, it was only normal for the Customs agents to be made, to be led to believe that she was
the wife. Bakit naman makikialam pati dun sa attach case etc. kung, alright, kung manicurist
lang talaga o ano.
Then class, Veroy vs. Layage. Veroy vs. Layage is also instructive because even when
consent is already given, the scope of the consent may be limited. The scope of the consent may
be limited. Oh so, what happened in the case of Veroy vs. Layage? In Veroy vs. Layage, the
same thing happened as in Damaso. But this time when the military team, military police team,
knocked at the door of this house found in the mountains, it was the owner who opened. tHe
head of the team said "itong bahay n'yo is being used as a safe house by NPA rebels. Even now
we think there are rebels inside." So, the owner said "Come in. You look for rebels in the house if
you can find any." They went around, opened cabinets if some people were hiding or whatever.
Eventually, there were no rebels of course, they found a gun, which turned out to be unlicensed.
Charged with illegal possession of firearms. The Supreme Court said the confiscation of the
firearm was unlawful. It was illegal. Firearm, the firearm is not admissible in evidence because
obtained in violation of Section 2. There is a very revealing sentence in the decision. The
Supreme Court said the firearm is not illegal per se. Is not illegal per se. True enough class, true
enough. If it were a gun that can be licensed, simply looking at the gun will not reveal whether it is
licensed or unlicensed. It becomes unlawful only if it is not licensed. But if it is licensed there
would have been no violation at all. And so, if the peace officers came upon the gun even, even if
the plain view doctrine were made to apply, they still cannot determine by simply looking at the
gun whether it was licensed or unlicensed. They learned that it was unlicensed only when they
learned that it was unlicensed only when it was, when eventually they asked for the license, etc.
And it turned out it was an unlicensed firearm. Class, I think that this ruling in Veroy vs. Layage
would apply where the gun is of such a make or caliber that it can be licensed. Because if it were
a machine gun for example, or a missile, then ah, there would have been no, no excuse. There
would have been no excuse, it would have been a violation clear and simple. Alright. So, 'yang
limang cases na 'yan and then add the cases involving airport security.
Airport security. Ah, that when a person checks in at the airport because he is an airline
passenger, he is deemed to have waived, waived his right against a search of his, of the items
that he checked in. So ngayon, dinadaan sa x-ray. Pero in some cases bubuksan pa. Binubuksan
pa ng security personnel sa airport.
In the case of People vs. Susan Canton, 'yun namang handcarried luggage.
Handcarried luggage. Sabi ng Supreme Court every airline ticket which constitutes the contract
between the passenger and the airline company contains that provision that the passenger allows
inspection of his or her handcarried luggage. Then in Johnson, the Supreme Court said 'yung
person na, 'yung person you are made to go through a metal detector and then you are physically
searched. In fact, in many instances dito even in, here in the Manila, in NAIA , in Ninoy Aquino
International Airport if you're going abroad they may even ask you to take off your shoes. Take off
your shoes, take off your socks. That's why you should have at least clean socks wag 'yung butas
na ano. You travel baka pa-anuhan ka. Oo. And ah, they followed, I don't know if this is
international already because if in America they do that also. They ask you to take off your shoes
and everything you have that has a metal, some metal in it. Your belt, your pen, coins in your
pockets, etc. And then you go through the metal detector and then you go sit down there and then
ah, patatayuin ka. You extend your arms and lahat. Talagang matindi na ang ano, security. The
Supreme Court said valid, these are valid searches. And these are searches deemed to have
been made with the consent of the passenger. Itong personal and body searches na sabi ng
Supreme Court considering the minimal intrusiveness, minimal intrusion into the person. The

63

gravity of the security interest involved. And the reduced privacy expectations of the passenger.
These body searches of airline passengers are valid. Okay.
Stop and Frisk
Next is a search made under the circumstances that would justify application of the
American doctrine stop and frisk. Stop and frisk. This is taken from an American decision in the
case of Tell vs. Ohio, where the Supreme Court of Ohio State said that a peace officer is justified
in accosting a person and searching him for hidden weapons if by the conduct or the behavior of
the person, there is engendered in the mind of the peace officer, the peace officer, a reasonable
ground to believe that this person is ah, about to engage in some criminal activity. The Supreme
Court said that if the conduct of the person will engender in the mind, in the mind of the peace
officer a reasonable ground to believe that criminal activity is afoot. In the case of Manalili, ah
'yung Sulayao kasi, policemen were on the way up the mountains because they, there were
reports that some armed men had been seen. As they were going up the path, they heard noises.
A number of people coming down very noisy. And when they saw the policemen, these people
ran away. Except one who was collared by the policemen. Searched. It turned out that he had an
unlicensed firearm. Charged. His defense that there was no valid warrant of arrest, no search
warrant, was of course brushed aside. The Supreme Court, our own Supreme Court used this
American jurisprudence to justify the validity of the search. Notice, notice class na it must be at
that time the search is made that the conduct of the person leads the peace officer to believe that
criminal activities afoot.
In the case of Malacat and the case of Manalili, pasuray-suray 'yung tao. Suray suray.
Red eyes daw. Hindi na makatayo nang maigi. He was searched. It turned out that he had
prohibited drugs with him. But later class, later, the Supreme Court said that not because you see
a person with red eyes, baka naman napuwing lang 'yon at ano.
In the case of Malacat even as the persons, the person arrested or searched was seen
two days earlier to have been among those who ran away because they were suspected of trying
to blow up some, something in Quiapo because these were supposed to be Muslim groups with
grenades. Pero at the time he was searched, he was just ah, leaning beside an electric post
doing nothing. That would not have justified the use of this doctrine stop and frisk since he was
not at all engaged in any activity that would engender in the mind of the peace officer the belief
that criminal activity is afoot.
Search as an Incident to a Lawful Arrest
The next, valid warrantless arrest is when this warrantless search rather is, when the
search is an incident to a lawful arrest. When the search is an incident to a lawful arrest so as a
rule class, as a rule, the arrest must precede the search. The arrest must precede, that means
there must be a valid arrest in order to justify the search. Alright. First, under the Rules of Court,
when a person is arrested, the person effecting the arrest is justified in making the physical or
body search of the person arrested, intended primarily to determine whether he has in his body
weapons which he may use to resist the therein. 'Yon. Okay. Now, jurisprudence on the matter tell
us that when a search is made as an incident to a lawful arrest, the search must be made
contemporaneous with the arrest which means at or about the time the arrest was made. And the
search is made only within a permissible area of search. Made only within permissible area of
search which refers to the place within the control of the person.
July 9-12, 2004
control of the person arrested was perhaps a place where she may remove certain
evidence. Where for instance, a snatcher snatches the bag of a lady pedestrian and then runs.
Policemen gave chase. Along the way he drops the bag or whatever and then he is finally
collared by the policeman several hundred meters away from the, where he, where he dropped
the bag. That the place where he dropped the bag would still be within the permissible area of
search.
But as a rule class, where a person is arrested in the streets for example, then it is not
justifiable for the person effecting the arrest to bring him to his house and to search the house.
That would not be covered in your permissible area of search anymore. Now, there are a number
of cases where the Supreme Court justified as a valid search, as an incident to a lawful arrest,
instances where the search took place before the arrest and yet the Supreme Court said valid
search as an incident to a lawful arrest.
Way back, the case of Posadas vs. Court of Appeals. Suspicious looking. When the
policemen called him, he ran away. The policemen gave chase. And then when they caught up

64

with him, opened the bag. 'Yon. There was, there are prohibited items in the bag and so he was
arrested.
In the case of People vs. Tangliben. 'Yun din. Accosted because suspicious looking. Ito,
in the case of People vs. Lacerna. A policeman boarded a bus. Bus. And then sat in one of the
seats, a sat beside the window. According to him, there was a passenger in front of him, seated in
front of him with a bayong beside him. And he smelled the distinctive aroma of marijuana. And so
he placed his hand inside the bayong. True enough, marijuana. So he, nag-search muna s'ya and
then effected the arrest. Sabi ng Supreme Court valid warrantless search. Valid warrantless
arrest. Ako naman, sinasabi ko lang napakagaling naman n'ya. Napakagaling n'ya. He knew the
distinctive aroma. Baka alam na alam n'ya talaga. Oo. He must also have been very well
acquainted with marijuana.
The case of People vs. Malmstead, where there was a checkpoint in, between the,
between the boundary, near the boundary of La Union and Benguet. Because there were reports
that drugs were being brought to Baguio by people using the ordinary buses, transport to Baguio.
So, they stopped one bus, one passenger bus, asked the passengers to alight. As one Caucasian
was alighting with his shirt outside, not tucked in, these people saw some a bulge by his waist, by
the waist of this Caucasian. So, they, they called the Caucasian and asked, "What is that bulge?"
because they thought that it was a gun. "What is that bulge?" The Caucasian showed them the
bulge. It was a beltbag. The beltbag, the beltbag is used mainly by mga kundoktor sa bus where
they place loose change. Then they asked "What is inside your beltbag?" He opened it and it
contained prohibited drugs. He was asked to go back in, to board the bus again and point out his
luggage, which they took down. And they opened the luggage and true enough it contained more
prohibited drugs. Sabi ng Supreme Court valid arrest. Valid search as an incident to a lawful
arrest. And then of course, the case where as a passenger was alighting from the bus in the bus
terminal, where policemen were stationed. Informants informed the police, "'Yan na, 'yan ang
pusher. 'Yan ang may dala. 'Yang bag na 'yan puno 'yan ng.." Informants who appeared to be
reliable informants. So they accosted the passenger. Opened his bag and true enough, it
contained prohibited drugs and so arrested. What are we saying then class, as a rule there must
be an arrest before the search. And the arrest must be lawful. If the arrest is made without a
warrant, then the arrest must fall within any one of the three exceptions we earlier mentioned.
Otherwise, as a rule, no search should be made on that basis if there has been no valid prior
arrest.
However as we said, in a number of these cases which the Supreme Court cited where
there is a valid basis such as upon an informer's tip and coupled by the suspicious behavior of the
person. A very suspicious behavior of the person and after the policemen called him, he ran
away. Distinctive aroma of marijuana. The very presence of the informer's pointing out the
person. People vs. Malmstead, a case of a bulging, a bulge in the stomach or in the waistline,
which led to the discovery of, to the discovery of prohibited drugs. 'Yung mga 'yon. Those are
your exceptions apparently, which justified the search having been made even before the arrest.
But all of these are lumped up in our jurisprudence under search as an incident to a lawful arrest.
Search of Vessels and Aircraft
Alright. The 4th situation is where the search of vessels and aircraft. Search of vessels
and aircraft. Because of course vessels may, if the police still have to go to court to ask for a
warrant, the vessel or the aircraft may already leave. But notice class the case of People vs.
Aminodin, People vs. Encinada, as distinguished from the case of People vs. Saycon.
Because in Aminodin, there were two days that, lapsed between the tip, the information received
and the arrival of the boat. The information given or a tip received was may sasakay ng barko
pagdating d'yan, arestuhin n'yo dahil may dalang green bag 'yan. At ano, at 'yan eh mga
prohibited articles ang dala.the Philippine Constabulary did not do anything for two days but
simply waited for the boat to arrive. The Supreme Court said they have ample time to obtain a
search warrant. And so the search was not, the warrantless search was not valid.
And the same thing in Encinada, but in People vs. Saycon, where the, they received the
tip or the information in the early hours of the morning, and the boat was supposed to leave at 6
o'clock in the morning, then there was really no more time to obtain a search warrant. And when
they went to the vessel and accosted the suspect and effected a search, the Supreme Court said
there was justification for such a warrantless search.
Search of Moving Vehicles; Visual Search
Moving vehicles. Search of moving vehicles. Valmonte vs. De Villa. So now, we have
jurisprudence to the effect that mobile checkpoints can be set up when dictated by the exigencies
of security. And so, however in Valmonte vs. De Villa as well as in the resolution on the motion

65

for reconsideration, the Supreme Court was very specific, the search shall be limited to a visual
search. Visual search. Ang ibig sabihin ng visual search may flashlight sila. 'Yun lang makikita
nila. The driver cannot be made to alight and open the luggage compartment at the back of the
car. The people inside the car will not be required to open glove compartment. They are not even,
the policemen are not even justified in opening the door of a kotse and looking inside or under the
seats. So, and then the Supreme Court particularly in the matter of, in the resolution on the
motion for reconsideration was emphatic on the politeness. Mga courteous daw itong mga
policeman. "Magandang umaga po. Magandang gabi po. Mawalang galang na po umalis na kayo
d'yan." Oo. So 'yon, 'yon. But that is valid case law today class.
Now, Caballes vs. Court of Appeals. In Caballes vs. Court of Appeals, the Supreme
Court said even at mobile checkpoints or in the matter of a moving vehicle, the search may be
made and the search may either be a visual routinary search or routine search. Or it can also be
an extensive search of the vehicle. The visual routine search of the vehicle is that what is, is that
which is contemplated in Valmonte vs. De Villa. In Caballes, the Supreme Court said an
extensive search may be made on the vehicle if there is probable cause. 'Yun pa rin. Probable
cause. Not just a mere suspicion. What happened in Caballes, police, a policeman saw a truck
open ang likod. Fully covered with kakawati leaves, I'm sorry but I don't know what kakawati
leaves are. Pero covered by kakawati leaves. Such that whatever may have been covered under,
under the leaves was not open to the eye. The policeman stopped their truck and made a search
without a warrant. He justified the search by saying that it is not normal for a truck to have
kakawati leaves. Hindi naman daw yata You don't ano, what do you call thisYou don't
transport kakawati leaves if apparently it is without any commercial value. So he was suspicious
sabi n'ya. His suspicions were aroused when he saw this truck covered with kakawati leaves. And
so he did an extensive search. Sabi ng Supreme Court, that suspicion is not probable cause. And
so the extensive search made by the policeman was not valid. It was not valid. It was therefore re
an unlawful search.
A different case in a latter, a 2003 decision, the case of People vs. Libnao. In People vs.
Libnao, ang pagkakaiba sa Caballesthe police were already conducting surveillance on the
fellow. Several days surveillance. Suspected na talaga ito na drug pusher. And then, on that, on
the day when the search was made, he was riding a tricycle. Riding a tricycle. And he had a
package with him. The tricycle as stopped. Moving vehicle pa rin 'to. The tricycle was stopped
and then the policeman asked he be allowed to see what was in the package. The Supreme
Court said valid, valid 'yon. Valid 'yong extensive search because there was already probable
cause occasioned by the days of surveillance which the policemen had been conducting on this
suspect. And so, 'yan ang ating ano ha. Pag motor vehicle, visual search lang. Visual search
ordinarily. You go to an extensive search only when there is probable cause. And in the case of
People vs. Libnao, there was deemed to be probable cause because of the days of surveillance
conducted by the policemen on this particular identified suspect. 'Yung mga ibang cases d'yan on
motor vehicle kamukha nung Mustang Lumber, truck na may lumalabas na ano, lumalabas na
parangbecause the truck was carrying lumber. So lampas sa body ng truck although cinoveran
ng, ng canvass. So, parang kita rin 'yon. In fact in Mustang Lumber it could have been more of, it
could have been more of plain view than, than motor vehicle.
Conduct of Inspection
Sixththe examination, inspection. Actually this is not, this is not, this is more of an
exercise of the police power. The conduct of inspection, inspection of establishments like
restaurants or compliance with sanitary regulations, inspection of buildings for compliance of
building or fire regulations and so on. This is really not a search. But there is intrusion into the
premises without an actual search warrant, justified by the fact that this is an exercise of the
police power. Ang mga sanitarians for example, sanitarians employed in the city government
papasok sa restaurant. Alam nila na Intsik ang may-ari. Didiretso kagad sa kusina. Maghahanap
ng kung ano don, ng mga Paglabas n'ya o ano, Ching, anong ginagawa bakit may tatlong
pusang nakatali don? Para sa, san 'yon, sa siopao? Ha? Eh di, 'yon. Di agad agad aaregluhin na
s'ya. 'Wag muna, 'wag muna ikaw umalis. 'Wag muna. Halikayo muna, kain muna kayo. Hindi,
hindi ako kakain kase may mga kasama ako. Hindi, papasukin mo kasama mo para kumain na
rin. Sabi n'ya, pare sige na sabihin mo sa ano labindalawa pala kasama. Tapos 'yon,
pakakainin na 'yon. Paiinumin pa at ano. Pagkatapos non tatayo na, sasabihin na sa may-ari "oy,
asan na 'yung sukli?" D pa nagbabayad sukli na ang hihingin. Anyway, eto, this is really not a
search but this is more of precisely the exrecise of police power.
Plain View Doctrine
The next is the plain view doctrine. People vs. Musa. On plain view. Under the plain view
doctrine, the following requisites must concur. First, the peace officer or the government agent
must have had a prior valid intrusion into the premises. That means that the peace officer or

66

government agent must, must have a valid reason to be in the place where he is. Legitimate ang
kanyang pagpunta doon. Second, without actually conducting a search, he chances upon or
stumbles upon a prohibited item. Number 3, the prohibited item is in plain view, it is open to the
eye, it is open to the hand. And number 4, the doctrine, the plain view doctrine therefore justifies
the seizure. Wala nang search dito. There is no search because the prohibited item is in plain
view. There is only a seizure or a confiscation of the item.
Okay. So, in Musa, there was a warrantless arrest. No, no. They served a warrant of
arrest. And so they were there. They had every reason to be in the kitchen of the house of the
person arrested. They saw a white plastic bag, opaque plastic bag hanging by the rafters. The
policemen asked that the bag be brought down. They opened the bag. It contained prohibited
articles. Okay. When presented in evidence, the prosecution sought to justify the taking, the
confiscation of this on the ground that these items were in plain view because they were
allegedly, allegedly in ah, within ah, open to the eye. The Supreme Court said no. You cannot
apply the plain view doctrine here because the policemen could not see what was inside the bag
when it was hanging by the rafters. Because the bag was of course an opaque white plastic bag
and you could not see what was inside. And yet a subsequent case for example, pag open ang
likod ng car the policemen saw something wrapped in newspaper. Whatever was inside the
package wrapped in newspaper was not in plain view. They could not therefore justify the seizure
of the items since this..you could, they could not see what was inside the package since it was
wrapped in newspaper.
In People vs. Compacion, dalawang policeman naglalakad along the street they passed
a house where there was a fence. They looked inside and they saw marijuana plants. In the
backyard. They did not jump over the fence. Instead, they went to the front door, broke, opened
the front door and went to the backyard to confiscate the marijuana plant. Again they sought to
justify their confiscation on the basis of the plain view doctrine. The Supreme Court said no. No.
they had to break through the house, the door, go through the entire house all the way to the
backyard. They did not have the right to be in the backyard. They were not in the placethere
was no valid prior intrusion into the backyard.
There is a 2003 decision involving shabu. Pero ganito istorya. Policemen were given
information that a vehicle had been carnapped. Carnapped. So they knew they had the
description of the vehicle, they had the plate number of the vehicle. Two policemen chanced upon
this vehicle. Apparently, tunay, ito na 'yung carnapped vehicle driven by somebody named Abdul.
So they accosted, they stopped the vehicle, accosted the driver and asked that they be shown
the registration papers of the vehicle. Lumabas ang driver, kinuha 'yung kanyang attach case.
Binuksan ang attach case and he rifled through his attach case trying to look for, looking for the
registration papers. In the process, eh nanunuod 'yung police nakita may dalawang sachet of
shabu sa loob. So, they confiscated this and effected, the shabu was confiscated and Abdul was
arrested. The Supreme Court said valid, valid. In plain view. They applied the plain view doctrine.
Now, in the case of, in Caballes vs. Court of Appeals, sabi ng Supreme Court of
course, it is possible, the item must be opened to the eye and recognized as such either because
transparent ang container or by the distinctive configuration of the wrapper. Kasi kung rifle for
example and then ang lalagyan talagang lalagyan ng rifle na ang form at configuration ay you
don't make a mistake, even if it is covered you know that it is a gun. So, you apply the plain view
doctrine even if the item is covered if it is clear, it is clearly identified. Clearly identified because of
the distinctive configuration or because the container is transparent. So, 'yon. That is what the
Supreme Court said when the plain view doctrine may be applied.
For your purposes I suggest that you memorize the 4 requisites laid down in People vs.
Musa because these have been repeated time and again by the Supreme Court in subsequent
decisions.
Search Under Emergency Circumstances
Then of course class, the 8th is People vs. De Gracia. Search made under exigent or
emergency circumstances may be valid even if made without a warrant. In the case of People vs.
De Gracia where, this happened at the height of the 1989 abortive coup d' etat. The military
government forces suspected that a car sales office in San Juan was being used as an armory for
the rebels. And so they raided the sales office and this motor car, motor car sales office and true
enough the raid yielded guns and ammunition. On the issue of whether or not this was a valid
search, the Supreme Court said yes. Supreme Court not only noted the urgency of the search
considering that there was fighting already between government forces and rebels, the Supreme
Cpourt also took judicial notice of the fact that San Juan, Quezon City and Pasig courts were
closed because of the fighting going on. Therefore the military would not have been able to obtain
a search warrant from any of these courts. Accordingly the Supreme Court said yes. Valid.

67

Class, I am perhaps the only one who adds a 9 th instance to this. When I add the case of
Guanzon vs. De Villa. Guanzon vs. De Villa was filed, the case was filed with the Supreme Court
because of the conduct of the so-called aerial target zoning or saturation drives conducted by the
military in slump areas in metropolitan, in the metropolitan places. Class this is what happens.
Slump areas, alam n'yo naman mga barong-barong. These are merely shanties, etc. At about 1
o'clock in the morning, several vehicles full of military men arrive and surround the area. Then,
armed men go down. Somebody with a bullhorn continues shouting. "Lahat ng lalaki! Lahat ng
lalaki d'yan!"
Privacy of Communications and Correspondence
Sabayin na natin 'yung exclusionary rule later. Section 3 on privacy of communications
and correspondence. Note that the right remains in violate except upon lawful order of the court
or on grounds of public safety and public order as prescribed by law. In connection with the
privacy of communications, look at Republic Act 4200 otherwise known as the Anti-Wire Tapping
Act. Remember Gaanan vs. Intermediate Appellate Court, which is authority for the principle
that a telephone extension does not violate the Anti-Wire Tapping Act. Recall that acts punished
under the Anti-Wire Tapping Act so that consent from all the parties must be obtained if one were
to record or to tape private conversation.
With respect to letters class, letters enjoy of course this guarantee but letters that are
already sent and received by the addressee now belongs to the addressee. In the case of
People vs. Albofera, nakakatuwa lang ang People vs. Albofera because in the course of criminal
trial, the accused heard the fiscal say that the only remaining witness who will be called at the
next hearing was Mr. so and so. There was a gap of about 1 month before the next scheduled
trial. During this period, the accused wrote a letter to the witness, asking him not to testify. Sabi
n'ya "Bakit ka naman tetestigo pa laban sa akin? Wala naman akong masamang ginawa sa 'yo."
Ganito. "Tayo naman ay magkaibigan." Ganyan. Okay. When the date of the trial arrived, the
fiscal, the prosecutor called the witness and he testified despite the letter. On top of that he also
testified that he received a letter from the accused asking him not to testify. The lawyer for the
accused objected to the introduction of the letter as evidence, precisely invoking the constitutional
guarantee of privacy of communications and correspondence. The Supreme Court admitted the
letter in evidence. Well, the Supreme Court said anyway, there is nothing incriminatory in the
letter. Nakikiusap lang naman na 'wag mag-testify. But you see, the letter already belongs to the
witness having received the same.
Exclusionary Rule
Alright. Then of course the exclusionary rule class. The most commonly used phrase is
"fruit of the poisoned tree" or the "fruit of the poisonous tree." And so, the poisonous tree is
the violation of Section 2 or Section 3. The items that may be seized or confiscated in violation of
Sections 2 or 3 are fruits of the poisoned tree, therefore they are inadmissible for any purpose in
any proceeding. Although Justice Cruz says they may be admitted as evidence in a case for
damages, for instance, filed against the peace officers who committed the violation of Section 2
or Section 3.
Freedom of Expression
For purposes of implementing or providing the details so that the resolutions calling for a
Constitutional Convention to be implemented, Congress passed Republic Act 6132. Republic Act
6132, among others provided for certain limitations on the size of propaganda materials, on the
material that will be used for propaganda as well as the places where the propaganda materials
may be posted.
Anacleto Badoy, Jr., a candidate for delegate at that time went to court to challenge the
constitutionality of the law. The Supreme Court upheld the validity of the law and considered
these restrictions on propaganda materials as a valid exercise of the police power, saying that
these restrictions were made in order to prevent the perversion and the prostitution of the
electoral process for delegates to the Constitutional Convention. I do not know exactly what that
means. Ah, prostitution of the electoral process. The next case that merits our attention was the
case of Sanidad vs. Commission on Elections in connection with the plebiscite conducted in
the Cordillera Autonomous Region or the Cordillera Administrative Region, rather, of the organic
law that was supposed to have established the Cordillera Autonomous Region. After the Muslim
Mindanao Autonomous Region was set up, this Congress passed another law for the Cordilleras
and this was subjected to a plebiscite, consistent with the Constitution. Two days, well, the
Commission on Elections issued a resolution to the effect that two days before the plebiscite, no
columnist in newspapers in Baguio, no TV or radio commentator would be allowed to make any

68

comments regarding the issues in the ongoing plebiscite. Pablito Sanidad, a lawyer and a
columnist in a Baguio newspaper went to court to challenge the constitutionality of the COMELEC
Resolution. The Supreme Court said the COMELEC Resolution is a violation of the freedom of
expression. The Supreme Court said that this is an undue suppression of the right to free
expression on the part of columnists and TV as well as radio commentators. On the issue raised
by the Commission on Elections that under the Constitution, the COMELEC is authorized to
regulate media of information and media of communications, the Supreme Court said that it is
true the Constitution allows or grants the Commission on Elections the power to regulate media
but not practitioners of the media.
After Sanidad, we have National Press Club vs. Commission on Elections. National
Press Club vs. Commission on Elections actually raised the issue of constitutionality of the
provisions of the Omnibus Election Code prohibiting newspapers from selling newspaper space
to be used as political propaganda by candidates. It also, the law also prohibited radio stations
and television stations from selling block time on radio, on television, to candidates for public
office. The Supreme Court upheld the constitutionality of the law and said that this was a valid
exercise of the police power. It was intended to equalize opportunities between rich and poor
candidates because ostensibly, the prices of block time on radio, TV, and newspaper space could
be accessed only by rich candidates for public office.
Following that, we have Adiong vs. Commission on Elections, again concerning a
COMELEC Resolution prohibiting the use of decals or stickers on public and privately owned
vehicles. The Supreme Court said the COMELEC Resolution is an undue restriction of freedom of
expression. The, there was no valid, no valid reason for the Commission on Elections to restrict
the use of decals or stickers of candidates particularly on privately owned vehicles. In fact the
Supreme Court said that this restriction on the use of privately owned vehicles on the use of
decals on privately owned vehicles was a violation of the due process clause. It was tantamount
to deprivation of property without due process of law. There is an amusing statement found in
Adiong vs. Commission on Elections where the Supreme Court said the Commission on Election
should not concern itself with things like decals or stickers of candidates. It should instead
concern itself with the more difficult problem and certainly more grave problem for Philippine
democracy in the proliferation of movie actors and actresses running for public office.
After that, we have Osmea vs. Commission on Elections. Osmea sought a review
or a reexamination of the ruling handed down by the Supreme Court in the National Press Club
vs. Commission on Elections. The Supreme Court dismissed the Osmea petition and said that
there was no valid reason to revise or to overrule this ruling in National Press Club.
Then we have Philippine Press Institute vs. Commission on Elections. In Philippine
Press Institute vs. Commission on Elections, Philippine Press Institute went to the Supreme Court
to challenge the constituionality daily newspapers to give for free to the Commission on
Elections one-half page of every daily issue of newspapers which will be used by the Commission
on Elections for the publication of COMELEC rules, announcements, regulations, etc. The
Supreme Court declared as unconstitutional the resolution of the Commission on Elections saying
that there was no urgent public necessity that required the Commission on Elections getting for
free one-half page. The Supreme Court said it is instead an exercise of the power of eminent
domain. And if COMELEC wants to demand or get one-half page of every issue of daily papers,
then the COMELEC should pay the newspapers for the space.
Following this was Telecommunications and Broadcast Attorneys of the Philippines
vs. Commission on Elections. In TELEBAP vs. Commission on Elections, the Supreme Court
was asked by the Telecommunications and Broadcast Attorneys to declare as unconstitutional the
provision of the Omnibus Election Code which allowed the Commission on Elections to demand
for free block time on radio and television. One of the issues raised was precisely the issue of
equal protection, because the COMELEC had just decided Philippine Press Institute where the
Supreme Court said that newspapers may not be compelled to give for free newspaper space to
the COMELEC. But yet here the COMELEC was demanding block time on radio and on
television. The Supreme Court dismissed the petition of the TELEBAP or the Telecommunications
and Broadcast Attorneys of the Philippines saying that the law is valid. The law is intended again
to protect or to ensure equal opportunities for those who seek public office. The Supreme Court
also said that the equal protection clause was not violated because there are substantial and
valid distinctions between the broadcast media and the print media. The Supreme Court pointed
out to the fact that radio reaches even the farthest barangays in the Philippines. Second, the
Supreme Court said that radio is more pervasive and therefore subject to greater regulation.
Third, the Supreme Court said that radio and television are franchisees. Radio stations and
television stations must obtain franchises which newspapers or newspaper publishers do not
need to acquire. Now, considering that franchises according to the Constitution will always be
subject to regulation, amendment, repeal, or modification by Congress, this law which became

69

part of the Omnibus Election Code is an act of Congress precisely in modifying, amending, or
repealing the law, the franchises, rather, of the television and radio stations.
After Telecommunications and Broadcast Attorneys of the Philippines, we have ABSCBN vs. Commission on Elections in the matter of the exit polls. The publication of exit polls.
Because the COMELEC again came out with a resolution prohibiting the publication of the results
of exit polls. Exit polls of course are conducted by pollsters, who discretely asked those who had
already cast their votes on the day of the election, those who already cast their votes on a
random sampling basis who they voted for. And then collates all these and then the pollster
comes out and publishes the results almost on the very day of the election or in the evening of
the day of the election. The Supreme Court said there is no valid basis to prohibit the publication
of these results of exit polls. In fact, it is through publication of the results that we strengthen the
right of suffrage of our people. Incidentally in the last elections, the SWS conducted an exit poll in
Metro Manila and they came out with the result that GMA would win in Metro Manila by no less
than 9% over FPJ. SWS must have committed a lot of errors in that survey because GMA lost in
all the places in Metro Manila, except in the City of Muntinlupa. No, no, not in Muntinlupa. In Las
Pias. She lost in Muntinlupa, she lost in Manila, Quezon City, Marikina, Pasay, Caloocan,
Valenzuela, lahat. Except Las Pias. And in Las Pias, she won only by a little over 1,000 votes
but ah..alright. That is credited to Senator Manuel Villar.
Anyway, the last which is, which is a very, very possible source of a Bar Examination
question is SWS Surveys vs. Commission on Elections. In SWS Surveys vs. Commission on
Elections, what was in issue was the provision in the law that surveys, results of surveys for
national candidates shall not be published within 15 days before the elections. And, poll surveys
for local candidates shall not be published within 7 days before the elections. Ostensibly in order
to prevent evils known as "junking", "dagdag-bawas", ah, ano pa ang mga evils that were sought
to be prevented the bandwagon effect? Because there are a lot of people who do not want to vote
for losing candidates. So pag nalabas na 'yung results na ito na nanalo, 'yun na, bandwagon
effect. Alright. The Supreme Court, the Supreme Court declared as unconstitutional this provision
of law prohibiting publication of results of surveys within even if, within a restrictive period of time.
O Brien Test
In a, well, the main opinion of the Supreme Court used the O'Brien test, which is an
American test. Under the O'Brien test, any government act that seeks to restrict or suppress
freedom of expression because that is what is being restricted here, the publication of the results
of the survey, in order to be valid must comply with 4 requisites. First, the Supreme Court said
the act must be within the constitutional power of government. Second, the act must be intended
to further a substantial governmental interest. Third, the governmental interest sought to be
promoted must not be related to suppression of freedom of expression. And fourth, the incidental
restriction or restraint on freedom of expression must be limited to what is only essential or what
is necessary to promote the governmental interest.
According to the Supreme Court, the law, the questioned provision of law, violated or did
not comply with number 4. Said that this provision of law, the challenged provision of law was in
effect prior restraint. Second, it suppressed a whole category of freedom of expression, mainly
the matter of publishing or taking a survey and publishing the same. While publication, sabi ng
Supreme Court, while publication of the results of the survey was prohibited, there was no equal
prohibition against radio, TV commentators, newspaper columnists, who were free to continue to
make their predictions, their comments for or against particular candidates. It was this whole
category of expression however that was prohibited even if only for 15 days or 7 days as in the
case of local candidates.
And finally, the Supreme Court said the governmental interest sought to be promoted
could be achieved in ways other than suppressing freedom of expression. Accordingly, the
majority of the members of the Supreme Court said unconstitutional. Justice Vicente Mendoza
wrote a separate concurring opinion and did not use the O'Brien test. But used instead the over
bred doctrine. In our first session last Monday, we spoke of the facial challenge in the matter of
judicial review. We said, only a person or a party who can show that the governmental act
challenged will endure him or will, he will be placed in imminent danger of injury from that
governmental act may go to court to question the constitutionality of the governmental act.
Challenge of Governmental Act
This is the general rule. We said, however, according to Justice Mendoza, there is such a
thing as a facial challenge when the law or the governmental act may be challenged as invalid on
its very face. Such that a person may go to court to question the constitutionality of the
governmental act even if he himself may not be injured by the governmental act, but that others
may be so injured. Even as to himself the act is not unconstitutional if it is unconstitutional with

70

respect to others because on its face, it is unconstitutional, then he may validly challenge the
same. The proper party requirement need not apply.
In that same decision is a, that same opinion in Cruz vs. DENR, Justice Mendoza
already made reference to the over bred doctrine and said that the facial challenge, however,
may be invoked only in cases where there is suppression or a violation o freedom of expression.
When does a governmental act or regulation then become invalid because it is so broad, over
bred, so broad, so encompassing, such that the governmental act goes too far and suppresses
both unprotected and protected freedoms. In this particular case, Justice Mendoza said, the
questioned ruling or rather the questioned provision of law thus indeed goes overboard. It goes
overboard. It is so encompassing, so extensive in its application insofar as one particular
category of expression is concerned. And, the prohibition goes too far as to suppress both
unprotected and even protected freedoms such as freedom of expression. And so it is
unconstitutional.
Justice Vitug, on the other hand, wrote a separate opinion ad simply used our police
power principles on the matter. He said the law is unconstitutional. It is an invalid exercise of the
police power because the means employed do not necessarily, are not reasonably necessary for
the accomplishment of the purpose. What was he saying? He was saying that prohibiting the
publication of the results of surveys will not necessarily cure "dagdag-bawas", will not necessarily
cure "junking", will not necessarily cure the matter of bandwagon mentality or bandwagon effect.
That is supposed to be generated by the publication of the results of surveys. So that's it.
Movie Censorship
Now, with respect to movies, Philippine jurisprudence have always said that movies, as a
form of expression, are subjected to greater regulation. Today, of course, with television,
television and movies have to be put together. They indeed are very pervasive means of
communication that so many are affected by movies and television. And so they are subjected to
greater regulation. However class, well, 'yung una, una 'yung Lagunsad vs. Sotto vda. de
Gonzales on the Moises Padilla Story. When the family of Moises Padilla went to court asking
that the movie Moises Padilla Story be withdrawn from public exhibition because the story was
not faithful to the life of Moises Padilla. You see, the actor who played Moises Padilla in that
original Moises Padilla Story was Leopoldo Salcedo. Leopoldo Salcedo during his time was
considered the great profile. He was also known privately as a playboy. With Leopoldo Salcedo
as bida, the producers, maybe the director and the scriptwriter had to inject certain things para
naman meron ding konting romantic episodes doon tungkol kay Moises Padilla. Eh, patay na si
Moises Padilla. 'Yung asawa buhay pa. Ay galit at hindi raw totoo 'yon. Alright. Ewan ko kung ano
pero. Anyway, anyway the court did allow this and the moviemakers had to make the necessary
corrections in the movie. Then of course you have Speedy Gonzales (Jose Gonzales) vs.
Maria Kalaw Katigbak on the movie "Bayan Ko, Kapit sa Patalim." "Bayan Ko, Kapit sa Patalim"
starred Philip Salvador before of course, you know, before all of these things..'yan..like ano.. And
then, 'yung naano ni Philip Salvador pagkatapos nagpunta kay ano. And then ah..tapos
eh..napunta.. Tapus-tapusan napunta kay Mark Lapid ngayon balik na naman kay So. Kayo
hindi n'yo alam ang mga tsismis kase. Alright. So, eh meron pa noong mga Alvin Patrimonio,
meron pang ano, so. Alright. Ah, ok. The challenge was to contest the rating given to the movie.
Because the rating given to the movie was "For Adults Only." For adults only. Because of violent
scenes in the movie. The Supreme Court did not find the Board as guilty of grave abuse of
discretion in classifying the movie as "For Adults Only."
Then of course class, Ayer Productions vs. Judge Capulong on the movie "A
Dangerous Life" which was being filmed in the Philippines by an Australian moviemaking
company. The movie, although the story was supposed to be a love story, was, the love story was
made to unfold in the context of the EDSA Revolution. EDSA 1. And so, we had characters in the
movie like Ferdinand Marcos, Imelda Romuladez Marcos, Cory Aquino, Cardinal Sin, Juan Ponce
Enrile, etc. While the movie was being filmed, Juan Ponce Enrile learned about this of course and
went to court to stop the filming of the movie. And to stop any possible public exhibition of the
movie because his consent was not at all obtained and that using him in the movie as it were
using his name in the movie was an undue invasion into his right to privacy. The RTC of Makati
granted a writ of permanent injunction, writ to, and stop the moviemaking company from
proceeding or finishing the movie. Ah, of course the moviemaking company went ahead, went on
appeal. The moviemaking company had to finish its movie. They went to Sri Lanka instead to
finish the movie. You don't remember this of course you won't..if you should ever see the movie,
watch the last portions of the movie when what was supposed to have been depicted was EDSA
at mga maraming tao, hand in hand, even facing tanks. The camera had to, had to go to take the,
the what, the scene from far, from far away because if the camera were focused closely it would
be very clear that these were no longer Filipinos but Sri Lankans who were used in the movie.
Oo, Sri Lankans, they were of course darker than Filipinos but they have that, mas matangos ang

71

mga ilong nila kaysa Filipinos. Anyway, when the Supreme Court eventually decided the case, the
Supreme Court said that between the right to free expression of the moviemaking company and
the right to privacy of Juan Ponce Enrile, the right to free expression prevails. The Supreme Court
said that the right to privacy of Juan Ponce Enrile, considering that he was a public figure, had
really become narrower than that of a private individual. And therefore, with even greater reason
would the right to free expression prevail over his right to privacy. You know class, I saw that
movie. I saw that movie, starred Dina Bonnevie and ah, an Australian actor. And then ah, ang
akin lang natutuwaan don ay dahil si, I think it was Rolando Tinio who played ah, played Cardinal
Sin. Tinio is a very thin man. And there so, we heard rumors even then. The reason why Juan
Ponce Enrile went to court was that he did not like the actor playing him in the movie. Gusto n'ya
noon si Gabby Concepcion . Kaya ayaw n'ya. Eh, wala eh. Kung ganon pala naman eh, hindi si
Gabby Concepcion, 'wag na lang. Kailangang itigil na itong Alright.
Class, but what was, what was ah, asked in the Bar Exams already was the case Iglesia
ni Cristo vs. Court of Appeals. In Iglesia ni Cristo vs. Court of Appeals, the Movie and
Television Review and Classification Board classified the Iglesia ni Cristo program on television
as "X-rated". X. Alam n'yo ang "X-rated", pag "X-rated", you ah, the movie or the program will not
be allowed for public exhibition. It will be exhibited in private viewing places ganyan pag X-rated.
Normally, the X rating is given to sex movies. Meron pang double X n'yan. May triple X. Pag triple
X, mainit na mainit na. Umuusok na 'yan. But imagine, imagine the TV program, the TV program
of Iglesia ni Cristo being considered X-rated. Iglesia ni Cristo had to go all the way up to the
Supreme Court to contest this. The Supreme Court of course, said the MTRCB committed grave
abuse of discretion amounting to lack or excess of jurisdiction, when it gave an X rating to the TV
program. The Supreme Court said that, well, the reason, the reason why the X rating was given
was supposed to be because those appearing on the program attack other, the other religions.
Maraming nag-complain na bakit panay na lang ang bira sa ibang religion nitong programang ito.
Alright. So talagang ang issue dito, if this should ever be asked again, dalawa ang issue. First,
from the standpoint of freedom of expression. From the standpoint of the freedom of expression,
the Supreme Court said that the only reason for the grant of an X rating to the program would be
if the continued exhibition of the program, public exhibition of the program will create a clear and
present danger of an evil which the State has the right to prevent. And there was no showing that
there was such an evil created by the continued exhibition of the program. From the standpoint of
religion. The Supreme Court spoke of, which should really be in religion and freedom of religion,
the right to proselytize.
In, first, in American Bible Society vs. City Treasurer of Manila, this right to proselytize
was recognized as an inherent aspect of freedom of religious profession and worship. The
Supreme Court said the right to proselytize is the right of a person who belongs to one religion to
try to convince others to embrace his religion. To try to convert, conversion ng ibang tao. Ito. That
is the right to proselytize. Now, this is inherent in the right to religious profession and worship.
And, the Supreme Court said if the Iglesia ni Cristo thinks that the best way to convert people to
join Iglesia is by attacking other religions then this is part of the guarantee. This is part of the
guarantee of religious freedom, freedom of religious profession and worship.
Then of course class, the case of Viva Productions vs. Court of Appeals and Freddie
Webb. When Viva Productions produced and eventually exhibited the movie "The Jessica Alfaro
Story," and of course, two courts in Metro Manila issued injuctions, writs of injuctions prohibiting
the public exhibition of the movie, on petition of Hubert Webb. The Viva Productions went all the
way up to the Supreme Court and Supreme Court said the order of injunction issued by the courts
were not valid. Again, the Supreme Court said the only justification for such an injunction would
be if it is shown that the exhibition of the movie will create a clear and present danger of an evil,
which the State has the right to prevent. Alright. Then class, the next aspect. We have only
touched on the first aspect of freedom of expression which is freedom from censorship or
freedom from prior restraint.
Freedom from Subsequent Punishment
The other aspect is freedom from subsequent punishment. Because indeed, the freedom
from censorship would be useless if granted the freedom to speak he would later on be punished
for what he says. And so, the two go together. Freedom from subsequent punishment. As a rule,
therefore, you cannot be punished for whatever you say. Nonetheless again from your mastery of
Criminal Law, you know that libel, slander, oral defamation are punished. Obscenity is also
punished. Inciting to sedition is likewise punished. And there have been no valid constitutional
challenge against the constitutionality of these criminal laws punishing these offenses.
On the matter of obscenity, however, class, I would like to call your attention to Pita vs.
Court of Appeals. Pita is really very well written. The ponente was Justice Abraham Sarmiento. It
was very well written but I, I don't know if, ah, I was hoping that this would be asked in the Bar

72

Exams early on but it never was. You see, what happened here was Ramon Bagatsing embarked
on a campaign, an Anti-Smut Campaign in Manila. He created a task force to go around the City
of Manila and confiscate pornographic or obscene publications especially those that were being
sold in, to the public, along sidewalks, along sidewalk kiosks. So, the task force went around
mainly Claro M. Recto, Rizal Avenue, Quezon Boulevard and started confiscating what the task
force believed were pornographic publications. Among the publications confiscated were copies
of Pinoy Playboy. Pinoy Playboy is published by Pita, the petitioner in this case and it is an
attempt on the part of a Filipino publisher to approximate the magazine Playboy Magazine in
America. There is also a centerfold. You know the centerfold? This 4-page thing at the very center
of the magazine? 'Yun ang una mong titingnan pag bukas mo ng magazine sa gitna ka kaagad.
And then you open the centerfold because there is a picture, a colored picture of a nude woman
there. So, Pita went all the way up to the Supreme Court. Unfortunately for him, the Court never
gave him a restraining order to restrain Bagatsing from burning all of these magazines and
publications that had been confiscated. So now, nasunog din 'yung nakuha na Pinoy Playboy
copies. But the Supreme Court eventually said the determination of what is obscene or what is
pornographic is a judicial function. And so, it is not valid to say that, that ah, magazines said to be
pornographic can be confiscated at will.
The Supreme Court said there must first be a criminal case filed in court against whoever
is selling or publishing these allegedly pornographic materials. Second, a warrant of arrest must
be applied for at which the judge must determine the existence of probable cause. When the
judge issues a warrant of arrest, it is only then that these so-called pornographic materials may
be confiscated. After they are confiscated, they have to be brought back to court. They have to be
brought to court because the judge wants to look at them also. You know, the judge. Si judge,
mahilig din ang judge dito sa mga ganito. You see, they have to be brought to court because they
will be evidence in the pending criminal case against the accused. And so the determination of
whether or not the magazines are, the magazines or materials are pornographic will rest upon the
judge. If the judge says that these are pornographic, then the accused will be convicted. If the
judge says not pornographic, then the accused will be convicted and the materials will be
returned to the accused. This is the procedure outlined by the Supreme Court in the case of Pita
vs. Court of Appeals.
Criticisms Against Official Conduct
Nakakatuwa lang dahil the Supreme Court has been consistent also that in the matter of
criticisms against official conduct, we have that old, old case of US vs. Bustos, where the
Supreme Court said that criticism is like a scalpel. It relieves the abscesses of officialdom. And
so, the Supreme Court in effect said the citizen should be given the widest latitude to criticize
public officials. Widest latitude. And so even cases, cases of libel against public officials rarely
prosper, rarely prosper. I think this libel case against the bishop, on the other hand, filed by ladies
who were called GRO's and so on. The Supreme Court has been very, very lenient on cases of
criticism against public official, public officials. Except if the criticism is against the Court. Because
when a criticism is against the Court then the Court is quick to take up the codjels of ah, lahat na
lang pag mag-criticize ka ng court, you are already what, intervening in ano, interfering in the ano,
obstructing the dispensation of justice and so on. Doon lang sa ano Nestle Philippines vs.
Sanchez. Labor case ito. From the NLRC the case was brought up to the Supreme Court. Eh
involved ang isang party dito sa kaso na ito 'yung labor union ng Nestle Philippines. Kaya
nagtayo na sila doon ng tent sa Padre Faura. Yung ano, laging merong mga union members
there. And in the morning when the Justices arrived in the Supreme Court, they would be met by
the ano, with placards. Oo, oo. Decide the case of Nestle, ganyan. When they come out of the
Supreme Court also they would be met by these laborers and members of the labor union. So the
Supreme Court called the lawyer of the labor union. Sinabi, "Oy paalisin mo 'yung mga tao mo
d'yan. If not, ikaw ang aming ico-contempt dito." Ay pinaalis. And we have a lot of cases of course
starting from that old, old case involving Senator Sotto.
The great grandfather of all the, of ah, the Senator Sotto we have, we just have, who
delivered a stinging rebuke of the Supreme Court on the floors of Congress, on the floors of
Senate. And ah, the Supreme Court could not let him go. Talagang binanatan pa rin. Ganon lang
talaga. So the Supreme Court is lenient when you criticize others but when you criticize the Court,
the Supreme Court is onion skinned. And ah, ganon lang 'yan. Alright.
Tests for Valid Governmental Intervention
So class, after that we have the tests for valid governmental intervention. Three tests
have so far been used by the Supreme Court to justify the intervention by government in the
exercise of free expression. These are the clear and present danger rule, the dangerous
tendency rule, and the balancing of interest test.

73

Clear and Present Danger Rule

Under the clear and present danger rule, the expression must be of such a nature that it
will pose a clear and present danger of an evil, which the State has the right to prevent. The
degree of imminence must be great. In that, when the expression is made, then almost inevitably,
this, the evil sought to be prevented will arise. That will justify governmental intervention either in
the matter of restraint or in the matter of imposing penalties for the expression used. The
dangerous tendency rule is less, less strict in the sense that you take the words or the expression
itself. You do not consider other circumstances of time or urgency, or immediacy. You take only
the expression used as long as the expression has a dangerous tendency to create the evil that
the State has the right to prevent. Then government is already justified in interfering with freedom
of expression.
In that old, old case, the only recorded I think, the only recorded case where the Supreme
Court used the dangerous tendency rule, we have this took place during the American occupation
pa. The governor-general was Leonard Wood. Somewhere in the province, somebody was so
disappointed with the manner in which the governor-general was running the government. And so
he said "Ang mabuti nito, ang mga Pilipino kumuha ng bolo at putulin na ang leeg ni..pugutan na
ulo 'yang si Leonard Wood." He was convicted of inciting to sedition. Even if he spoke these
words while he was in the province far away from the Malacaang Leonard Wood held office, and
there was absolutely no way that people would really go to Leonard Wood, get their bolos and
then cut off the head of Leonard Wood. Wala, hindi mangyayari. And yet the words were taken
not in the context of the actual situation under which the words were uttered, but the words
themselves were taken as they were and found to have a dangerous tendency to create the evil
that the State has the right to prevent. The State has the right to prevent sedition. And so inciting
to sedition was filed against the fellow who made the speech.
When I was teaching, when I was handling on the graduate years, what I always gave by
way of an example to distinguish the clear and present danger rule from the dangerous tendency
rule was an example such as this. In an auditorium filled ah, with 10,000 in the audience, a
speaker starts attacking government. And then, so waxed emotional and passionate towards the
end, sinasabing, sinabing "'Yang putang inang nasa Malacaang na 'yan wala nang ginawa kundi
pabayaan ang taong Pilipino. Kamukha ni dela Cruz, pupugutan na sa Iraq. Putang ina wala pa
ring ginagawa." Pagkatapos ganyan. Example lang ito ha. Hindi ito Hindi pa man din nga tunay
na Presidente dahil bogus na Presidente ayon kay ano, at ganyan, ganyan. And then towards the
end, the speaker says "kaya tayong lahat na narito, magsi-uwi tayo. Kumuha tayo ng ating..let us
get our weapons and let us march to Malacaang. And oust that resident in Malacaang."
Charged with inciting to sedition. Under the dangerous tendency rule definitely the speaker can
be convicted. Under the clear and present danger rule, you have to look at the circumstances
surrounding the speech. 10,000 in the audience. All of them children, 6 years old and below.
July 12, 2004
The last time we met we finished with the test for valid governmental intervention in the
ahexercise in the freedom of expression. We spoke of the 3 tests, the Clear and Present Rule,
the Dangerous Tendency Rule, and the Balancing of Interest Test. Ah, of late class, the Courts
have been applying mainly the Clear and Present Danger Rule although every now and then the
Courts use the Balancing of Interest Tests.
Right to Peaceable Assembly
Alright, from freedom of expression we move on to the right to peaceably assemble and
petition the government for redress of grievances, first it must be noted that the right to assemble
and petition the government for redress of grievances does not require a permit, no requirement
for a permit, a permit is only required only when the assembly is to be held in a public place and
so you haveRepublicahBatas Pambansa 880, which is the Public Assembly Act.
Under the Public Assembly Act, there are rules relative to the acquisition of a permit for
the use of a public place in order to conduct an assembly and the law provides that when the
assembly is to be held in a private place or if it is to be held in a freedom park or in the campus of
a government owned educational institution, then there is no need for a permit from the Mayor
otherwise a permit is required .The Public Assembly Act, however, also provides that wherea
a group desires to hold a public assembly, the application for a permit should be made at least 5
days prior to the scheduled assembly and the mayor is supposed to act within 2 days, failure to
communicate whatever the decision of the mayor may have made after 2 days, then the
presumption is that the permit has been granted, from the Mayors decision, the mayors decision
should be communicated within 24-hours from the time it is made to allow the applicants an

74

opportunity to go to Court and the law speaks of a 24-hour period within which the Court is
supposed to decide the case once elevated to the Court. So, there isthesethe law is
supposed to cover the ahto cover or to provide the rules for a public assembly.
Now class, conceptually, in the matter of hierarchy of rights, I think you should look at
Philippine Blooming Mills, the Philippine Blooming Mills a case where the Supreme Court said
that the right to assemble and petition the government for redress of grievances prevails over
economic rights, recall in that connection that the labor union wanted to protest alleged abuses of
Pasig policemen and they decided to march to Malacanang and hold a public rally in front of
Malacanang precisely to denounce these alleged abuses, when the leaders of the union sought
permission from the management of Philippine Blooming Mills, the management agreed on the
condition that those employees and workers assigned that particular shift should not attend or
participate in the assembly because in a steel mill there is need to maintain a certain temperature
in the furnace and theonce this temperature it may take days before the required temperature
is reached, and so the union agreed but when the day arrived, even those were supposed to
assign to be assigned duties on that particular shift, joined the march, the management
terminated them for violate.for going ah...for going out of their assigned tasks. In an action
precisely for ah reinstatement of these employees, the Supreme Court said that these people
should not have been terminated because even assuming that the management of Philippine
Blooming Mills did in fact incur losses, nonetheless, economic rights must be subordinate to the
right to peaceably assemble and petition the government for redress of grievances.
Note however the cases involving the public school teachers in the City of Manila who
went on strike, we have a lot of cases here, we have Bangalisan vs. Court of Appeals, de la
Cruz, Jacinto. Public school teachers left the classrooms and staged the demonstration before
the Department of Education offices situated then at the Palasyo del Gobernador in Intramuros,
Secretary Isidro Carino ordered that these be terminated, be dismissed from the service, a
number of them went to Court some of them even staged a hunger strike right at the foot of the
National Press Club Building at the foot of Jones Bridge. On the contention, on the contention
that these teachers were merely exercising their constitutional rights to peaceable assemble and
petition the government for redress of grievances and that therefore they should not be penalized
by dismissal form the service. The Supreme Court they were not being penalized by exercising
their right, they were being penalized for being absent from their classes without any justifiable
reason.
And in the case of De la Cruz vs. Court of Appeals, the Supreme said the right of the
children to education is at least equal to if not superior to their right to peaceably assemble and
petition the government for redress of grievances. Now when you apply the right to assemble and
petition to students in schools, Non vs. Dames reiterates the old doctrine laid down in Guzman
vs. National University that the students does not leave their constitutional rights at the gates of
the educational institution when they enter the school and so look at Malabanan vs. Ramento,
where the Supreme said that even if the students who held a rally inside the campus of Gregorio
Araneta ah University, even if they violated the condition imposed upon them by the school
authorities, nonetheless, they should not be meted the penalty of non readmission, what
happened here was, students wanted to hold their rally inside the campus of Gregorio Araneta
Foundation, theythe authorities said yes provided that use only the quadrangle and they do not
disturb on-going classes, and so the students staged their rally but their were very few students
who attended and so in an impassioned speech by one of the leaders he said we should march
to all the classrooms in the school to invite the students to join the rally, and that is what they did,
and when they went to the classrooms of course the students inside the classroom were only too
willing to join the rally because that would mean no classes, ah, after that when the semester
ended and the leaders sought to re-enroll the school refused to re-admit them. This case went to
Court and the Supreme Court said, they should not be denied re-enrollment.
In the case of Villar vs. Technological Institute of the Philippines, even as, what was
raised by the school as the reason for no re-admission was academic deficiency on the part of
the leaderson the part of the leaders of the rally, the leaders were able to show that even as
they fail in 3 subjects, the school has actually re-admitted some students who fail in 3 or even
some students who failed in 4 subjects. Accordingly, the Supreme Court ruled in favor of the
students and allowed for re-enrollment. Today class, remember of course that case of Alcuaz vs.
Philippine School of Business Administration is no longer applicable, the rule in Alcuaz was
that when a student enrolls in school, the enrollment is on a semester to semester basis, a
contract that is on semester to semester basis, if the enrollment in fact is on a semester-tosemester basis and that this is in the nature of a contract, ah, then it is within the right of the
school not to allow students at...after the end of one semester. Class, this has been abandoned in
Non vs. Dames, today the rule is, when a student enrolls in college he is suppose to enroll for the
entire course subject of course to the payment of the school fees for the entire course, that
means he cannot be denied re-admission except on 2 grounds, first academic deficiency,

75

academic deficiency, the rules in academic deficiency however must be published in other words
the students must be notified of the rules on academic deficiency that is why in a lot of laws
schools now, they apply the QPI System such that when a student fails to getto obtain the
minimum weighted general average for ah a particular school year then the school may deny reenrollment, ok. The second for denying re-admission to the students is if the students commits,
the student commits ah violation of reasonable rules of conduct prescribed by the school, alright.
Reasonable conduct prescribed by the school wala ay eto naok reasonable rules of conduct
prescribed by the educational institution provided however that again the rules must be published
that means that the students must be given notice that these are the rules and the penalties for
violation the rules which will include of course the penalty of non re-admission. However, when a
student is not to be re-admitted because he has committed allegedly a violation of ah reasonable
rules of conduct prescribed by the school the student is entitled the minimum requisites of due
process and there are 5 requisites of due process in administrative investigations relative to a
student who is alleged to have violated, who is alleged to have violated the rules.
What are these requisites, first, he must be notified of the nature and cause of his alleged
violation; second, he is entitled , he is entitled to answer with the assistance of counsel if
required; third, he must be given access to the evidence against him, access to the documents or
to the affidavits that are supposed to be evidence against him; third, ah fourth he must be given
an opportunity to present evidence in his behalf; and fifth, the investigator, panel, committee
should consider the evidence presented, these then are the requisites for the validity.for the
validity of administrative investigations relative to students who are deemed to have violated or
who are charged with having violated reasonable rules of conduct in education institutions. These
are rules laid down as early as Guzman vs, National University and reiterated in the case of
Ateneo de Manila University vs. Judge Capulong.
Tests for the Validity of Government Intervention
Alright, so class, in the past there were 2 tests, there were 2 tests which were used by
the Courts early on in determining the validity of governmental intervention in the exercise right to
peaceably assemble and petition the government for redress of grievances, these 2 tests were
the Purpose Test and the Auspices Test.
Purpose Test
Under the purpose test it was justified for the mayor to refuse to issue a permit for a
public assembly if the purpose of the assembly is unlawful, but I find that silly class, I find it silly
because if you were to apply for a permit and included in your application of course would be the
purpose of the assembly you do not place there the purpose is to create disorder to break
windows, doors, etc or to create damage, you do not, noh.
Auspices Test
The second test is the auspices test, under the auspices test the mayor is justified in
refusing to issue a permit for a public assembly if the assembly is sponsored by or under the
auspices of anof an organization that is known to be trouble makers, these 2 tests were used in
the past, a long time ago, today in light if JBL Reyes vs. Bagatsing, the Supreme Court has
consistently ruled that the only ground when the mayor may refuse to issue permit for a public
assembly is the Clear and Present Danger Rule, the only real test, and so the mayor can refuse
to issue a permit only if it is shown that the conduct of the assembly will create a clear and
present danger of an evil which the State has the right to prevent, ok.
Freedom of Religion
That takes care of section 4, we move on to section 5, section 5 contains 2 guarantees
first the guarantee against the establishment of a religion and second the freedom of religious
profession and worship. The guarantee against the establishment against a religion is really
supportive of the basic fundamental principle found in Section 6 of Article II on the separation of
the Church and the State, when we took up Section 6, we made reference to a number of
Constitutional provisions we said ah the constitutional provisions in Article VI, first the matter of no
sectoral representative shall sit in the House of Representatives representing the religious sector
and second the prohibition against the use of public money or property for the benefit of any
religion or for the benefit of any priest, rabbi, minister, ecclesiastic, and third, the prohibition
against registration of any religious group or denomination, religious sector, denomination as a
political party.
Now with respect to the use of public money or property recall old decisions, Aglipay vs.
Ruiz,on the printing of stamps, printing of stamps commemorating the Eucharistic Congress to be

76

held in Manila. The Supreme Court said there was no violation, the government, or the public
money used in the printing of the stamps can be recover form the sale of the stamps, besides it
was really intended to promote Manila as a tourist destination considering that Manila was the
sight of the Eucharistic Congress.
The case of Garces vs, Estenzo, where official of a Barangay went around soliciting
money so that they could buy a statue of their patron saint, the Supreme Court said there was no
violation of this prohibition against the use of public money or property for the benefit of any
religion because after all the money did not come from government, alright. Then look at the
exceptions, in so far as the prohibition against the use of public money or property for the benefit
of priest, rabbi, minister or ecclesiastic, the constitution itself allows payment of government
money to such ecclesiastics when they are employed in the armed Forces of the Philippines of a
penal institution or in a government owned orphanage or leprosarium. Second from your mastery
on the rule of the law on taxation, you find in the Constitution a basic exempting clause and the
when the constitution speaks of churches, parsonages, convents and all property actually, directly
and exclusively used for religious purposes being exempt from taxation, likewise in Article XIV,
even as the constitution provides that educational institutions should be owned by Filipino citizens
or by a corporation at 60% of the capital stock of which is Filipino owned, the constitution itself
allows the establishment of any educational institution in the Philippines which is established by
religious groups or mission boards.
And again Article XIV provides or allows the use of public property, public elementary and
high school classrooms to be used for optional religious instructions under the conditions found in
the constitution itself which requires among others an option to be made by the parent or
guardian of the child, the pupil or the student. Optional religious instruction should be conducted
only during regular class hours by theinstructors or teachers designated by the Gospel or the
religion to which the child belongs. And finally, other than the use of Public elementary and high
school classrooms, no further cost to the government shall be incurred.
Non-Establishment Clause
Class, by the nonnon-establishment clause we mean that the State shall not create a
religion, it shall not favor one religion, it shall not discriminate against any religion, it cannot even
favor all religions because if the Sate favors all religions then it would discriminate against those
who have no religion, and so if you would look at American jurisprudence even the school prayer
case where the board of education, whenyou see in America, they have boards, local boards of
education for their public schools, the matter of education is not actually operated or administered
by the National Government, matter of education is operated or administered byby the states
themselves not by the National government, and so where a prayer was designed and required to
be saidto be made at the beginning at the of class hours the US Supreme Court said that this
was ion violation of the non-establishment clause. In fact a few years ago, I read in...in an
American magazine that the US Supreme Court declared that the use of athe.the ah
construction of a Belen in the City Hall was held to be a violation of the non-establishment clause
although in the same article I saw that where what was placed in the City Hall was Santa Clause,
there was no violation, apparently Santa Clause is not a real Santa ano, so, ok,. Alright, consider
also decisions in the Philippines including for example the decision of the Supreme Court that in
recognition of the Muslim ah religion, Muslims are allowed to marry as many as 4 times noh, I
dont know if that is good or bad in many cases I am sure ah the gentlemen here who are married
will say that one is more than enough noh, but theahthats it. I recall, I recall a story, after the
1986 revolution, in EDSA Revolution that was the time when Nur Misuari becamecame back to
the Philippines and became a a public figure so to speak, he was interviewed by aa very
makulit na na interviewer on television, tinanong siya is it true Mr. Misuari that Muslims are
allowed to have 4 wives? yes sabi ni Misuari, yes, yes of course but it is not compulsory, you
know, and besides there are obligations that a Muslim must fulfill if he has more than one wife,
but supoose Mr, Misuari, suppose a Muslim will have 5?, oh, my friend that will not happen, that
will not happen, no just suppose hell have 5, no I tell you that will not happen, no but just
suppose Mr. Misuari, suppose a Muslim has 5, naiinis na si Misuari sabi niya my friend you are
not talking about a Muslim, you are talking about a Catholic priest. When I was, well, when I was
with the Department of Education and later even in Congress, ah some of my very good friends
were Muslims, I recall when I was with the Department of Education, II had aI came across
and talked to one very very well educated and certainly very cultured Muslim and when we got to
talking about this about the non-establishment clause and the need to integrate the Muslim
culture into the mainstream of Philippine society because of the conflicts that normally arose, he
said, you see my friend, the trouble sometimes is that most of those who are not Muslims,
(referring to Christians) are not sensitive to our culture, for example, sabi niya only 2 nights ago
I was invited to a dinner, it was a sit down dinner but my host was not even sensitive to my
religion I was placed, I was made to sit right in front of where the lechon was, and of course you
know that we do not eat pork on top of that I was made to sit beside a boar, somebody who did

77

not at all understand, imagine as he took the yung the skin peeled the skin ano and continued to
eat beside me he kept on asking bakit kayo ayaw kayong kumain ng baboy ansarap, to put him in
his place I said sabi nya I told this fellow, you know many many years ago, God called our
forefathers and God told our forefathers, what would you rather have, would you rather eat pork
or would you rather have 4 wives, and our forefathers chose the better option. Tumahimik daw
yung katabi nya mukhang hindi pa nakakaapat yung katabi nya.
Alright, and class, of course recall when we were discussing equal protection of the laws,
we talked about People vs. Cayat and Rubi vs. Provincial Board of Mindoro where there was
reference in the very law prohibiting in Cayat, prohibiting ah the sale to members of non-Christian
tribes imported liquor and then in Rubi prohibiting their taking up residence outside a reservation.
The Supreme Court in thatin those cases 2 cases was very careful to explain that the phrase
non-Christian tribe did not have any religious implications and that the use of the word nonChristian was for the purposes of denominating lack of well lower ah...lower civilization in fact,
rather than religion. alright, I know there are Muslims here, I, I would like to ask what is Halal,
what is halal food? What is halal food? In the case of, there is a 2004 no 2003 decision in the
case of Islamic Dawa Council, Islamic Dawa Council vs. Office of the executive Secretary on
the constitutionality of Executive Order No. 46 creating the office of Muslim Affairs because
among the powers allegedly granted, well granted to the Office of Muslim Affairs was to determine
even what Halal food is and what is not Halal food and the Supreme precisely said that this
interference by government in freedom of religion, this was in fact a violation of the nonestablishment clause when a government agency is created and vested with that power which is
purely religious or an ecclesiastical matter
Of course, we have the case of Austria, Austria vs. NLRC on a Minister of the Seventh
Day Adventist who had who was ah relieved as minister because ostensively of malversation or
misappropriation of funds belonging to the Seventh Day Adventist, he went to the NLRC and
demanded that he be reinstated because he said because this was a case of illegal dismissal.
When the case was elevated to the Supreme Court the Supreme Court said this is not an
ecclesiastical affair and so when the constitution says that no law shall be made respecting the
establishment of religion then the State will not interfere in what is purely a religious or an
ecclesiastical affair but in this particular affair, the Supreme Court said this involved employeremployee relationship and not a purely ecclesiastical affair and so the NLRC has deemed to have
jurisdiction over the case. NLRC initially of course refused and so the fellow went all the way up
to the Supreme Court, the Supreme Court said that an ecclesiastical affair is that which pertains
to creed, doctrine, worship, such as excommunication of members, ordination of ministers,
administration of the sacraments. The Supreme Court noted that the conflict in this case had to
do purely withnot purelymainly with employer-employee relationship and so the Supreme
Court said, this is not a purely ecclesiastical affair and therefore the NLRC has jurisdiction. Of
course you are aware of the Revised Penal Code provisions punishing those who would interfere
with religious worship and so that is how the State is suppose to respect religion, alright. So in so
far as, in so far as the non-establishment clause is concerned we have those old cases involving
well Aglipay vs. Ruiz, Garces vs. Estenzo and then the more recent Austria vs, NLRC and the
very recent Islamic Dawa Council of the Philippines vs. The Office of the Executive
Secretary on the establishment of the Office of Muslim Affairs and vesting in this Office of Muslim
Affairs precisely the authority even to select or to determine what is Halal food and what is not
halal food.
Freedom of Religious Worship and Profession
Alright, the other guarantee contained in Section 5 is the freedom of religious profession
and worship, alright, the freedom of religious profession and worship has to 2 aspects, first the
freedom to believe and the second is the freedom to act in accordance with ones beliefs. The
freedom to believe is absolute for as long as what you believe in remains in the realm of belief in
the realm of the mind then of course that is absolute.
In this connection perhaps, you can relate this freedom to believe which is absolute to the
first paragraph of section 18, section 18 of, section 18 of Article III which prohibits imprisonment
or liability for purely political belief for as long as the belief remains in the realm of belief. Ok, in
the case of the aspect of freedom of religion which goes with the freedom to act according to
ones beliefs then this is subject to government regulation but again class, governmental
interference in the exercise of freedom of religious profession and worship can be justified only if
the continued profession or worship, the action in the matter of professing and worshipping ones
religion will raise or create a clear and present danger of an evil which the State has the right to
prevent.
As early as Herman vs. Barangan, although in Herman vs. Barangan ah the majority of
the members of the Supreme Court actually found Herman and his ATOM group as not sincere in

78

their profession of religious beliefs, Marcos pa ito Marcos, this was after ah, after Ninoy Aquino
had already been killed, and so Rely Herman had organized the ATOM the August Twenty-one
Movement, they gathered here one Thursday afternoon, here in Mendiola all of them clad in
yellow, they marched towards Malacanang shouting ah, epithets against Marcos Marcos, mga
ganyanwhen they reached that portion near the gate of Holy Spirit there was of course a
barricade there and you had presidential security people there, military and so they were stopped
they were not allowed to proceed and then they said, Aba, magsisimba lang kami sa St.Jude
bakit nyo kami pinipigil, you are interfering with our freedom of religion. Hindi naniwala ang mga
military, ayaw silang payagang pumasok and so Rely Hermano went to Court the majority of the
members of the Supreme Court of course voted to dismiss the Rely Herman petition and said that
clearly Herman and the other petitioners were not sincere in their profession of religious belief,
ginawa lang excuse ang pagpunta sa St. Jude. But in his dissenting opinion Justice Teehankee,
said the only reason , the only valid reason for government to interfere in the exercise in the
freedom of religious profession and worship is when the State, when there is a showing that
these profession of religious beliefs will create a clear and present danger of an evil that the State
has the right to prevent, that dissenting opinion of Justice Teehankee is now the rule, it is now the
rule.
Alright, among the decisions that ii would like to call your attention to would be Ebralinag
vs. Division Superintendent of Schools of Cebu, Ebralinag of course, has aa overturned an
old old doctrine laid down earlier in Balbuna vs. Secretary of Education and in Gerona vs.
Secretary of Education, prior to Ebralinag, the doctrine was that the flag was not a religious
symbol, the National anthem is not also ah tinge with any religious color so that when a public
school pupil or a student in High school refuses to salute the flag or sing the National anthem with
ones hand on his breast or take the patriotic pledge then the public school can expel or refuse
the child admission even if the child, the childs refusal is based on his religious belief. This was
doctrine for more than 40 years until the Supreme Court decided Ebralinag vs. Division
Superintendent of Schools, in Ebralinag the Supreme Court said that the State cannot dictate on
the person what constitutes a religious symbol and so if for those of a certain religion the flag is in
the nature of a religious symbol the State cannot impose what the State believes on these
people...it would really be, it would be an unfair intervention on the part of the State to compel the
believer to salute the flag this then the ruling now in Ebralinag and this is current case law.
Other cases such as which you mastered in labor only Victoriano vs. Elizalde Rope
Workers Union and which has been reiterated in as least one case recently on those, the
provision of the law that says that those who belong to a religion or a religious sect whose religion
forbids its members from joining a labor union may not therefore be compelled to join a labor
union even if they are working in an industry where there is a Collective bargaining agreement
which has a union shop or a closed shop clause in the CBA.
That old case of Pamil vs.Teleron on ah the prohibition against ecclesiastics running for
municipal public office is not found in the new administrative Code even if as it was found in the
Old Revised Administrative Code, since its not there anymore, I dont see any reason why we
should discuss that at all. Then earlier we spoke of the case of Iglesia ni Cristo vs. Court of
Appeals on the X-rating given by the MTRCB to the television program hosted by Iglesia ni Cristo
recall what the Supreme Court, recall what the Supreme Court said in that case, thethe grant of
an X-rating was made with grave abuse of discretion by MTRCB, the only reason to prevent any
public exhibition of a movie or a television show would be if there is a showing that the continued
exhibition would create a clear and present danger of an evil which the State has the right to
prevent and recall what we said then also, recall what we said the right or the freedom of religious
profession or worship includes the right to proselytize.
In American Bible Society vs. City Treasurer of Manila, the Supreme Court said
members of the American Bible Society who go from house-to-house selling bibles and
distributing religious tracks brochures etc, may not be compelled to obtain a Mayors permit and
pay a license fee for these undertaking because to do that would be to prevent, unduly prevent
the exercise the free exercise of religious profession and worship. It would in effect members of a
religion or a religious sect from exercising the right to proselytize we said the right to proselytize is
the right of a person belonging to one religion to convince or to try to convince or convert others
into ones religion.
Of course Tolentino vs. Secretary of Finance on the application of VAT, the Value
Added Tax on the sale of religious articles, think you mastered that already in taxation, that
whatever burden may be imposed by way of value added is merely incidental and does not affect
at all nor violate ones freedom of religion. In the case of Centeno the Supreme Court said that
even as there is a requirement when you solicit money for civic purposes you are required to
obtain a permit from the Department of Social Welfare and Development, no such requirement is
imposed when the solicitation is for religious purposes, this does not mean that solicitations for

79

religious purposes may not be regulated but in the Centeno Villalon case, there is no such
requirement, the requirement by law is merely imposed on solicitation for civic or charitable
purposes and not for religious purposes, alright. So class that should take care of freedom of
religion
Liberty of Abode and Travel
We move on to Section 6 on the liberty of abode and the right to travel, dalawa na naman
ang nariyanthe liberty of abode and of changing the same within the limits prescribed by law.
The liberty of abode of course is the right of an individual to choose where he wants to reside but
precisely the constitution says within the limits prescribed by law because even if of many of
perhaps would like to reside in Malacanang we cannot do so of course, or maybe we would like to
put up our own house right in the middle of Mendiola Street, again, that is not possible, note that
the constitution speaks of a lawful order of the Court, lawful order of the Court as a valid mode of
governmental interference in the liberty of Abode.
Old cases upholding this liberty or this right to choose ones residence, ah includes, ah,
ah, what VillaVillavicencio vs. Lukban on the matter of the prostitutes who were herded to the
pier and made to go to Davao, the case of Caunca vs. Salazar, the case of a domestic helper
who could not even if she wanted to, could not because of moral duress leave her present
employer even if she already had a prospective second employer that she would have wanted to
go to, the Supreme Court upheld in that case the right of the domestic helper to leave the present
employer, in fact a writ of habeas corpus was issued by the Court to allow the domestic helper to
transfer to another employer even as there was moral duress being exerted on the domestic
helper because the domestic helper had not yet fully paid by way of services or by way of
reimbursement advances that were given to her by the employer.
Alright the right to travel, the right to travel the constitution speaks of national security,
public safety and public health as limitations as may be prescribed by law or as may be provided
by law as limitations on the right to travel. Now class, first, even as we speak of these
constitutional limitations, remember that we a lot of decisions of the Supreme Court to the effect
that a lawful order of the Court may also restrict the persons right to travel, starting with the
Silverio case all the way to Manotok, all the way to Miriam Defensor Santiago and Imelda
Romualdez-Marcos, it wasnow when a person is an accused in a criminal case and is out on
bail, this was the case.this was the situation wherewhich Silverio, Manotok, Miriam and
Imelda found themselves in, there is the requirement that before the accused who is out on bail
be allowed to travel abroad, he or she should first secure permission from the Court where the
criminal case is pending.
This was explained very well by the Supreme Court in the case of Miriam DefensorSantiago vs. Vasquez where the Supreme Court said that this requirement is only an extension
of the exercise of jurisdiction by the Court over the person of the accused, second, the Supreme
Court said since the accused is out on bail and one of the conditions of the bailbond is that the
accused shall submit to whatever the Court may order such as an order for the accused to be
present during the trial then this requirement finds justification, finally, third, the Supreme Court
said, it is the Court where the criminal case is pending that is in the best position to determine
whether the accused may jump bail if allowed to leave for abroad, accordingly this requirement is
a valid mode of governmental interference in the exercise of the right to travel.
In the case of Imelda Romualdez-Marcos vs. Sandiganbayan, the Supreme Court
justified the refusal of the Sandiganbayan to allow Imelda Romualdez-Marcos to travel abroad
even if the reason for travelfor the travel was ostensively for medical reasons. The Supreme
Court said that Imelda Romualdez-Marcos at that time had already been convicted in some of the
cases by the Sandiganbayan and of course there was this greater risk of flight or jumping bail
while abroad since the accused had already been convicted.
Now, that case of Marcos vs. Manlapuz, in the case of Marcos vs. Manlapuz, after the
EDSA Revolution and the Marcos family had to flee the country an attempt, an application for the
issuance for the corresponding travel documents including Filipino passports was filed with the
office of then-Secretary Raul Manlapuz, Secretary of Foreign Affairs, for former president Marcos,
Imelda Marcos and members of the Marcos family, an order was issued by President Aquino
directing Secretary Manlapuz not process nor to issue travel documents to the Marcoses, this
prompted the filing of the case in Court.
In that case the Supreme Court of course, a divided Supreme Court, ruled in favor of the
of the denial to issue travel documents to the Marcoses, the Supreme Court spoke of
considerations to the national security and in fact of the residual power of the president, the
residual power of the president, the residual power would be a power that is not really mentioned
at all in the Constitution but lies at the very bottom of things, lies at very bottom of things, in

80

relation to the obligation of the President of the Philippines to ensure the stability of the
government that the president heads, unfortunately, the Supreme Court did not at all touched
provisions of the Universal Declaration of Human Rights and the Covenant on Civil and Political
Rights to which the Philippines is supposed to be a signatory and which forms part of the
generally accepted principles of international law that are supposed to be already part of the laws
of the land since the Universal Declaration of Human Rights cannotunder the Universal
Declaration Human Rights a person should not at all be prevented from returning to his own
native country, even the Covenant on Civil and Political Rights also guarantees a persons right to
return to his ownhome-country. Of course you take this up in Public International Law, I
understand that 2 weeks you will have your sessions in Public International Law and Im sure that
your lecturer will speak also of recent covenants relative to Human Rights, international
covenants relative to Human Rights and so I understand it is necessary for you to learn this
because there will definitely be questions on Human Rights in the bar exams, ok.
Right to Information on Matters of Public Concern
Section 7 on the right to information on matters of public concern, first, recent decision,
the case of Frank Chavez , the right to be informed of the government transactions even during
the negotiation stage not only upon consummation of the transaction or the entering into a
contract by government, even in the negotiation stage or the negotiation phase of the transaction
should be open to the citizens who desire to obtain information on these transaction. Alright,
perhaps what you should really look at is the enumeration made by the Supreme Court of matters
inin Chavez, of matters that may be denied the citizen who seeks information on matter
ostensively on matters of public concern.
In Chavez, the Supreme Court spoke of 4 exceptions: first, information relative to
privileged communication rooted in the doctrine of separation of powers; second, information
relating to military or diplomatic secrets; third, information affecting the national security; and
fourth, information relative to investigations conducted by the government into offenses
committed prior to the filing of the corresponding criminal information in Court.
And of course in the case of Garcia vs. Board of Investments, the Supreme Court also
declared that a citizen in this particular case, even a member of Congress cannot demand as a
matter of right pursuant to the constitutional guarantee that he be given information relating to
trade and industrial secrets. For this purpose class, perhaps the best ah decision of the Supreme
Court on the scope of the power or the right is Legaspi vs. Civil Ser\vice Commission, where
the Supreme Court said that the right to information on matters of public concern cannot be made
to depend upon the discretion of the government agency itself, otherwise the constitutional right
will be defeated by the exercise of discretion. Of course class, the right to demand information on
matters of public concern may be subject to reasonable regulations such as the time when the
information may be obtained and of course, you want copies of documents, you will have to pay
for the copies yourselves if you are in demand of such copies of documents relating to
transactions entered into by the government. Of course, the right to information is, as we already
mentioned, part of this ah big national policy, State policy of transparency in government
transactions.
Section 28 of Article II, which speaks of full public disclosure of government transactions,
this then is...this policy on public disclosure is given substance by the right of the citizen to
information on matters of public concern. Perhaps ah, you should also look at Valmonte vs.
Belmonte on the right of the citizen to demand the list of members of the Old Batasan Pambansa
who have obtained loans from the GSIS and even as the SU.even as the GSIS refused to
release such list, ostensively because of ahthe confidentiality of information between the GSIS
and the borrower, the Supreme Court, nonetheless said that the GSIS cannot refuse first of
course, the confidentiality rule may invoked only by the borrower and not the lender in that case,
the GSIS is supposed to hold trust funds for government workers and it is within the competence
of the citizen to know how these funds are being used.
Right to Association
Alright, section 8, on the right to association of course you mastered this in labor already.
Note only that even as the constitution guarantees the right to form associations, part of the
guarantee is the right not to join an association, the right of a member to dissociate himself from
the association. And of course even as the constitution speaks of groups or associations in the
public sector, recall that in the public sector they do not allow strikes for mainly because strikes
are almost always staged for economic reasons and economic benefits grated to public
employees and workers cannot be given by just any government agency considering the
requirement that no money of government may be paid except upon a valid appropriation law
passed Congress. Class, when we were discussing, in Congressa, the possible Civil Service

81

Code, one of the issue that stomped us is precisely this, the right of government officers and
employees to go on strike. Despite the decisions of the Supreme Court, it was the consensus
already, at least in the Committee on Civil Service that we can allow government workers to go on
strike provided that the reason to go on strike is not economic, if it is for example incompetence of
the management, of the manager or corruption of management, we felt that maybemaybe it
should be within the competence of government employees and workers to go on strike but the
Civil Service Code was never passed, it never went to second reading at all.
Non-Impairment Clause
Alright Section 9, we already took up in connection with eminent domain. Section 10, on
the non-impairment clause. Alright, what do we, what do you have to remember relative to the
non-impairment clause, the meaning of impairment, wherewhere the law or the government act
reduces the efficacy of the contract because it changes the conditions or the provisions of the
contract by law or government issuance, then there is deemed to be impairment. However, recall
that police power, eminent domain and taxation prevail over the non-impairment clause.
The majority of cases decided by the Supreme Court on this matter have to do with
zoning ordinances, recall in this connection that a zoning ordinance passed by a local
government unit is in the nature of a police measure therefore a zoning ordinance prevails over
an obligation of contract. Note again however, that even as we recognize that these zoning
ordinances are valid police measures, recall that the Metro Manila Development Authority does
not have the power to issue or promulgate ordinances because the MMDA is not vested
delegated police authority. And so in MMDA vs. Bel Air Village Homeowners Association, the
Supreme Court declared that the MMDA does not have the power to issue, or to promulgate or to
prescribe zoning ordinances.
Perhaps, the best example would a still be Feati Bank, Ortigas vs. Feati Bank, involving
a parcel of land situated in Mandaluyong owned by the Ortigas family or the Ortigas company
because even as the purchaser of the lot obtained a title for the lot the title contained precisely a
restriction to the effect that the property would be used solely for residential purpose then the
property was sold to Feati Bank and Feati Bank started to construct a commercial building in that
parcel of land, thats why Ortigas and company went to Court to stop the construction precisely
because there was supposed to be a restriction already found in the title that the property would
be used merely for residential purposes. It was shown however, that the Municipality of
Mandaluyong had already by then passed a zoning ordinance, reclassifying the area into a light
industrial and commercial area, and the ordinance passed by the Municipality of Mandaluyong
being an exercise of the police power prevails over the restriction found ion the title, this is all the
same, I mean, the principle is the same in the numerous Bel Air Village Homeowners Association
cases. The Bedan graduates here no longer remember Judge Sangco, you dont remember
Judge Sangco anymore, Judge Sangco was one of the lawyers of the homeowners in Bel Air and
he filed a number of cases, he went all the way up to the Supreme Court because of the many
incidents relative to the zoning of part of what was Bel Air including Jupiter Street especially
Jupiter Street in Bel Air Subdivision. Ngayon ang Jupiter ay puro restaurant na, ano, restaurant
row na, because this was supposed to be purely residential but ah in the case of Jdge Sangco ah
mayroon siyang isang kaso na umakyat sa Supreme Court then the Supreme Court rendered a
decision then Judge Sangco filed a Motion for Reconsideration his opening statement was, it is
perhaps no coincidence that the decision of this honorable Court reads almost exactly as the
memorandum of the defendants for that statement he was suspended by the Supreme Court in
practice of law. Ganoon katindi ang Supreme Courtganoon katindi ang Supreme Court pag
medyo maski pipitikin mo lang nagrereact kaagad pero pag iba ang in-a-atakethe people
should be given the widest latitude to criticize public officials not only for their public and official
conduct but even for the conduct of their private lives especially those who have 3 or 4 even if
they have not Muslims, so ganyan. Anyway, we already discussed that so note only again that
eminent domain, as well as the power of taxation, prevail over the non-impairment clause.
Section 11section 11section 11 a purely a social justice provision and from your
mastery of remedial law you know very well that those who are poor may institute pauper suits so
wala tayong problema dyan just read that.
July 12, 2004
Miranda Doctrine
All the other cases really, merely touch upon all of these, uncounselled statements
obtained through force, intimidation, etc. So, I think we have covered the basic principles
involved. Remember Republic Act 7438 class. Republic Act 7438. Ang tingin ko kase, kung
magtatanong din lang dito, it is possible that Ordonio, People vs. Ordonio will be the subject of
your question. Kung may itatanong. Of course, there are so many decisions also on receipt of

82

seized property. And so, madali naman 'yon basta 'yung receipt of seized property, 'yung
pinapipirma ang suspect, inadmissible in evidence. Alright.
Section 12, on the Miranda Doctrine, ok, section is known as the Miranda Doctrine in our
jurisdiction because the rights mentioned in section 12 are rights that were actually mentioned in
the leading case in Miranda vs. Arizona decided by US Supreme Court, whenlook at the rights
mentioned, the right to remain silent, the right to counsel, the right to be informed of the right to
remain silent and the right to counsel, the right not to waive the right to remain silent and the right
to counsel except in writing and in the presence of counsel, the right ah to have to exclude ah as
evidence any confession or admission obtained in violation of the entire section, the right against
violence, force, intimidation or anything that vitiates the free-will the right against secret detention
places, the right to compensation, the right to rehabilitation in the event that there is force,
violence exerted upon the person.
The right to be informed in the Miranda vs. Arizona case, it is the right to be informed that
is known in American jurisprudence as the Miranda warning in theyou probably would not have
notice this because anopero early on in American movies at the end of the movie or towards
the end of the movie na nahuhuli na rin yung kontrabida nf bidang detective or police o whatever,
nahuli na, magdudukot na yung police ng anodudukot dito sa bulsa niya babasahin na niya
yung you have the right to remain silent anything you say may be used against you in a Court of
law yung ganyan, ganoon ang mga sine noon, and then after siguro mga 10 years 12 years ng
Miranda, aba yung mga bida, yung mga police sa sine hindi nagbabasa, namemorya na rin
yungb ano you have to remin silen, sabi ko mukhang..mukahang mga bobo ata mga police sa
America,ang tagal bago nila mamemorya yung warning na yon na ano, ay. Alright first principle
that you have to remember, these rights are available only during custodial investigation,
custodial investigation or custodial interrogation.
Custodial investigation takes place when there is a questioning made by the
government investigators after the investigation has shifted from a general inquiry into an
unsolved crime and has began to focus on one person or peror the persons who are now prime
suspects as perpetrators of the offense, as perpetrator or perpetrators of the offense. If theif the
investigation is still a general inquirystill a general inquiry then there is no custodial
investigation yet, therefore the person cannot yet invoke the rights under section 12. Alright look
at a number of cases decide by the Supreme Court, an auditan audit conducted by the auditor
on aan accountable officer is not in the nature of custodial investigation therefore the
accountable officer cannot demand the presence of counsel and cannot demand the exclusions
of whatever admissions or confessions he may have made during the audit. An investigation
conducted by the office of the court administrator has been held not to be part of custodial
investigation, the court administrator is not a police investigator. An investigation conducted by
the Civil Service Commission into alleged cheating or fraud in the conduct of examinations is not
custodial investigation. An investigation, an investigation bylalo na ang privateprivate
invest.private company investigatinginvestigating alleged malversation or misappropriation
by its employees, this does not constitute custodial investigation.
Preliminary investigation conducted by the prosecutor is not custodial investigation and
so class we refer to custodial investigation really as that inquiry, that interrogation that takes place
after a prime suspect or prime suspect has or have already been identified and that the
investigation now focuses on him or them as the case maybe. Mahirap lang dahil masyadong
maraming cases kaya in light of Republic Act 7438 the Supreme Court for example has said
that this practice of policemen of inviting suspects is already supposed to be covered by custodial
investigation and so for example in that one case ah bata, pinick-up ng pulis, pinasakay sa pulis,
ah sa jeep, owner-type jeep, dito sa likod nakaupo ang isang policeman nagdri-drive yung isa
kinakasuap yung bata at nagsasabi ganoon ganoon ganun or bakit nasan ka ba nun,, bakit mo
ginanyan mo ba, ganun ba, ahganun ganun ay. This was held to be custodial investigation.
Alright,now, even when a suspect has brought to police headquarters and he is paraffin tested or
photographed or finger printed or made to stand in a police line-up this is not yet custodial
investigation, and so again, photographing, paraffin testing and ah finger printing are not per se
parts of custodial investigation.
Now with respect to a police line-up, as a rule a police line-up does not constitute part of
custodial investigation and so the suspect made to stand on a police line-up cannot claim the
rights under section 12. 2002 decision, the case of People vs. Escordial, the Supreme Court in
People vs. Escordial classified the confrontation between the witness, the cases or the instances
when there is confrontation between the witness and suspect, this pre-trial confrontations may be
classified according to the Supreme Court into what is known as the Show-up and of courses the
police line-up. A show-up takes place when one witness is made or the suspect is brought faceto-face with thewith a witness, sinasabi ng policeman ano eto ba, eto ba, eto ano, ano, sabihin
mo na ito, ito na nga, so show-up. A police line-up on the other hand is whetakes place when

83

the suspect is made to join other persons and the witnesses are made to identify ah whoever, if
he can recognize anyone there as the perpetrator of the offense, alright. The Supreme Court said
that custodial investigation has already commenced then this show-up or police line-up already
form part of the custodial investigation and therefore the suspect should already be given the
benefit of the rights granted under section 12. The Supreme Court said that if not, if these are not
ahah if the suspect is not given the benefits of the Miranda the Miranda Doctrine, the trail will
become merely a formality because here in this very crucial pre-trialpre-trial stages of the
criminal investigation, there may already be full identification etc of the suspect at tapos na lahat,
the rest will become merely a formality. Accordingly the Supreme Court said in Escordial, if
custodial investigations has already commenced these stagesuhmthese crucial stages of
pre-trail ah may spell the difference and so it is imperative that the suspect be already given the
benefit of the Miranda Doctrine. Ok, what are the rights again, the right to remain silent, the right
to remain silent of course is personal with the suspect, suspect brought for ah custodial
investigation has the right not to say anything. The presence of counsel is not intended to make
the suspect give a statement it is to protect the suspect against giving any statement that he does
not want to give.
Right to Bail
The Constitution speaks of only one exception. When charged with an offense punishable
by reclusion perpetua or higher and evidence of guilty is strong. However class, in the case of
Commendador vs. De Villa, the Supreme Court said when military personnel are charged with
criminal offenses, traditionally they are not entitled to bail. Commendador vs. De Villa made
reference to an earlier decision of the Supreme Court in the case Aruta vs. Pino where the
Supreme Court declared that by tradition, military personnel are not entitled to bail and for them,
speedy trial is really resorted to in as much as they are not entitled be released on bail. Class,
this is not found in the Constitution. And so this is really a judicial exception, an addition made
possible by a judicial decision.
The earlier case adverted to in Commendador vs. De Villa was the infamous Jabida
massacre, where a group of military personnel were supposed to have been given special
training in Corregidor. It was bruited around that the reason why they were being trained was so
they could be sent to Malaysia because at that time the Philippines and Malaysia had really
abraded relations owing to the Philippine claim to Sabbah. For one reason or another not
released to the public, the trainees were killed before they could even be sent on this mission.
One of the trainees was supposed to have escaped and he allegedly swum from Corregidor to
somewhere in Cavite on his way back to Metro Manila. There was this ah, the Commanding
Officer of the group was popular at that time. He was, his name was Abdul Latif Martelino. But
you see, by virtue of that Supreme Court decision in Aruta, the Supreme Court in effect had to
follow suit in the case of Commendador vs. De Villa. You know, in Commendador vs. De Villa, we
have these people, officers and men of the Armed Forces, who were subjected to Court Martial.
Court Martial. Now, the officers and men subject of the Court Martial proceedings sought bail from
the military tribunal. The military tribunal denied bail. Instead of going up to the President of the
Philippines, because the military tribunal was supposed to be and is still is, and is still is an
agency of the Executive Department. Instead of going up to the President, they field a petition for
bail with the Quezon City RTC. The judge in the RTC branch, the presiding judge took
cognizance of the petition for bail and granted bail. Granted bail because according to him, the
Constitution does not at all, the Constitution does not at all distinguish. It, it only exempts cases
involving persons charged with offenses punishable by reclusion perpetua or higher. Elevated to
the Supreme Court, the Supreme Court said traditionally, military personnel are not entitled to be
released on bail.
From the Constitutional Law perspective we have only those two exceptions. One, by
tradition and the other, because of the constitutional provision. Now, when a person is charged
with an offense punishable by reclusion perpetua or higher and he petitions for bail, then note the
many decisions of the Supreme Court. All of which point to only one thing, that it becomes the
duty of the court to conduct a hearing, conduct a hearing in order that the court may determine
whether or not evidence of guilt is strong. The hearing is mandatory. In fact, even if the prosecutor
does not object to the grant of bail, it is still obligatory for the judge to conduct a hearing because
it becomes the duty of the judge to determine from the evidence presented during the hearing
whether or not evidence of guilt is strong. In a number of cases, in at least two cases relatively
recent, one of the things pointed out is that it is not, rather, it is not unusual, it is not unusual for
the court to have granted bail by making a preliminary determination that evidence of guilt is not
strong and yet in the ultimate, convict the accused because proof beyond reasonable doubt had
eventually been adduced.
On the other hand, it is also not unusual for the court to deny bail because evidence of
guilt apparently is strong but then in the ultimate acquit the accused, because perhaps proof

84

beyond reasonable doubt was not at all presented or achieved. I would like you to read your
rules, the provisions of the Revised Rules of Criminal Procedure on when bail is a matter of right.
Of course it is a matter of right when charged in the lower court, in the trial court charged with an
offense punishable by less than reclusion perpetua. And then, the matter of discretion when grant
of bail is a matter of discretion on the part of the court and when bail is to be denied. It is very
clear class that when an accused is convicted in the trial court and the conviction carries with it
the penalty of reclusion perpetua or higher, then on appeal bail must be denied. Because then,
you have a case already which squarely fits the exception, squarely fits what the Constitution
provides. After conviction by the trial court then clearly evidence of guilt is strong. But note that in
your Rules of Court, bail is also to be denied when a person originally charged with an offense
punishable by reclusion perpetua or higher is convicted and sentenced to a penalty less than
reclusion perpetua, and appeal, that is bail is to be denied on appeal.
In the case of People vs. Reyes for example, where the conviction was for large case
estafa and the penalty was an aggregate of 22 years imprisonment, and the case was on appeal
and the accused asked that she be released on bail using the same bail bond that was posted in
the trial court. The Supreme Court denied the application for bail and said 22 years imprisonment
is already reclusion perpetua and therefore, having been convicted by the trial court, evidence of
guilt is strong and so, the application for bail has to be denied. Note class that in the hearing to be
conducted by the court for purposes of determining whether evidence of guilt is strong, in fact a
number of judges were sanctioned by the Supreme Court. I know of one judge who was even
dismissed from the service for granting bail without conducting a hearing. Then of course the
effect of bail and the right to travel abroad.
Bail and the Suspension of the Writ of Habeas Corpus
The effect of bail in relation to the suspension of the privilege of a writ of habeas corpus,
note that even if the writ, if the privilege of the writ of habeas corpus is suspended, the right to bail
is not at all impaired. And then the constitutional requirement that excessive bail shall not be
required. All these principles plus your own mastery of, your own mastery of Criminal Procedure
should be more than adequate for purposes of Political Law.
Constitutional Rights of the Accused
Criminal Due Process
So we move on to Section 14 and we look at the first paragraph in Section 14 on criminal
due process. Note in this connection that we have also ample jurisprudence that it is not only the
person who is being charged who deserves due process of law, even the people of the
Philippines and so in the case of Galman vs. Sandiganbayan, the Supreme Court said that even
the prosecution is entitled to due process of law. Note in the case of Mejia vs. Pamaran, the
statement made by the Supreme Court about the alleged requisites of criminal due process. Note
that even if the words are different, these are basically the same as the requisites of procedural
due process. The first speaks of the accused being proceeded against for a court of competent
jurisdiction. This is of course equivalent of your tribunal, impartial tribunal clothed with the
authority to hear and decide the case. Second, the accused being proceeded against under
orderly processes of law, that I think would also be the equivalent of jurisdiction being acquired
over the person of the defendant. Then the defendant or the accused being given notice and an
opportunity to be heard, that's the same, and the judgement to be rendered pursuant to a valid
constitutional law. Alright.
So, on the matter of impartiality, recall our cases already mentioned when we discussed
due process. The case of Tabuena vs. Sandiganbayan, Imelda Romualdez-Marcos vs.
Sandiganbayan where the Court took upon itself the role of both the prosecutor and judge, having
asked most of the questions that having cross-examined the accused in Tabuena and the
witnesses, as well as the witnesses in Imelda Romualdez-Marcos. Note also in this connection
the many decisions of the Supreme Court which were held to be violations of criminal due
process occasioned by the delay, delay in the preliminary investigation of criminal cases. Starting
with Tatad all the way to Tirol, Roque Although of course in a number of cases, in the case of
Socrates, the delay was not held to be a denial of due process nor a denial of the right to speedy
disposition of cases. In the case of Miriam Defensor-Santiago, owing to the complexities of the
issues involved, the Supreme Court said that the delay did not constitute a violation of due
process.
We have a 2003 decision where the Supreme Court also declared that the delay in the
investigation did not amount to denial of due process nor a denial, investigation conducted by the
Ombudsman, did not constitute a denial of due process, nor did it constitute a denial of the right
to speedy disposition of cases because there were more than 40 respondents involved. And

85

again, the issues were complex and the investigator deemed it necessary to require all of the
respondents to submit the respective counter-affidavits. And that a number of the respondents
requested for extension of time within which to submit the respective counter-affidavits. In that
case the Supreme Court said that a number of the respondents had in fact therefore acquiesced
to the delay and in a number of respondents even been the cause of the delay. Accordingly, there
was no denial of the constitutional right either to due process or to speedy disposition of cases.
Look at the case of Joseph Ejercito Estrada vs. Sandiganbayan on his challenge of
the constitutionality of the Anti-Plunder Law, where he raised among others, questions of due
process of law, criminal due process, raising basically the, well He raised three basic issues.
One, the vagueness of the law under the principle of void for vagueness, under the principle void
for vagueness. The second challenge was that the law apparently did away with the requirement
for proof beyond reasonable doubt. And the third, that the law did not require any poof of mens
rea or criminal intent in the matter of conviction or the required, the required proof for conviction
under the Anti-Plunder Law. class, the void for vagueness rule was raised as a due process
challenge which, and at the same time, it should be a challenge to the ah, a challenge to the
criminal information invoking the right to be informed of the nature and the cause of the
accusation against him. Under the void for vagueness rule, a law that is couched in so ambiguous
or indefinite a language such that a person of ordinary intelligence will not be able to determine
what act or acts are being punished, is therefore void because it is vague. Basically as I said, this
goes into the matter of the nature and the cause of the accusation against him. Because if you do
not know what act or acts are being punished under the law then that means you cannot be
validly informed of the nature and the cause of the accusation against him. I don't know if it was
intentionally raised by the lawyers when they said on behalf of Joseph Estrada that the Plunder
Law was vague, saying in effect that Joseph Estrada could not understand what the law really
punish.
The Supreme Court of course said that the challenged sections of the law were clear,
clear in the acts that were supposed to be punished. Even as, because you are the ones who
have mastered Criminal Law, plunder requires predicate crimes, which altogether add up to the
plunder. And it is precisely what the Supreme Court said in connection with the challenge on the
lack of mens rea by saying that the predicate crimes are themselves mala in se and mala in se
offenses require criminal intent. And so if the predicate crimes themselves are mala in se then of
course plunder is malum in se and therefore requires precisely criminal intent for purposes of
conviction. And of course, on the challenge that reasonable, that proof beyond reasonable doubt
is no longer required, the Supreme Court also disagreed with that and said that there is still the
obligation of the prosecutor to prove the guilt of the offender beyond reasonable doubt. Alright.
Presumption of Innocence
Let us move on to the second paragraph. First, on the presumption of innocence. The
basic principle underlying the presumption of innocence right guaranteed in the Constitution is
that whenever any allegation or fact is capable of dual interpretation one consistent with
innocence and the other consistent with guilt, then it shall be interpreted as consistent with the
person's innocence. In this connection, I would like to call your attention to the fact that the
presumption of innocence rule is supposed to prevail even over other ordinary presumptions in
law. From your mastery of the Law on Evidence you are acquainted with the presumptions in
evidence. Presumption that official duty has been regularly performed does not prevail over the
presumption of innocence. Although of course when the presumption of official duty having been
regularly performed is supported by other facts then the presumption of innocence may be
rebutted.
We have two decisions in 2001, no, in 2002, regarding certain other presumptions. Note
class, both Sandiganbayan cases there is a presumption that when an accountable officer is
audited, and he is found not in custody of cash or securities that he is supposed to be holding
then there arises a prima facie presumption that he has misappropriated the same. The Supreme
Court said in this particular case what happened was the court, the prosecution, did not prove
anymore, did not by any other evidence prove misappropriation anymore. Relying completely on
the presumption in law. The presumption.
The Supreme Court said the presumption standing alone shall, cannot prevail over the
presumption of innocence. The Supreme Court said the same in yet another case on the
presumption relative to possession of a falsified or forged document. You know very well that
there is a presumption in law to the effect that he who is in possession of a forged or falsified
document is prima facie presumed to be the author of the falsification or of the forgery. Again, the
Supreme Court said if no there evidence is adduced by the prosecution and the prosecution
simply relies on this presumption, then the conviction of the accused is reversible because this
presumption standing alone cannot prevail over the constitutional presumption of innocence. And

86

then of course class, on presumption of innocence, recallthis was asked in Remedial Law not in
Political Law, recall the equipoise rule. The equipoise rule states that when after trial, the
evidence of the prosecution and the evidence of the accused are evenly balanced, then the court
must acquit the accused. The court must acquit the accused because in his favor is to be credited
the constitutional presumption of innocence. And so if you have the evidence of the prosecution
and that of the accused evenly balanced then the presumption of innocence comes in until the
balance in favor of the accused, accordingly the accused has to be acquitted.
Right of the Accused to be Heard by Himself and Counsel
The next constitutional right of the accused is the right to be heard by himself and
counsel. This is also a basic right flowing from due process of law. This is the opportunity to be
heard. The right to be heard. But now comes the Constitution and adds this right to counsel. To
be heard not only by himself but also by counsel. The right to counsel therefore becomes
imperative. During custodial investigation, we said the right to counsel may be waived. But the
right to counsel during the trial from arraignment through trial and even upon promulgation of
judgment cannot be waived. Cannot be waived according to the Supreme Court because no
matter how intelligent and how educated the accused may be, he may not be acquainted with the
law nor especially with the rules of procedure. And so he may be convicted not because he is
guilty but because he doesn't know how to prove his innocence. And so, again, this right to
counsel, this right to counsel includes the right to be represented by counsel who is also
competent especially in the matter of counsel appointed by the court where the accused does not
have the means to hire his own counsel. And so, it's not surprising that the Supreme Court
reversed a judgment of conviction where the records showed that there was a pro forma
appointment of counsel. And that the counsel apparently did not at all exert efforts in protecting
the rights of the accused.
I remember many, many years ago, many, many years ago when our bread and butter in
the province when we were practicing were really the officio cases. I remember this was the first
assignment of Justice Pamaran, he was judge. He was appointed as judge in our province. And
we, there were two judges then already in my hometown to ah, CFI pa ang tawag non, CFI
judges. We like to appear before Judge Pamaran because when he awarded attorney's fees to
the officio counsel, mas mataas kaysa dun sa isa. Oo. Tuwang-tuwa na kami noon when in his
decision, he would say "Atty. Nachura, counsel de officio, is hereby awarded the amount of 50
pesos as attorney's fees." Kasi 'yung isa, 'yung isang judge, mataas na 'yung trenta pesos dun
sa kaya dito kami gusto kay Pamaran. Ang problema mo lang dito dahil lagi kang talo. Laging
convicted ang iyong, iyong kliyente. I did not have the privilege or the ano, the trauma of being
counsel for an accused who was sentenced to death by Pamaran. Kaya ano. Kasi pag death ang
ano, pag capital offense, pag ikaw ay ano, pag ikaw eh counsel de officio ng akusado in a capital
offense, he would give you attorney's fees up to 100 pesos. Kaya, kaya maganda sana pero we
were never given the opportunity. Mabuti naman din at hindi dahil ano. So, ayon. Ah, many of
these cases, many of these cases were really, were really cases involving clients who were
willing to plead guilty. Of pleading guilty, tama na lang ang trenta pesos dahil wala ka namang
ano eh. Minsan ka lang, minsan ka lang tatayo don. Minsan ka lang tatayo na magpi-plead guilty
o di ayos na. So, ah, what are, what are we saying class, there, well of course that is the
obligation of the lawyer also to really protect the interest of the client even if the client appears to
be or even if he admits to be guilty.
Right to be Informed of the Nature and Cause of Accusation
The next constitutional right is the right to be informed of the nature and the cause of the
accusation against him. In the case of People vs. Valdesancho, the Supreme Court said that
there are three reasons why the accused must be informed of the nature and the cause of the
accusation against him. First, so that he may be informed of the nature of the charge in order to
be able to prepare an adequate defense. To prepare an adequate defense. Second, he has to be
informed of the nature of the accusation in order that he may be able to avail of a prior conviction
or acquittal by raising the double jeopardy in abatement of the criminal information. And third, the
intention is really o inform the court also of the charges against the accused so that the court may
be able to evaluate whether or not the accused is guilty or innocent of the charge. There is a
requirement, this is Criminal Procedure again, there is supposed to be a requirement for criminal
information to state in order to comply with the constitutional requirement the name of the
accused, the approximate time and place when the offense was committed, the acts constitutive
of the offense attributed to the accused, the name of the offended party, and such other facts or
circumstances as precisely would define, help define the offense. Even the designation of the
offense under the law has to be included there. But we have more than ample jurisprudence on
the fact that where time is not an essential element of the offense, a criminal information that
does not mention the time when the crime was committed will not invalidate the criminal
information.

87

Soriano vs. Sandiagnbayan is important in that in Soriano vs. Sandiganbayan, the

Supreme Court said that it is the description and not the designation of the offense that controls.
Here is your criminal information, Republic of the Philippines, whatever national o in our place it's
the 8th Judicial Region Branch whatever etc., People of the Philippines vs. X. Criminal Case no. 4.
Designation of the offense. Information. The undersigned prosecutor accuses X of the crime of
etc. committed as follows, that on or about etc., especially indented na dito, contrary to law. Then
the prosecutor, the witnesses, the bail recommended, etc. In Soriano vs. Sandiganbayan, a fiscal
in Quezon City was entrapped Malas lang nung fiscal. One of the parties to a case pending
before the fiscal's office, in fact the complainant, the complainant was the mother of a beautiful
lady who was the girlfriend of a law student in San Beda. Nagsumbong sa law student sa San
Beda. Nagsumbong na mukhang hinihingian kami ng fiscal para sa aming, sa complaint ng nanay
ko. Eh, tamang-tama 'yung estudyante. Naging estudyante ni Justice Fernandez. Justice
Fernandez was already Tanodbayan at that time. So the law student went to see Justice
Fernandez. Justice, ganito ang nangyayari sa amin. Justice Fernandez called up the NBI. And the
NBI prepared an entrapment for the ano. Ok. So, entrapped. Huli. In flagrante. Charged with a
criminal information that said Criminal Case No. 4, violation of the Anti-Graft Law. Anti-Graft. The
description of the offense showed that the offense committed was bribery. Charged before the
Sandiganbayan, the Sandiganbayan convicted the accused of bribery. Went up to the Supreme
Court on certiorari saying that he was denied the constitutional right to be informed of the nature
and the cause of the accusation against him and therefore his conviction should be reversed.
Because he said, he was charged and he did prepare his defense against, charged for and
prepared his defense against violation of the Anti-Graft Law, and he was convicted of an offense
other than that which was charged. The Supreme Court said no. What controls in the criminal
information is the description of the offense and not the designation of the offense. Therefore,
since the description of the offense showed acts equivalent to bribery, therefore the conviction for
bribery was a valid conviction. There was no denial at all of the right to be informed of the nature
and the cause of the accusation against him.
Note class, that the right to be informed of the nature and the nature of the accusation
against him is deemed complied with by a reading of the information and requiring the accused to
plead guilty or not guilty. This is supposed to be accomplished through that. Of course, if the
accused does not understand English which is the normal language in your criminal information, it
is incumbent for the court to translate that information into a dialect understood by the accused.
Accordingly, in the case of People vs. Crisologo and in the subsequent case of People
vs. Parazo, where the accused was a deaf mute, and the court could not find anybody in the
place that could translate through sign language the information. Walang makita, eh madi-delay
nang madi-delay, nagmamadali 'yung judge. O sige. Sabi nung judge sa clerk, just read, read the
information to him. So binasa. Walang narinig 'yung tao. And tinanong, how do you plead?
Walang masabi, hindi makapagsalita eh. Alright. So, sabi ng judge, enter a plea of not guilty. And
then they went on to trial. So the Supreme Court said, eh wala eh, na-convict dahil walang, ni
hindi marinig kung anong sinasabi ng mga witnesses. Eh wala. Nobody could interpret for him.
So, he was convicted. The Supreme Court had to reverse the conviction because there was a
denial precisely of the right to be informed of the nature and the cause of the accusation against
him. If I, if I were, if I had been Bar examiner, one of the questions I would have asked in the Bar
Exams would have been very simple. One, one sentence question. May the accused be
convicted of an offense other than that which is charged? Explain your answer fully. One percent
syempre. Eh maiksi lang, maiksi lang ang tanong. 'Yon. It is in connection with this the right to be
informed that you look at this, look at the area of the possibility of a person being convicted of an
offense other than that which is charged. Of course, the Supreme Court had in a number of cases
also declared that even this rightwell, the right to be informed of the nature and cause of the
accusation against him cannot be waived. It cannot be waived. However sabi ng Supreme Court,
it is different altogether if the accused refuses to enter a plea. Binasahan na s'ya. He refuses to
enter a plea. The case of Brian Ferdinand Dy. The Court simply said then if the accused refuses
to enter a plea
No formal arraignment was actually made at which there was a reading of the information
in court and there was a question asked of the accused, "How do you plead?" The accused
answered by saying "not guilty." Even as this proceeding did not actually take place, the Supreme
Court said it cannot be denied that the accused and counsel had copies of the criminal
information. That the accused and counsel went on to trial. Accordingly at later they cannot claim
that they were not informed, the accused, were not informed of the nature and the cause of the
accusation against him. Against them kasi maraming akusado 'yun eh. Ok. On the issue of, on
the issue of waiver, waiver may take place not a waiver of the right to be informed of the nature
and the cause of the accusation against him but a waiver may take place where one does not
object to the fact for example that two offenses are charged and both offenses are proven in

88

court. Of course, the first answer to the question, "may a person be, be convicted of an offense
other than that which is charged?" the answer should be first, as a rule no. Because if he is
convicted of an offense other than that which is charged, he would be denied the right, the
constitutional right to be informed of the nature and the cause of the accusation against him.
However, he may be convicted.
Of an offense other than that which is charged if he is convicted of an offense that is
necessarily included in the offense charged. Such as where he is charged with murder, he may
be convicted of homicide because of the failure of the prosecution to prove any of the qualifying
circumstances that would qualify homicide to murder. He may also be convicted of an offense
other than that, he may also be convicted of an offense other than that or in addition even to that
which may be charged, if he does not at all object to the introduction of any evidence to support
the additional charge found in the information. But, that, where the offense is not at all contained
in the information and not necessarily included in the offense charged, he cannot of course be
convicted. And so, there are also a number of cases especially in 2001 and 2002, a number of
decisions where the Supreme Court reduced the penalty of death, reduced the penalty of death,
when there was a failure in the criminal information, in a criminal information for rape to allege the
relationship between the victim and the accused. Because in many of these cases, we have a lot
of incestuous rape. The father raping his own daughter. And where the trial court had to render a
judgment of conviction and sentencing the accused to death. But where there is no such
allegation that would have made the imposition of death penalty proper then the Supreme Court
had to reduce the penalty imposed. And so class, it is really in this connection that we encounter
the void for vagueness rule.
Void for Vagueness Rule
Void for vagueness rule. American concept ito kasi dun sa American concept, ang
example lang ng void because of vagueness, if there is a law daw punishing a ano, punishing
gangsterism. Gangsterism. Where the law itself does not specify the acts that will constitute
gangsterism. And so, dahil sa gangster, ico-convict The law would be void for being vague.
Alright.
Right to a Speedy, Impartial and Public Trial
Then of course the right to a speedy, impartial and public trial. Right to a speedy, impartial
and public trial in the matter of a speedy trial, please note that not every delay will violate the right
to a speedy trial. Unjust vexatious delay. Not every delay will result in a violation and so you
examine the circumstances of each and every case. Relate this of course, this right to speedy
trial, to double jeopardy. Because note that when a criminal action is dismissed on the ground
that there has been a denial of the constitutional right of the accused to a speedy trial, then
double jeopardy will set in and will prevent a subsequent prosecution for the same offense.
Impartial trial, we have discussed the matter of impartiality of courts, etc. for a long time
already since we discussed due process in Section 1. The necessity for public trial is intended to
protect the accused because a non-public trial could result in the court and the prosecution simply
railroading the accused as it were. Although of course class you know very well that there are
many instances when the court may require the public excluded during certain portions of the trial
of certain criminal cases. In a prosecution for rape normally when the victim is called to the
witness stand, the prosecutor asks that the public be excluded because of the highly sensitive
character of the testimony of the victim of, the victim in rape. So iniiwan na lang ang ano. So, it's
normal. In fact, I recall having participated in an action for annulment. Annulment lang. Na, the
ang aming kliyente 'yung lalaki syempre, 'yung nanghihingi ng annulment. Kasi gusto nang magasawa ng iba. But the lawyer for the lady, the lawyer for the wife, asked that the case be heard in
chamber when the wife started to testify. We did not object of course. We allowed that. And so we
repaired to the judge's chambers and there, the testimony of the wife from 'yung direct
examination saka 'yung cross-examination namin, doon sa, in chambers away from the public.
There were not many, not so many sensitive things actually taken up in the testimony but 'yun
ang gusto nila. Pumayag din naman kaagad ang judge and so wala namang. Mas mabuti pa nga
'yon. At ayaw siguro namang mapahiya na ano maraming tao especially the woman of course.
'Yun bang napakaganda pa naman non, nung babae eh, sasabihin na umaayaw sa kanya 'yung
lalake at gustong makipaghiwalay. Isipin n'yo 'yun. Insulto naman sa babae 'yon. That was reason
enough to repair to the chambers para. Of course the gentlemen here would probably say, pag
ganyan hindi 'yan hinihiwalayan. Dinadagdagan.
Right to Meet Witnesses Face to Face
Then class, the right to meet witnesses face to face which is of course given substance in
the matter of cross-examination of witnesses. Accordingly, the testimony, the direct testimony of a

89

witness may not be considered at all by the judge if the accused was not given an opportunity to
cross-examine that particular witness. Very, very simple. Then, the right to compulsory process to
secure the attendance of witnesses or the production of documents in his behalf. Class, here,
here, as a normal practice in trials, the judge normally asks the accused, "o meron ka bang
subpoena o kaya you take care of your witnesses ha, you bring your own witnesses, etc." It is of
course the duty now of the lawyer for the accused if he wants to subpoena witnesses or
subpoena the production of evidence to manifest before the court. You know of course that a
subpoena is issued by the court, a subpoena ad testificandum in order to compel the attendance
a witness and for documents, a subpoena duces tecum. Wala naman din d'yan. Of course if there
is a denial despite the prayer on the plea of the accused for the issuance of any such compulsory
process and there is arbitrary denial of the request, then the decision, the judgment of conviction
may also be reversed.
Trial in Absentia
Then class the matter of a trial in absentia. The Constitution provides that trial shall not
be postponed, it shall go on despite the absence of the accused if the accused has already been
arraigned, and these are the requirements; already been arraigned, he has been duly notified of
the dates of the trial, and his absence during the trial dates is unjustified. It is now incumbent and
mandatory upon the court to continue with the trial even in the absence of the accused. Class, it
is not uncommon when the accused is out on bail for the accused not even to attend the trial. He
can waive his presence during the trial. Except of course during arraignment and during
promulgation of judgment, unless it is an offense, a light offense where the lawyer may represent
the accused.
During the trial per se, if the accused is out on bail, he may be excused from attending
personally each day of the trial. However, he may be compelled to appear upon order of the court
if a witness is to be placed on the witness stand and it is imperative that the witness identify the
accused. But even that class can be waived by the accused. The lawyer can simply say that for
purpose of identification, we stipulate, we are willing to stipulate that the witness will be able to
identify the accused. That if asked if he can identify the accused, the accused can be identified by
the witness and the accused admits that the witness can identify him. With such a stipulation you
can ask the accused not to attend trial. Kase ang ibang accused nahihiya na pumunta sa korte na
naroon sila. Akusado sila ng kaso, when there are many people there. So, so ganyan. So, even
as theoretically, theoretically, there are these aspects of the trial when the accused must appear
arraignment and entry of the plea, during trial when his presence is required for purpose of
identification by a witness, and during promulgation of judgment. As I said, ok lang 'yongof
course if he is under detention, his presence will be required during all stages including during
every day of the trial.
On the other hand, after arraignment, if he jumps bail or escapes from confinement, then
the Supreme Court said he loses his standing in court. He cannot even invoke the right to appeal
unless he comes back and submits himself to the jurisdiction of the court. Accordingly, if he is still
at large, if he is still at large at the time of the scheduled promulgation of judgment, the judgment
can be promulgated by simply entering a copy the judgment in the criminal docket, provided of
course that prior notice on the date of promulgation had been given to the bondsmen, if there are
bondsmen, to the counsel or to the warden if confined and he escaped confinement. And a copy
of the judgment will also be served upon the counsel if counsel is there. So, 'yon. 'Yung ah, sino
'yungRolito Go. Rolito Go who was confined in Pasig and then in the course of the trial he
escaped. Escaped. And so he could not even present evidence. The court convicted him in
absentia. And then, much, much later after the period for appeal had already expired, he was
arrested. And so he went straight to jail. He had lost his opportunity to appeal or to seek
reconsideration because he was outside, he was at large and was not, and did not submit himself
to the jurisdiction of the court. 'Yon. Ok. So that takes care of the constitutional rights of the
accused.
Habeas Corpus
We move on to Section 15 on habeas corpus. The privilege of the writ of habeas corpus
shall not be suspended except in cases of invasion or rebellion when public safety requires it.
The, the other grammifications of this, we will discuss when we take up the powers of the
President. For now, it is perhaps sufficient for us to see that the writ of habeas corpus is normally
available when there is an unlawful distrain or unlawful restraint. So that when a person is
detained by virtue of a warrant of arrest, even if the warrant of arrest is infirm, a writ of habeas
corpus will not lie to effect the release of the person being detained.
The Supreme Court has said that the proper remedy is to file a motion to quash the
warrant of arrest or even perhaps a motion to quash the criminal information, the charge itself.

90

The criminal charge. Not a petition for habeas corpus. And so, earlier we said, in the case of
Caunca vs. Salazar, the Supreme Court even found it proper to issue a writ of habeas corpus in
order that a domestic helper may be able to transfer to another employer because she felt that
she could not transfer in light of the moral duress being exerted upon her by the employer. The
writ of habeas corpus was also issued in the case of Gumabon we also mentioned this already
yesterday in the case of Gumabon, no, the other day. In the case of Gumabon vs. Director of
Prisons, where the prisoner had already served more than 12 years of imprisonment even as he
was convicted of the offense of rebellion complexed with murder, after People vs. Hernandez
declared that there was no such thing as rebellion complexed with murder and that the offense
committed was merely simple rebellion. Ok. Note that the writ of habeas corpus had also been
resorted to even in cases of custody. Custody over children, minors. I am not sure now exactly
what does the Civil Code, the Family Code provides. How old must the child be, up to what age
must a child not be separated from the mother? Seven. So a mother whose child has been taken
away from her, a child 7, below 7, her mother may go to court on a petition for habeas corpus to
demand that the child be returned to her, the custody over the child be given to her. In the case
class, I don't know, may tsismis ng konti pero, pero these are public figures din naman because of
their wealth.
We have the case of Bilmer vs. Ilusorio. On an attempt to compel Ilusorio to cohabit, to
live with the wife. Eh matanda na 'yung si Ilusorio noon at the time the case was filed. I
understand that ang mga, the heirs are quarrelling among themselves becaue of the magnitude
of the properties and lahat. Merong rumor, tsismis, tsismis sa labas na if the, if all of the heirs, all
of the heirs agree immediately to a compromise, each one would receive not less than 1 billion
pesos. Pinag-aawayan pa rin. Ayaw pa rin nila mag-ganyan. Isipin n'yo 'yan na ano. One billion
aayawan mo pa kasi gusto mo 2. Aywan ko lang. Anyway, that is tsismis. Thats is tsismis. We do
not know if that is true. Ang natutuwa lang d'yan 'yung mga abogado. Eventually after many,
many years, ang mga abogado ang bilyonaryo. 'Yung mga heirs hindi na. 'Yan ang mangyayari
d'yan. Anyway, so, the other aspects of ah, meron lang..
In the case of Dizon vs. Eduardo for example, in the case of Dizon vs. Eduardo, what
was involved was a case of what we know in law as des aparesidos. Des aparesidos are
disappeared persons. Here was a case where the relatives of two persons were arrested by the
military and eventually detained by the military, went to court on a petition for habeas corpus.
Because the petition was, was sufficient in form and substance, the writ of habeas corpus was
issued by the court and served on the general who was Commanding General of the Camp
where the two persons were allegedly detained. When the writ was returned, there was an
explanation there that the bodies of the two persons subject of the petition cannot be produced
before the court of the designated time and place because they had already been released at
some earlier date. The petitioner said if they were released at some earlier date, they would have
come to us, they would have come home. The fact that they did not come home is indicative of
their not having been released or perhaps they are no longer alive. The Supreme Court could not,
could not give any relief at all. Wala eh, hindi makita kung nasaan. Sinasabi ng Camp, released
na. In any event, even as the Supreme Court could not give any physical, any real relief to the
petitioners, the Supreme Court said, made a pronouncement that in cases like this, of
disappeared persons who at the outset were arrested and detained, the burden of proving that
they had been released devolves upon the Camp, the military or the police officers who were in
charged of the arrest and detention of the subjects, of the subjects. Then class, 'yung relation
between this and Martial Law, relation between this and the right to bail. And then of course the
duty of the President of the Philippines when the President issues proclamation suspending the
privilege, the effects of the proclamation and the grounds for suspension, and other than the
grounds for suspension, what happens when a petition for habeas corpus is filed in court covering
a person who may have been arrested or detained for allegedly, for an offense related to invasion
or for rebellion. Because as far as they are concerned, the privilege is deemed suspended during
the effectivity of the proclamation suspending the privilege of the writ of habeas corpus. The
procedure to be followed because the court will issue the writ nonetheless. The court will issue
the writ nonetheless and the writ will still have to be served on the officer who continues to detain
the person arrested and then however, the writ will have to be returned with a notation that the
person arrested was arrested for an offense relating to or in connection with the invasion or with
the rebellion, and that as to him or as to her the privilege of the writ of habeas corpus is
suspended. So we will discuss that when we discuss the so-called military powers of the
President. Move on to Section 16, Section 16 speedy disposition of cases. Just read that.
Because we had already discussed that. Although notice that Section 16 is really a broader right
than simply the right to speedy trial of a person facing criminal charges. As always, as also in the
case of speedy trial, note that not every delay is tantamount to a denial of the right to speedy
disposition of cases. Alright.
Right Against Self-Incrimination

91

Section 17 on the right against self-incrimination. Three basic areas. First, when is the
right against self-incrimination available? As a rule, as a rule, it is available and it may be invoked
only when the question calling for the incriminating answer is asked. So, in what cases may one
invoke the right against self-incrimination? In all cases, in civil cases, in criminal cases, in
administrative cases, you can invoke the right against self-incrimination. However, as we said, in
civil cases whether as a witness or as a party-plaintiff or party-defendant, you can invoke the right
against self-incrimination only when the question calling for the incriminating answer is asked.
However, in the case of the accused in a criminal case, he can refuse to take the witness
stand and no other inference shall be taken from his refusal to take the witness stand. The same
privilege applies to a respondent, a respondent who, respondent in an administrative case where
the nature of the administrative case is such that the respondent may be subjected to a penal
sanction. In two cases we have instances of administrative cases that could result in the
imposition of a penal sanction on the respondent.
In the case of Pascual vs. Board of Medical Examiners, where the doctor was
compelled to testify in an administrative investigation as a consequence of which, his license to
practice medicine was cancelled. The cancellation of the license to practice medicine was in the
nature of a penal sanction. Accordingly, the Supreme Court said having forced him to testify
despite his adamant, because he did not really want to testify, and because the resolution in the
administrative case was based precisely on his testimony, the cancellation of his license to
practice medicine was deemed illegal.
In the case of Cabal vs. Capunan, the Supreme Court said that the military officer who
was then being investigated for alleged ill-gotten wealth and who ran the risk of forfeiture of his
properties may, like the accused in a criminal case, refuse to testify and his refusal to testify shall
not give rise to an adverse presumption. However class, if the accused in a criminal case or the
respondent in any of these administrative cases where a penal sanction may be imposed upon
him testifies voluntarily, if he testifies then he can no longer refuse to answer questions on crossexamination. In either he can no longer invoke the right against self-incrimination during crossexamination. Except to questions which the answer, the answer to which will incriminate him of an
offense other than that for whish he is charged. Again, again, if he voluntarily testifies, he cannot
refuse to answer questions on cross-examination. Except questions, the answers to which will
incriminate him of an offense other than that for which he stands charged. So, he is the accused
in a criminal action for homicide, for murder. He testifies voluntarily. He can be subjected to crossexamination. But he can refuse to answer questions which will incriminate him of another offense
other than murder. So that will the prosecution for example in the cross-examination starts to ask
him questions and perhaps asks him a question, "did you not in fact rape the victim before you
killed her?" He can refuse to answer that and invoke the right against self-incrimination in that
respect because then he would be incriminated, the answer could incriminate him of an offense
other than for murder for which he stands or for which he is now being prosecuted. So 'yon.
The 2nd subject area on self-incrimination is the scope of the right against selfincrimination. Class, in Ali vs. Castro, the Supreme Court said the kernel of the right is against
testimonial compulsion only. Against testimonial compulsion. Accordingly class, accordingly,
fingerprinting, paraffin testing, photographing will not violate his right against self-incrimination. In
fact, in one relatively recent case, pagdating nya prior to custodial investigation, pagadating nya
sa police station marami na doon ang mga photographer. The Supreme Court said there was no
violation. Alright. When object evidence and not testimonial evidence is required of him, it is
possible then that there can be no violation of the right against self-incrimination. Parts of his
body may therefore be also subjected to presentation without violating self-incrimination. The hair,
samples of the hair of the accused, in fact, 'yung, we have a 2002 decision, People vs. Vallejo
which is reiterated in a 2004 decision on the use of DNA for purposes of conviction. Ano ang
ginawa don sa Vallejo? The victim appeared to have been a victim of both rape and murder. The
medico legal officers suaved the victim's vagina to get samples of semen, and from the semen
samples extracted the DNA. Thereafter, a sample, blood sample of the accused was taken and
from which was extracted the DNA of the accused. Pareho, the same. The Supreme Court
convicted the accused on the basis of DNA evidence. And the Supreme Court has said that this is
even more reliable, this is even more reliable than other evidence.
In a 2004 decision, bago, bagong-bago, a 2004 decision, this was reiterated. Another
conviction on the basis of DNA evidence. Of course class, 'yung mga lumang decision natin,
lumang decision, Tan Teng. US vs. Tan Teng. Ah, gonorrhea. Charged with rape. The accused
was made to submit to a medical examination to determine if he had gonorrhea because the
victim of the rape contracted gonorrhea after the rape. No, no self-incrimination.
In Villaflor vs. Summers, charged with adultery. The woman who was made, the
woman was subjected to a pregnancy test. No violation of the right against self-incrimination. In

92

Pranca, the, the accused wassubjected to ultraviolet rays to determine if he had under marked
money. No violation. However, in Beltran vs. Samson, the Supreme Court said the accused, the
accused who was accused of falsification could not be compelled to submit samples of his
handwriting for comparison with the signature appearing in the falsified document. The Supreme
Court said the furnishing of samples of one's handwriting is not a purely mechanical act. not a
purely mechanical act. It entails the use of intelligence. Ah. Well. Ok. Entails the use of
intelligence indeed. Kung ako ang pinagawa noon, sasadyain ko na ibahin ko ang aking
handwriting para sigurado na. That is what really entails intelligence. Sisiguruhin mo na. Ibahin
mo ang handwriting. Kaya ano eh. Kaya noong wala pang mga DNA test, wala pang ano, that
case of a mayor ng Laguna na ano. Oo, Sanchez, Sanchez. The trial was ongoing at that time I
was conducting a pre-bar lecture here
July 12-13, 2004
Involuntary Servitude
Exceptions
..them in as deputies and altogether they ride out in pursuit of the bandits. The group
organized by the sheriff is known as a posse this Is a concept precisely in a the case of U.S. vs.
Pompeia because of a, thats whereof a thievery in a community, ang mga ninanakaw lang
naman noon pag gabi mano, mga ganyan that is what was happening in the community. An
ordinance was passed by the community requiring able-bodied male inhabitants to render at least
1 night of ronda service, 1 night of ronda service, the local government ordinance contained a
penal clause making those who fail to render service liable.
On the issue on whether or not this ordinance is constitutional in that the ordinance in
effect would compel involuntary servitude of the male inhabitants, the Supreme Court said that
the ordinance is valid it is a valid exercise of a power known as posse comitatus. Note the
requirement for rendering a ronda service was for members of thetherather the male
inhabitants of the community to join the group and maybe conduct some kind of patrol in the
community during the night to prevent the stealing of chickens or ang ginagawa lang naman noon
talaga yung mga lalakeyung mga lalakeng gustong uminom walang pulutan maghahanap ng
manok na pwedeng yariin para may pulutan naman nung mga unang panahon ito, wala pa noon
ng mga nalalaman natin na mga, all these drugs and etc wala pa noon ng mga ito, hanggang
inuman lang yon noon and that is what we prefer you know inuman lang so this is an exception
precisely, recognized exception to the constitutional prohibition against involuntary servitude.
The sixth exception is the exercise of the patria potestas or parental authority over a
minor child, minor unemancipated child living with the parent, accordingly a child who is required
by the parent to sweep the floor of the house or to go buy ah vinegar or salt in the corner store
cannot claim that he has beenthat his constitutional right has been violated.
Prohibited Punishments
Alright so thats it. Section 19 on the prohibited punishments, note the basic principle in
constitutional law in so far as the punishment ah thats violates the constitution is concerned it
does no refer merely to the harshness or the severity of the penalty imposed but to the
disproportion between the act punished and the penalty imposed such as to shock the moral
sense of the community.
We have cases decided by the Supreme Court where the Supreme Court upheld the
constitutionality of the penalties for example in the Generics Act, the Supreme Court upheld the
penalties even those imposed on doctors not only in the amount of fines but also in having the
license of the practicing physician cancelled upon the 4 th infraction committed by a doctor. Of
course class, if I were the ah ah examiner, the only question I would really ask here is the
constitutionality of the death penalty and it would be in the nature of a compositionI ano
English composition ang pag-ano nito to ask you to justify the constitutionality of the death
penalty.
And so in People vs. Echegaray, the Supreme Court upheld the constitutionality of the
death penalty and said that this is necessary this is an exercise of the power of the State to
secure the State against threatened and actual evil posed by the heinous crime that are punished
with death under the Death Penalty Law. It is also instructive for us to see the Supreme Court
justifying its act in ordering a postponement of the execution of Echegaray, the Supreme Court
said that all 3 branches of government may validly exercise a power as it were that will result in
the postponement, delay or even the reduction of the penalty from death to some lower penalty,
and so the Supreme Court justified its action in postponing the execution of Echegaray on the
ground that the Court was merely exercising its jurisdiction over the person of the convict.

93

The Supreme Court went on to say that the President of the Philippines or the Executive
Department through the President in the exercise of the power of granting reprieves may also
postpone execution of the sentence and of course Congress, the Legislative body may reduce
the penalty by amending or repealing the Death Penalty law, in that sense, all 3 branches of
government have something to do with the reduction or postponement or the deferment of the
execution of the death sentence imposed by the Court on the convict. I do not know exactly
where we got this, I remember that when, when we were, siguro when we were in highschool we
had the wrong impression kasi at that time we, the death penalty was supposed to be executed,
to be carried-out through the electric chair, we all labored under the impression that when a death
convict sits on the electric chair and the switch is pulled-on and for one reason or another he
does not die then he is set free, ewan ko kung saan nakuha yon na ano, hindi ko maintindihan
talaga but that seemed to be the general impression at that time, of course that is not correct, we
have US jurisprudence on that matter and that it is not in the nature of cruel, unjust or degrading
or inhuman punishment for a death convict who escapes the electric chair because there was a
disconnection or electrical problem to be made to sit to the electric chair again at some later day.
A comparison given by the Supreme Court was merely that of fire breaking out at a
nearby cell. Ok so, ano pa ang case dyan, an old case involving the magna carta for public
school teachers where the Congress committed an error when it provided for penal provisions but
did not specify the penalties that will be imposed ands so this according to the Supreme Court
was an invalid delegation of legislative powers to the Courts because there no parameters set by
the Congress when it adopted or passed that particular penal provision in the magna carta for
public school teachers.
Non-imprisonment for Non-payment of Debt or Poll Tax
Alright Section 20, on non-imprisonment for non payment of debts or poll tax, Lozano vs.
Martinez in the matter of the constitutionality of Batas Pambansa Bilang 22. The more ah often
more often asked question, asked twice already in the last in the last 5 or 7 years,I think, is
People vs. Judge Nitafan on the constitutionality of the Trust Receipts Law, this has been asked
in the bar exams twice and of course the law is constitutional according to the Supreme Court
because what is punished is not non-payment of an obligation or a debt but is punished is the
loss or is the abuse of confidence or the deceit incident of the violation of the Trust Receipts Law.
The Supreme Court noted that the act, in fact, of violation is not punished as a crime against
property but a crime against public order, it is punished as estafa.
Double Jeopardy
Then after that, we go to double jeopardy, note that section 21 contains 2 sentences and
envisions 2 different situations when double jeopardy may be invoked. The first speaks of being
punished twice for the same offense, the second sentence speaks of being punished twice for the
same act. So the first speaks of the same offense, the second speaks of the same act.
Let us look at the second first because that is easier and the shorter subject, when an act
is punished both by a statute by a law and a conviction or acquittal under either shall be a bar to
another prosecution for the same act. Class, the ah best example here of course is that of
stealing electric power by placing jumpers for example which normally arewould be an act
punished both by an ordinance and by a general law, so once a person is charged the acquitted
or convicted of violating the ordinance he may no longer be prosecuted for violating the statute.
When we were new lawyers here in Manila, this was something that we had a lot of
occasion to avail of, invariably at that timer most of our friends would take the boat bound for the
province and so specially during the vacation time, we would very often go to the pier to send off
a lot of friends some of them, lady friends of course, some of them ano, but invariably, those of us
who were sending off friends would stay at the pier near where the boat was docked and we
would buy a bottle or 2 of Tanduay and drink from the cup, ganon lang, pakpinapasa-pasa,
ganyan ganyan, so the normal time for departure was about midnight so we would stay until the
boast leaves and then we would go home, on a number of occasion, not very many, maybe 2-3
times, on a number of occasions when I arrive at home I would receive a telephone call that 1 of
the friends I drank with was picked-up by the police, searched and a knife found on him, knife, he
would invariably be in one of the precinct near the pier so I would go there and immediately ask
the policeman to charge my friend with violation with the city ordinance instead of charging him
with violation of the Revised Penal Code, ordinance so ganun lang and then we would ask
immediately for the filing of the corresponding ano, so fiscal na magfi-file na kaagad ng criminal
information so that this can be scheduled for immediate, for immediate arraignment, before the
arraignment, noon, ewan ko ano pa ngayon ang set-up ng mga city courts ng MTCs dito kasi
noon when you go to a city court in the morning you would find that there are about 70 cases set
ah about 20 of them would be for arraignment then for hearing etc, so ang importante lang na

94

ma-calendar agad for arraignment, for arraignment, imagine there is 1 fiscal there and there are
70 cases that he will handle for a day, lintik, di lalapit ka na sa fiscal, fiscal eto akin number 8 dito
for arraignment, we are pleading guilty, pleading guilty to the ordinance, o sige mabuti-mabuti
pleading guilty, ok, eh fiscal magkano naman ang fine? kasi fine lang yon eh, fine o fine P50,
fiscal mahal naman masyado yan, sampu, anung sampu, sampu, beinte, o sige beinte fiscal
ok so yon at that time pag tinatawag ang kaso ni hndi na nagsasalita ang ano, tatayo pa lang ang
akusado, and abogado na ang magsasasalita, magsasabi ka lang na, I have already informed the
accused of the nature and casue of the accusations against him and after having been apprised
of the consequences of the plea, he now has decided to enter a plea of guilty, ayon pag sinabi mo
kaso gusto rin ng Judge dahil credit din nya yon disposition ng cases na marami,aba ganon
kaagad, where is the accused, your lawyer says you are pleading guilty, yes your honor, fiscal,
sabi nya, fiscal, recommended penalty P20 fine, ok P20 fine ayos na lapit ka don sa clerk, clerk
eto an gaming beinte pesos gawan mo na kami ng release para ayos na kami, o ayos na labas
na kami, inuman na naman, patay, na yon kasi iyon ang mga ano namin noon. So you notice, the
reason why we have to go to the police station immediately iswas that we wanted the charge to
bewe wanted to make sure that the charge would merely be of the violation of the ordinance
not thenot a charge for violating the Revised Penal Code, so iyon, because certainly madalingmadali kung sa ordinansa lang and that assures of course with the plea of guilt, that assures us
that no further prosecution will be made for violation of the national law or the Revised Penal
Code.
Alright, now when we speak of double jeopardy we really refer to the first sentence
involving no subsequent punishment for the same offense, memorize if you have not yet
memorized the requisites for double jeopardy under the first sentence. Therefirst there must be
a valid complaint or information, second the valid complaint or information must be filed before
the competent court, third the accused must have pleaded to the valid complaint or information
and fourth the accused must have been convicted or acquitted or the case dismissed or
otherwise terminated without the expressed consent of the accused.
On the matter of the first 3, first 3 requisites, first valid complaint or information, you
know that very well already, you know when an information or a complaint is valid, you have
mastered in ano, in Legal Forms, alright, then the court of competent jurisdiction. And so class
note that we have a number of decided cases by the Supreme Court where the case is filed with
a court without appropriate jurisdiction, the dismissal of that case by that court so that the case
may be re-filed in a court of competent jurisdiction will not give rise to double jeopardy because
the second element is not present, third that the accused must have pleaded to the complaint or
information that is a question of fact, that is a question of fact, so but again we have gone through
Article, ah section 14 and the need for the accused being informed of the nature and the cause of
the accusation against him, the reading of the information which will take the form of the reading
of the information and asking the accused how he pleads to the information, that is as we said a
question of fact.
The only real point of discussion is the last requisite, the accused is conviction if he is
convicted by the trial Court he may decide to either to serve the sentence or to appeal the
judgment of conviction, when the appealany appeal in the judgment of conviction the of course
he is not yet a convicted until after affirmation of the judgment of conviction by the appellate court.
When the appellate court affirms on the judgment of conviction and the judgment becomes final
then we speak of the accused having been convicted. Second he is acquitted, if he is acquitted,
note a judgment of acquittal under ordinary circumstance is immediately executory so once a
judgment of acquittal is rendered immediately double jeopardy will set in as a matter of course, as
a matter of course under ordinary circumstances because the acquittal maybe attended by grave
abuse of discretion and therefore allowing the prosecution an opportunity to go up to a higher
court asking the higher to review the judgment of conviction which may be challenged as grave
abuse of discretion but that is of course ordinarily an acquittal and a judgment of acquittal is
immediately executory so your double jeopardy principle applies immediately after the judgment
is rendered.
The third situation contemplated is, where the case is terminated, is dismissed or
otherwise terminated without the expressed consent of the accused, it is important that the
dismissal be a final or a permanent dismissal because as you very well know there may be a
provisional dismissal by the Court. Class, in the normal course of things, after 2 or 3 hearings
scheduled hearing dates when the witnesses against the accused do not appear the lawyer for
the accused normally prays for the dismissal of the criminal case on the ground that the delay is a
violation against the right of the accused to a speedy trial, but normally the Court will not agree,
because normally the fiscal or the prosecutor will object, will object. Dalawa pa lang or tatlo kung
minsan nag-o-object pa ang fiscal but you see pwede kang makiusap sa fiscal, fiscal matagal na
ito tignan mo,ang return ng subpoena hindi naman ano wala na raw, hindi na raw makita kung
nasaan itong mga testigo mo, sasabihin ng fiscal alright I will agree to provisional dismissal, so

95

what do you do, you agree also para sigurado makalabas kaagad yung kliyente mo, you agree
immediately when the 2 of you already agreed as matter of course maliban lang kung yung judge
medyo may hinihintay pang darating na hindi pa dumarating, ok pero normally the judge will
grant, sige provisional dismissal.
I understand that under the Revised Rules on Criminal Procedure there is now a period
within which a revival of the case may be made, beyond which the order of provisional dismissal
becomes permanent, I understand that a period of 2 years in the case of People vs. Panfilo
Lacson, the Supreme Court, Panfilo Lacson, the Supreme Court said that the rule providing for
this 2 year cut-off period should be interpreted prospectively should be applied prospectively. I
understand that this case, rather this rule took effect in December 2000 and so 2 years from 2000
would be December 2002 and the revival of the cases against was sometime in June of 2001,
alright so iyon. This has to be a permanent dismissal, a permanent dismissal, so termination,
dismissal or termination of the case without the expressed consent of the accused because
where the accused gives consent as a rule, then you have only some kind of provisional
dismissal making it possible the re-filing of the case or the revival of the case itself. The case
maybe revived in the very court within 2 years precisely or the dismissal of the action may result
eventually in the filing of a new case. Alright, and so as a rule, whenever the accused consents to
the dismissal of the criminal action, there is no double jeopardy except in 2 cases; 1, when the
case is dismissed on motion of the accused because of insufficiency of evidence, as you very
well know from your mastery of criminal procedure, you do not file a motion to dismiss what you
file is pleading denominated demurrer to evidence after the prosecution shall have rested its
case, you file a demurrer to evidence and in order to safeguard the interest of your client, you do
not immediately file a demurrer to evidence, you file a motion for leave of Court to file a demurrer
to evidence even as you own demurrer to evidence is already attached to your motion so that in
the event that the demurrer to evidence is denied by the trial court by virtue of your having
secured prior leave of court you may therefore still present counter veiling evidence or evidence
for the accused, otherwise, if done without leave of court, you lose your right to present evidence.
Alright, ok, so if the trail court grants the demurrer to evidence then the grant to demurrer to
evidence is in the nature of an acquittal and therefore it will be immediately executory and
therefore your double jeopardy principle will immediately set in. Ano yung case involving the
Commission on Elections, the Commission on Elections filed a petition for certiorari, ganito, the
Commission on Elections in the exercise of constitutional powers to investigate violations of the
election laws, conducted a preliminary investigation and found probable cause to file a criminal
information against an incumbent Congressman in Leyte, incumbent at that time, so ah, the
COMELEC also decided to directly conduct the prosecution of the case and so after the
COMELEC had presented itshad rested its case, the Congressman filed a demurrer to
evidence coupled of course with a motion for leave, etc. The trial court denied the demurrer to
evidence, the congressman went to the Court of Appeals on the denial to demurrer to evidence,
the Court of appeals granted the demurrer, the Commission of Elections went up to the Supreme
Court on a petition for certiorari alleging that the Court of Appeals has committed grave abuse of
discretion in granting the demurrer to evidence, the Supreme Court said that the grant to
demurrer of evidence by the Court of Appeals has already the effect of acquittal, the petition for
certiorari filed by the Commission on Elections therefore, already violated the rule against double
jeopardy and may therefore be abated by precisely invoking double jeopardy.
Alright, the other instance when the dismissal of a criminal case will give rise to double
jeopardy even if made at the instance of the accused is when the case is dismissed on the
ground that there has been a delay in the trial of the case, therefore violating the constitutional
right of the accused to speedy trial but again here class consider all principles relative to speedy
trial not just any delay will give rise to a violation to the right to speedy trial, yes we have a
relatively recent case, hindi ko na matandaan ang mga pangalan eh, I think it is a 2003 decision
where the Supreme Court actually reversed the decision of a trial court. The court, no, for 2
scheduled hearing dates the witnesses for the prosecution did not appear on that basis the Court
dismissed the criminal case permanently ostensively because of the violation of the right of the
accused to speedy trial. The Supreme Court said no, that did not, that did not yet measure up to
what is considered denial of the right to speedy trial. And so the Supreme Court in fact said the
trial court committed grave abuse of discretion, it was without jurisdiction to have dismissed the
criminal case on the ground of denial of the right of the accused to speedy trial.
So class, in when the dismissal is made on either of the 2 grounds, the result of the
dismissal of the action is an acquittal and therefore will give rise to double jeopardy. Now, when
all the 4 requisites are present, all the 4 requisites are present, then double jeopardy will set in,
what does that mean, no subsequent prosecution for the same offense may be made against the
same accused, no subsequent prosecution for the same offense, what do we mean by the same
offense, what are the offense covered by that under the same offense? first the identical
offense, identical offense an action for homicide dismissed then another action for homicide
arising form the same set of facts, an attempt to commit or a frustration thereof, charged with

96

homicide acquitted, he may not be further charged for attempted homicide or frustrated homicide,
neither can he be subsequently charged of an offense that necessarily includes or is necessary
included in the first offense charged, so all of these are barred after double jeopardy shall have
set in except when the doctrine of supervening event may be validly invoked. Under the doctrine
of supervening event, a subsequent prosecution for the same offense may still lie and will not be
abated by the rule on double jeopardy if in any one of the following cases: the graver offense
developed due to supervening facts arising out of the same act or omission, X stabbed Y and the
stab wound did not appear to be fatal so he was charged with serious physical injuries instead of
attempted or frustrated homicide, serious physical injuries while undergoing treatment,
unfortunately, the wound became infected and the infection spread and the fellow died, may a
corresponding or a subsequent for the same for homicide lie? Yes. Ah, second situation, the facts
constituting the graver offense arose or were discovered only after the filing of the first offense, of
the first criminal complaint or information that is, discovered, o kasi ang aking dating example
dapat na ano eh, A stabbed B 72 times, the fiscal filed an information for slight physical injuries to
which the defendant, the accused immediately pleaded guilty and for which he was sentenced a
person term of 10 days, after he came out yon.
The third situation is when the accused pleads to a lesser offense without the consent of
the prosecutor and or the offended party then you have the doctrine of supervening event and a
subsequent prosecution may lie against the accused. You know sometimes ah when I was a
when I was a law student and I would drink with some friends who were not law students
sometimes you find that a number of them, a number of them have, a number of your friends do
think also and ano ah alam nyo nung one of the one of the question I still recall upto now which
one of my friends asked when I was a law student was something like this, A was charged for
killing B because they were last seen together and B simply disappeared and could no longer be
found, circumstantial evidence pointed to the guilt of A, ok so he was sentenced to 20 years of
prison, after serving 20 years he now goes out of prison and the first person he sees is B and he
tell himself, 20 years akong naghirap sa bilangguan sa pagpatay sayo, buhay ka pa pala,
papatayin na kita pinatay nya ngayon. Pinatay nya ngayon, charged with killing B can he invoke
double jeopardy, considering the fact that he was charged under a valid complaint or information
for before a court of competent jurisdiction to which he pleaded and he was convicted of the
offense of homicide, he is now charged again of homicide for killing the very same person for
which he had already served sentence, ano, maganda siguro ilagay sa bar exam yon ah, iyon,
iyon ang sinasabi ko kung minsan that is why class, you do not disparage yung mga inuman dahil
kung minsan nakakuha ka ng mga ganyan, wag lang masyadong madalas. Alright, then we have
the matter of appeal by the prosecution, the prosecution may appeal an order of this acquittal or
an order of dismissal of course when there is gravean allegation of grave abuse of discretion
amounting to lack of jurisdiction or there was a denial of due process, due process was denied
the prosecution such as when the prosecution was prevented from presenting evidence or of
course when the order of dismissal or the judgment of acquittal is made capriciously by the judge,
in such cases of course, then the prosecution may appeal the judgment of acquittal or the order
of dismissal and there would be no double jeopardy. Other principles there would probably have
to refer to what is purely procedural.
Ex post Facto Law and Bill of Attainder
Finally class, section 22 on ex post facto law or a bill of attainder, confronted with a
problem we have to do(Side B)which are the law must be penal in character, second it must
be retroactive in application and third is it must work to the disadvantage to the accused or it must
be disadvantageous to the accused.
Penal in character, that is the only difficult thing to determine class, because what may
appear to be a penal is actually only a procedural rule, a procedural rule, kamukha ngayon, the
Supreme Court has declared only the otherday that all cases decided byall criminal cases
decided by the RTC were a judgment of conviction had been rendered, imposing the death
penalty must now be reviewed by the Court of Appeals before review by the Supreme Court is
made, hindi ko rin ito maintindihan, pero tama yon, tama na rin yon na ibigay na rin sa Court of
Appeals, marami na rin divisions,dagdag na divisions sa Court of appeals in fact there will be
divisions that will be assigned to Cebu, divisions that will be assigned to Cagayan de Oro in the
Court of Appeals but dont you see class that the Supreme Court when it does this, when it does
this always says, when it does this, the Supreme Court always says that this is only procedural,
this is not ano, walang problema dito dahil procedural lang ito. Imagine for example even as
article 9a says that from decisions of the 3 constitutional commissions one goes to the Supreme
Court on certiorari, the Supreme Court has ah actually taken his hands off appeals from the Civil
Service Commission kasi yon ang pinakamarami ngayon COMELEC na lang COMELEC at COA
diretso sa kanila ang Civil Service Commission Court of appeals na rin, in time I think they will
also yield this toetong COMELEC and COA iyi-yield na din nila sa anoang NLRC paano
Supreme Court pa rinCourt of Appeals na anoeto ngayon even judgment involving the
impositions involving the death penalty ibabba na rin nila sa Court of Appeals, this is ahyou

97

know this is a justification class for anojustification for amending the constitution maybe our
Supreme Court should be reduced in composition and it should only take up constitutional issues,
yon na lang, ang lahat ng iba, dito na sa baba para.
Anyway, that is what are looking at, note for example that a treaty for extradition is not in
the nature of a law, not in the nature of a penal law and so an extradition treaty, even if entered,
rather maybe given retroactive effect in that offenses covered by the extradition treaty even if
committed prior to the signing of the treaty can be covered by the treaty of extradition, and the
Supreme Court said that a treaty of extradition is not a penal law therefore you cannot say that a
treaty of extradition given retroactive effect is ais an ex post facto law. So yon ang anodoon
lang medyo mahirap-hirap ng konti because again factual issue na ang dalawa, is it retroactive in
application that is a question fact because either it is retroactive or prospective, then does it work
to the disadvantage of the accused again you can see that easily, what is difficult to see is
whether or what is in issue is a penal law or merely a procedural rule, but when you have
identified them already and that it is in the nature of a penal law then you can easily characterize
and\ ex post facto law.
On the otherhand a bill of attainder even if it is defined as a legislative act that inflicts
punishment without judicial trial what we are saying here is that a bill of attainder is a law that
already imputes guilt without need of any further trial. A bill of attainder normally is a lawis a law
which identifies or makes it easy to identify the persons who are made liable under that law, it is
retroactive also in application n that what is punished or those who are punished by the law are
already identified for having committed the act that is punished under the law, if for example
Congress were to re-pass the anti-subversion law, and it is provides therein that Jose Ma.Sison
and Father Jalandoni are guilty of the crime of the subversion punished in the law itself, that
would clearly be a bill of attainder because it would identify the person or persons made liable
under the law even if Jalandoni and Jose Ma. Sison are not named specifically if the law for
example makes reference to Filipinos expatriate Filipinos in the Netherlands who have been
funding whatever subversion activities in the Philippines or providing inspiration to those who
have been conducting subversive activities in the Philippines that would be in the nature of a bill
of attainder. If Jose Ma, Sison is prosecuted under such a law it does not mean that Jose
Ma.Sison is arrested, that doesnt mean that when arrested he would go to jail immediately and
wala ng trial, that is notthat will not happen, magtri-trial pa before the law before the law, ok
pero wala ng problema sa trial dahil if the law itself says that Jose Ma. Sison is guilty then wala
ng problema tatawagin na lang, pag tawag ng case, pag tayo ng prosecutor, your honor may I
ask the accused to please stand up and tell this honorable court his name, pag sabi Jose Ma.
Sison sabi agad ng prosecutor, the prosecution rests, ayon kasi ayan na eh, it is not that it is the
law that sentences there will still be some kind of proceeding for the sentencing under a bill of
attainder but what ah makes a bill of attainder constitutionally infirmed is that a bill of attainder
which retroacts in application identifies or makes it easy to identify the people who are already
made liable under the law.
That is why in that case of People of the Philippines vs. Judge Simeon Ferrer when
sino yung ano pumalit kay anosi Nilo Tayag, Nilo Tayag was captured and then charged for
subversion violation of the anti-subversion law and he was charged before the appropriate court
in Tarlac, Nilo Tayag filed a motion to quash the criminal information on the ground that the antisubversion law was both an ex post facto law and a bill of attainder. The presiding judge ion the
Tarlac court at that time was Judge Someon Ferrer, Judge Simoen Ferrer was the brother of
Jaime Ferrer former COMELEC chairmen. Judge Simeon Ferrer was a scholarI dont if he is
still alive now, but even then of course we knew him as a scholar, we knew him as a very sober
minded judge but judge Ferrer, Judge Ferrer actually granted the motion to quash and said that
the anti-subversion law was both an ex post facto law and a bill of attainder in the matter
particularly because he said the law punishes knowing membership in the communist party of the
Philippines, elsewhere in the law, the Communist Party of the Philippines is outlawed as a
subversion organization.
The Supreme Court when it reversed Judge Ferrer had to do a lot of backtracking when it
said the use of the Communist party of the Philippines in the law was only for definitional
purposes, so iyon pero maganda ang decision ni Judge Ferrer doon when he declared it a bill of
attainder and an expost facto law. So that takes care of the Bill of Rights.

98

CITIZENSHIP
General Principles
Alright, having finished on Article III yesterday, we move on to Article IV on citizenship.
Citizenship is membership ion a democratic community, in International law, membership in any
community is known a s nationality, of course nationals are members of a democratic or a
community of a political community which is more or less political in character, citizens are
supposed to be who reside, who are members of a democratic community.
The ordinary modes of acquiring nationality or citizenship are by birth and by
naturalization certain jurisdictions recognize marriage as a mode of acquiring citizenship or
nationality.
Now there are 2 doctrines in acquisition of citizenship through birth and these are the
doctrine of jus sanguinis which means that a child follows the citizenship of his parents and jus
soli which says that a child acquires the citizenship of the State where he is born, in Philippine
history we experience a period in Philippine History when jus soli and not only jus sangguinis
was recognized as a mode although it has really been jus sanguinis all the way, from the
Philippine Bill of 1902 in fact after December 10, 1898, when Spain ceded the Philippine islands
to the United States there was a period of 18 months within which the inhabitants of the Philippine
islands who were then Spanish subjects could retain Spanish nationality by simply executing an
option in writing to retain Spanish nationality, those who did not do so became Filipino citizens,
the period was from April 11, 1899 until October 11, 1900 so during this period of 18 months the
inhabitants of the Philippine islands could retain Spanish nationality if they wanted to by making
an option in writing that they would have wanted to retain Spanish nationality.
Class in the case of Valiez vs. Commission on Elections where a lady Rosalyn
Evasco was who, who was born to Australia to a Filipino father and an Australian mother came to
the Philippines armed with an Australian passport, she obtained an alien certificate of registration
and then during her stay in the Philippines she decided to run on public office, on the issue of
whether or not she was a citizen of the Philippines the Supreme Court traced her ancestry to her
father who in turn was the was the sun of an inhabitant of the Philippine islands during the period
from ah April 11, 1899 to October 11, 1900,it appears then that there was no option to retain
Spanish nationally and so Rosalyns father was a Filipino, Rosalyn being the daughter of a
Filipino was likewise a Filipino citizen.
Now, by virtue of judicial decisions the principle of jus soli was recognized, recognized by
the Courts anyway this recognition however, was recognition of the principle of jus soli during the
American occupation which means prior to the 1935 Constitution or prior to the adoption of the
1935 constitution, prior to the establishment of the Philippine Commonwealth. The Supreme
Court in a long line of cases starting with Roa vs. Collector of Customs said those born in the
Philippines during the American occupation were Filipino citizens by virtue of the jus soli principle,
the Roa doctrine was abandoned in Tan Chong vs. Secretary of Labor but then it was adopted
again in the case of Talarok vs. Uy and finally repudiated in 1959 in the case of Teotimo
Rodriguez Tio Tiam vs. Republic, with the repudiation of the principle of jus soli as a mode of
acquiring Filipino citizenship, the problem arose, what happened to those subjects of the many
cases decide by the Supreme Court when the Supreme Court said that the individuals named
therein were Filipino citizens by virtue of the application of the jus soli principle, the Supreme itself
recognized this dilemma and said that these Filipino these people will be considered as Filipino
citizens and since the jus soli principle was repudiated, the Court itself could not say that the
reason for having acquired Filipino citizenship was the jus soli doctrine, however, the Court said
that by virtue of the principle of res judicata, since the decisions of the Court had acquired res
judicata effect these people has to be considered as Filipino citizens.
Natural Born Citizen
Alright, before we go to Section 1 on the enumeration of the citizens of the Philippines
under the 1987 Constitution, let us go to the other sections for example let us take up Section 2
on the definition of a natural-born citizen, a natural-born citizen of the Philippines is defined as
one who is a citizen of the Philippines from birth and who does not have perform an act in order
to acquire or perfect his or her Filipino citizenship, however class, and it is only the 1987
Constitution that says this, the Constitution adds one sentence to that and says those who elect
Filipino citizens shall be deemed natural-born citizens of the Philippines. This sentence became
necessary in order to equalize the status of children born to Filipino mothers before January 17,
1973 and those born on January 17 and thereafter, you see those born before January 17, 1973,

99

what is the significance of January 17,1973? January 17, 1973 is the date of the effectivity of the
1973 Constitution, under the 1973 Constitution children born to Filipino fathers or Filipino mothers
were considered immediately Filipino citizens, they were therefore natural-born Filipino citizens
according to the 1973 Constitution but a child born before January 17, 1973 pursuant to the 1935
Constitution because the 1973 Constitution on citizenship was to be construed only prospectively,
any child born before January 17, 1973 to an alien father and a Filipino mother had to elect
Filipino citizenship upon reaching the age of majority pursuant to the 1935 constitution, so tignan
nyo, and since the definition of a natural-born citizen is one who is a citizen of the Philippines
form birth and does and one who does not have to perform an action order to acquire or perfect
his Filipino citizenship, the fact that X had to elect Filipino citizenship in order to acquire Filipino
citizenship, he therefore had to perform an act, therefore under the 1935 constitution he would
not be considered a Filipino,a natural-born Filipino citizen.
On the otherhand, Y was born on January 17, maybe 1 day later than X would born to a
Filipino mother and an alien father would be already a natural-born Filipino citizen, you can see
the difference class, imagine if X was born on January 16 and Y was born on January 17, X
would not be a natural-born citizen while Y would be a natural born citizen of the Philippines, Y
would be entitled to run for President of the Philippines while X would not be qualified because he
is not a natural-born citizen of the Philippines.
So many years after this when X would have wanted to run for President sasabihin hindi
ka natural borrn because you have to perform an act in order to acquire or perfect Filipino
citizenship, sisisihin nya ngayon ang nanay nya, nanay, lintik naman kung hindi ka, if you only
held your breath for 24-hours I would be eligible to be elected president of the Philippines. And
so to equalize the status precisely of these and these people under the 1987 Constitution it is
now provided that those who elect Filipino citizenship because they were born before January
17,1973 to Filipino mothers will also be deemed natural-born citizens of the Philippines.
Alright, then the matter of Filipino women married to aliens, the 1973 as well as the 1987
Constitution provides that a Filipino woman who married an alien shall not lose Filipino
citizenship unless by her act or omission she is deemed to have renounced Filipino citizenship,
why? Because prior to January 17, 1973, again pursuant to Republic Act 63, one of the modes of
losing Filipino citizenship under the 35 Constitution was marriage when a Filipino woman marries
an alien under whose laws the woman acquires her husbands citizenship then the Filipino
woman losses Filipino citizenship, madalas ito noon, under the citizenship laws of the Republic of
China-Taiwan at that time we recognize Taiwan as China, under the laws of the Republic of
China-Taiwan, any alien woman who marries a Chinese citizen automatically becomes a
Chinese, and so in the Philippines a Filipino woman who marries a Chinese becomes Chinese
and because under the laws of her husband she became a Chinese and acquire the citizenship pf
her husband, she automatically lost Filipino citizenship. This was very disadvantageous and
unfair to Filipino women, Filipino women, you can see the bias against women early on, of course
later the women assumed a very dominant role and upto now, you have a president who is a
woman and so iyan. Anyway, ito ganito, in the provinces, in the provinces this happenedthis
happened so many times. isang maliit na bayan, ang medyo mayaman-yaman ng konti yung
Intsik na may tindahan, may tindahan doon sa bayan na yon, syempre eh, siya lang ag medyo
mayaman sa bayan na iyon,naghahanap siya ng mapapangasawa, aba yung teacher naman
maganda, teacher na Pilipina, so niligawan niya medyo ang teacher Ok na rin naman tutal ang
Intsik ay ok na rin naman, so they agreed to ano, ok na sila, the Chinaman of course because he
has honorable intentions proposes marriage the relatives of the woman tell her, no do not get
married because if you get married you will become a Chinese that means you will lose Filipino
citizenship you cannot even teach in public schools anymore, matatanggal ka sa trabaho kasi
hindi ka Filipino citizen, and mga anak mo hindi Filipino citizen, they will still have to elect Filipino
citizenship later, mabuti pa wag na kayong magpakasal, magsama na lang kayo, so total
honorable naman ang intentions ng Intsik sayo, siguron naman maski naman hindi kayo kasal ok
lang namna total alam naman ng buong bayan na kayo ang mag-asawa so agoon nga, the
Chinaman also consents, ok sige, so after so they co-habit and then the Filipino woman gets
married and somebody says she is guilty of immorality, natanggal din siya sa trabaho, o di di ano,
very very biased against women, so ganun nga.
In the 1973 Constitution, the framers of the 1973 Constitution decide that this was an
unfair provision for Filipino women and so even then they already provided in the 73 constitution
that marriage of Filipino woman to an alien shall not result into the loss of Filipino citizenship, that
same provision is repeated in the 1987 Constitution.
Dual Allegiance
Alright, then of course the matter of dual allegiance, the Constitution provides that dual
allegiance of citizens is inimical to the national interest an shall be dealt with by law, this is a

100

policy statement, that dual allegiance is inimical to the national interest even if no law hd not been
passed this law of courses is already a policy statement, but in the elections of 1988 in the local
elections of 1988 for example, in the province of Cebu, Lito Osmena was elected governor, there
was no question about the fact that Lito Osmena possesses dual citizenship, dual citizenship, he
is both an American and a Filipino, and so after his election his assumption as governor of Cebu,
a petition to disqualify him was filed with the Commission on Elections on the ground that he had
dual citizenship.
The case went up to the Supreme Court, was decided in 1990, the case of Aznar vs.
Commission on Elections, and the Supreme Court said the constitution speaks of law
supposed to deal with this ah dual allegiance since there was no yet law and of courses no
question that Lito Osmena was not a Filipino citizen then there is no ground to disqualify him as
governor of the Province of Cebu, one year after, one year after the decision of Aznar, Congress
passed the Local Government Code, under section 40 of the local government Code, one of the
disqualifications for candidates to elective local public office is dual citizenship, dual citizenship.
Apparently, in 1992, Lito Osmena did not run anymore for re-election as provincial governor of
Cebu he run instead for vice-president, he was vice-presidential candidate of Fidel V. Ramos but
he run against a concrete wall called Erap Estrada and he lost to Erap Estrada.
Alright, so section 40 remained although section 40 do not speak of dual allegiance it
spoke of dual citizenshipdual citizenship, ok so finally. The Supreme Court had an opportunity
to rule on what dual citizenship under section 40 of the local government code means in the
celebrated case of Mercado vs. Edu Manzano, of course you know Edu Manzano, he was the
first husband of Vilma Santos and that was of course, after that he also had a sino yon of course
Vilma Santos is a different story altogether noh so ok. There is again no question that Edu
Manzano is a dual citizen, he possesses dual citizenship, both American and Filipino citizenship,
and so he run for vice-mayor for the city of Makati, was elected even before he was proclaimed
elected there was already this disqualification case against him, because precisely he was a dual
citizen and Section 40 of the Local Government Code spoke of dual citizenship as a
disqualification.
The Supreme Court said that dual citizenship in section 40 of the Local government Code
should be understood to mean dual allegiance, and dual allegiance would mean that a person
owes allegiance to independent sovereign states and dual allegiance pre-supposes
voluntariness, allegiance given voluntarily by the individual not cases where by virtue of
circumstances beyond the control of the individual, the individual possesses 2 or more
nationalities.
A child born in Germany to an American father and a Filipino mother, today would be
born with 3 nationalities, he would be an American because he follows the Citizenship of his
father who is an American, he would be a Filipino because he also acquires the citizenship of his
mother, a Filipino, he would be a German, because in Germany, they also adopt and apply the jus
soli principle having been born in Germany.
Alright, the Supreme Court recognize this situation such as this, it is not the fault of the
child, the child did not know anything about this and he could not make any protest about this, so
if because of the involuntary application of laws, on the person he has 2 or more nationalities, that
is not dual allegiance, sabi ng Supreme Court. So when we speak of dual citizenship in section
40 that should be read or interpreted to mean dual allegiance which of course requires
voluntariness on the part of the individual to have or to pledge allegiance to 2 or more sovereign
states, accordingly, the Supreme Court said that Manzano was not to be disqualified because
there was no showing that despite his dual citizenship he had in fact dual allegiance and there is
this statement made by the Court which was reiterated is Valiez. The Supreme Court said that it is
enough for a person with dual citizenship to divest himself of one by electing Filipino citizenship
and the Supreme Court went on and said when an individual files a certificate of candidacy, the
filing of the certificate of candidacy is effectively election of Filipino citizenship because the
certificate of candidacy contains a statement to which the candidate swears that all the
information contained in the certificate are truethat that he pledges, that he shall support the
constitution and the laws of the Philippines and that he owes allegiance to the Philippines, that
filing of the certificate of candidacy is election of Filipino citizenship and therefore divesture,
divesture of any other citizenship and so there can be no dual or multiple citizenship in the first
place to speak of.
And so in the case of Valiez vs. Commission on Elections, Rosalyn Evasco who was
declared a Filipino, also possess dual citizenship because she also was an Australian having
been born in Australia and Australia follows the jus soli principle, however, when she file her
certificate of candidacy following the ruling of Manzano, the Supreme Court said she also elected
Filipino citizenship, effectively divesting herself of Australian nationality accordingly she is not

101

disqualified for local public office. Alright, the class, this principle found in a number of decision
early decision of Supreme Court, that a question of citizenship cannot be raise in a collateral
proceeding it has to be raise din a direct proceeding. Now, in remedial law, you know that, what
does this mean, you raise the issue of citizenship in a direct proceeding, that means that the
proceeding itself must be an action precisely to contest this citizenship. Where the issue of
citizenship is raised collaterally as a collateral issue to a main issue yes a main issue in the case
the Supreme Court has said several times that this cannot be done. Finally,the ruling in Zita Ngo
Burca vs Republic.
July 13, 2004
The rule on res judicata, class example lang tayo, A files a certificate of candidacy B who
is another candidate for that position files a petition to disqualify A, the petition is filed with the
Commission on Elections prior to the elections. The Commission on Elections decides to
disqualify, disqualify a, A does not even go up to the Supreme Court anymore or or ganito na lang
the COMELEC says A is not disqualified, A is not disqualified, he is a Filipino citizen the
Commission on Elections then is an administrative body making a finding on the citizenship of A,
suppose B does not go up to the Supreme Court anymore, does not go up to the Supreme Court
anymore because B says tatalunin ko naman sa eleksyon yan Pilipino man o hindi yan,kayangkaya ko yan, hindi na siya umakyat sa Supreme Court, ok so there is a decision of the
Commission on Elections on that matter. Now one year thereafter A files a petition with the
Bureau of landsah the Land Management Bureau for a free patent for example over land,
alienable land of the public domain, B opposes the application with the Bureau of Land
Management opposes saying that A is not qualified for the free patent because is not a Filipino
citizen, can A abate the opposition filed by B on the ground that there has already been a decision
in the Commission on Elections that he is a Filipino citizen in a case filed by B against him for
disqualification, explain your answer,1% yon.
Any administrative finding of citizenship will not acquire res judicata or preclusive effect
that is what Zita Ngo Burca all about, will not acquire res judicata effect unless 3 conditions are
satisfied: first, the issue of citizenship is raised as a material issue in an administrative or a
judicial proceeding and subjected to a full hearing; second, the Solicitor General or his
representatives participates in the proceedings; and third, the finding whether by administrative
agency or judicial body is affirmed by the Court. It is in that sense then class that an
administrative determination of Filipino citizenship never becomes final and never acquires res
judicata effect.
Citizens of the Philippines
Alright, we go to the citizens of the Philippines, the first of these is those who are citizens
of the Philippines at the time of the adoption of the 1987 Constitution, who are the citizens of the
Philippines at the time of the adoption of the 1987 constitution? We go back in time and then
maybe all the way to 1898, class, ewan ko kung sabagay the case of American colonialism,
collies of the US were never really granted mass naturalization effects noh kasi there are
instances where an entire territory that is ceded to a State ah rather the inhabitants of the entire
territory ceded to a State acquire the citizenship of the acquiring State pero dito sa atin hindi
nangyari iyon, we were Spanish nationals in 1898 but when the islands were ceded to America
those who he did not right their option to retain Spanish nationality did not become Americans
they eventually Filipinos but they did not become Americans maski America, wala pang
Philippines noon eh, o ewan ko kung mabuti yon eh, isipin nyo kung if we became Americans
may winter na dito sa atin, mayroong anomay snow na sana mayroong ganyan,isipin nyo yan
ewan ko lang kasi but gannon din naman nangyari sa other colonies of the US siguro kamukha
ng Guam hindi rin naman sila naging US ngayon lang sila US citizens I think even the people in
Hawaii.
Anyway, anyway that is, we go all the way back class to the Philippine Bill of 1902, the
Jones Law of 1916. The Philippine Bill of 1902 contained a re-statement of that principle that
those who did who did no opt in writing to retain Spanish nationality form April 11, 1899 to
October 11, 1900 eventually became citizens. Under the Jones law of 1916, mayroon ding restatement of that portion of the law and then of course the 1935 constitution because the 1935
Constitution contained a provision that among the citizens of the Philippine under the 35
Constitution were those who are citizens of the Philippines at the time of the adoption of the
Constitution. Under the Jones law, a Philippine Legislature was established it was in effect the
lower house of a bicameral congress, the Philippine Commission constituted the Upper house
and we had a governor general who now of course who is now of course President may pangalan
ano, ok.
Even during these period from 1916 to 1935 there was already passed a naturalization
law and so those who were citizens of the Philippines by virtue of the Philippine Bill of 1902 by

102

virtue of Jones law of 1916 those who were naturalized under the naturalization law passed by
the Philippine Legislature set up by the Jones law of 1916, their children and other descendants
were all Filipino citizens already at the time of the adoption of the 1935 constitution.
And then under the 1935 constitution, those whose fathers were citizens of the
Philippines of course were also to become Filipino citizens then those born to Filipino mother who
upon reaching the age of majority elect Filipino citizenship yung election na dito sa 35
constitution. Then of course class those who were benefited by the Roa doctrine even when the
Roa decision even if the Roa decision as well as subsequent decision all the way to Talaroc vs.
Uy were really, promulgated by the Supreme Court under the ages of the Philippine Constitution,
dito na yon between 1935 and 1959.
And then finally class, there is a class of citizens under the 35 Constitution that is not
found in any of the other Philippine Constitutions, the class of citizens who became citizens of the
Philippines by virtue of what is called the Caram provision in the 1935 Constitution. Class history,
1934 the US Congress passed the Tydings-McDuffie law, under the Tydings-McDuffie law,
authority was granted for the Philippines to elect delegates to a constitutional convention who
then draft what was to become the 1935 constitution, so an election of delegates was held in the
provinces and the constitutional convention met and of course Philippine history tells us that it
was Claro M. Recto who became president of that constitutional convention, ok.
During the last days of the convention when they were finalizing the whole thing already
and they were about to vote on the individual articles, they went through the article on citizenship
only to discover that the article on citizenship that was recommended by the Committee on
citizenship in the constitutional convention did not include as Filipino citizens all the delegates to
the convention, there was one delegate to the convention who would not have been a Filipino
citizen if no special provision was to be included in that constitution it was delegate Caram,
delegate Fermin Caram of Iloilo. So ano ang ginawa ng mga delegates, aba eh it would be an
anomaly for the Philippine Constitution have been drafted by a non-Filipino they has to include a
special provision for him, this is known as we said the Caram provision, the provision statesthe
following shall be Filipino citizensshall be citizens of the Philippines one those who were
citizens of the Philippines at the time of the adoption of the Constitution, those whose father are
Filipino citizens, those whose mothers, those born to Filipino mothers who upon reaching the age
of majority elect Filipino citizenship and then those born in the Philippines of foreign parents who
before the adoption of this constitution were elected in the public office in this islands, born in the
Philippines of foreign parents before the adoption of the constitution elected to public office in the
Philippines and so delegate Caram was a citizen of the Philippines after all because of that
special Caram priovision, in fact a son of delegate Caram was elected member of the House of
the Representatives here under the1935 constitution.
What is the importance of the Caram provision to us now other that this purely academic
exercise, the importance of Caram provision is that in the case of Chiongbian vs. de Leon, the
Supreme Court said even as this is supposed to be special to Caram it was really a provision
included in the constitution only to accommodate Caram however, Caram and all those similarly
situated as he was could validly transmit Filipino citizenship to the descendants of all those
similarly situated as Caram and so the children of Caram and those similarly situated as Caram
also were Filipino citizens. Alright, dito sa January 17, 1973 constitution ang nadagdag lang dito,
those whose fathers or mothers are citizens of the Philippines, yung mothers as long as the
mother is citizen of the Philippines wala ng problema. So those are the citizens of the Philippines
at the time of the adoption of the 1987 constitution, including those who were naturalized under
Commonwealth Act 473 and the children and the descendants and lahat lahat unless of course
they lost Filipino citizenship at any time thereafter, yon, yon lahat ng yan are citizens of the
Philippines at the time of the adoption of the 1987 constitution.
The next group of citizens under the 1987 are those whose fathers or mothers are
citizens of the Philippines, wala na tayong problema dun. The third set of citizens are those born
before January 17, 1973 who upon reaching the age of majority elect Filipino citizenship. So what
elections, citizens by election, ok, first born before January 17, 1973 to a Filipino mother and
presumably an alien father because if the father was a Filipino then he would follow the
citizenship of his father and he would be a Filipino and therefore there would be not need to elect
Filipino citizenship, ok. Alright under the law a person entitled to elect Filipino citizenship must do
so upon reaching the age of majority, how does he elect Filipino citizenship? He executes a
sworn statement swears to this before anyone authorized to administer oath files this with the
Civil Registrar and then takes the oath of allegiance to support the constitution and the laws of
the Philippines, that very simple process is election of Filipino citizenship.
Under an opinion of the Secretary of Justice, in 1948, a person eligible for election as
Filipino has 3 years within which to elect Filipino citizenship, 3 years after reaching the age of

103

majority. In a number of cases the 3 years ah the 3-year period was applied very, very strictly but
of course there were instances where delay in taking the oath was excusable and so allowed
even beyond the 3 year period there was even a time when because the person believed that he
was already a Filipino citizen failed to take the oath or to elect Filipino citizenship and was
allowed to elect much, much later beyond the 3 year period.
Then we have the case of In Re Florencio Mallari where the Supreme enunciated the
doctrine of implied election. In Florencio Mallari, this is what happened, here was a child born to
Filipino mother and an alien father, he went through public schools in the province then he came
to Manila and studied college, he took up ROTC he was required to take ROTC in college, then
finished his college course, went home to the province he registered as a voter, he voted in the
election, he even wentin the subsequent election he even went with the candidate in the
campaign for public office it turned out he never elected Filipino citizenship. The Supreme Court
said, the taking up of ROTC, registering as a voter, voting in an election, going along with the
campaign of a candidate for public office, all of these acts are acts that only a Filipino citizen can
do. Collectively therefore, when you take all of these acts collectively, these acts indicate the
clear intention to elect Filipino citizenship, and so even if he did not formally elect Filipino
citizenship he is deemed to have impliedly elected Filipino citizenship and therefore a Filipino
citizen.
In the case of Co vs. House of Representatives Electoral Tribunal, a similar
conclusion has been reached, the congressman-elect subject of the protest in Conin House of
Representatives Electoral Tribunal was Jose Ong, Jr. of the second district of northern Samar, it
appearedat least in the statement of facts made by the House of Representatives Electoral
tribunal it appeared that Jose Ong, Jr. also finished college, he took up ROTC, he took and
passed the CPA licensure examinations, he even enrolled in the college of law of San Beda, he
did not finish, he voted ever since he reached voting age, he had registered and voted etc., so
iyon, the whole trouble however, is that there was no formal, the Supreme Court decision actually
dismissed the case, the petition for certiorari mainly on the ground that the House of
Representatives Electoral Tribunal did not commit grave abuse of discretion when it declared
Jose Ong, Jr. eligible for election as member of the House of Representatives, so iyon, ok.
Now class, balik lang tayo doon sa situation ng Filipino women dito, ano ang sinsabi
natin, suppose a Chinese man cohabited with a Filipino woman out of this cohabitation was born
X in 1971, the cohabito 71, not cohabit, but married in 1970 by virtue of the law prevailing at
that time, F Filipino woman lost Filipino citizenship and became Chinese upon her marriage to the
Chinese, so in 1970 F became Chinese, X was born in 1971, can X elect Filipino citizenship
considering that at the time of his conception and birth both his parents were Chinese because
the mother was already Chinese at the time of the conception of X, the answer is yes of course,
yes, yes because the determining factor is the citizenship of the mother at the time of her
marriage not at the time of the conception or birth of the child as long as the mother was a Filipino
at the time of her marriage then, the child can avail of the privilege of electing Filipino citizenship.
From your mastery of the Family Code, you know that man, woman, an illegitimate child,
an illegitimate child follows the citizenship of his only known parent, the mother, if the woman is
an American and the man is a Filipino at birth X is an American because X follows the citizenship
of his mother who is an American, ok. Assume that X was born in say 1990, in 1991 the father
and the mother decide to get married in 1992 another son is born, Y, what is the citizenship of Y
at the time of his birth, Y is a Filipino under Philippine law because his father is a Filipino citizen,
what is the citizenship of X at the time of his birth, he is an American because he is an illegitimate
child, he follows the citizenship of his mother, America. In 1992, is X a Filipino, just like his
brother, Y, if so by what mode did he acquire Filipino citizenship, if not, why not, 1% pa rin. Ang
iyong kungkung examiner ako, kung hindi ito, ito ang aking ibibigay na tanong eh sa bar exams
kasi kung examiner ako, medyo gagandahan ko naman ang mga questions,yung mahirap-hirap
naman ng konti parang papawisan naman kayo maski malamig doon sa La Salle noh, pero
mahirap ang mga tanong na aking ibibigay sa bar exams kung examiner, pero magaan ako
magcorrectoo magaan ako magcorrect maski yes ang correct answer tapos no ang inilagay mo
pag binasa ko yon siguro ang ibig sabihin nito ay yes ano, alright so, pero kailangan magandaganda naman ang mga tanong, mahirap naman yung puro lang mga nao. How can these 2 not
have the same citizenship, they are children of the same parents, in the law on persons, the
marriage of FM and AW resulted in the legitimation of X, is that correct? Not correct, kasi kayo
naman eh, hindi ko subject yon yung mga legitimation, o that means as of 1991 with the marriage
of FM and AW, X became a legitimated child, a legitimated child is entitled to all the benefits of a
legitimate child, does this include citizenship, assume that he is a Filipino citizen in fact in 1991
he is therefore a Filipino citizen in 1992, what could have been the mode of acquiring Filipino
citizenship, legitimation.but legitimation is not a mode of acquiring Filipino citizenship, neither is
marriage, although marriage may give rise to the naturalization of a the foreign woman as we will
discuss in a little while under Moy Ya Lim Yao vs. Commissioner of Immigration, yon. Yes of

104

course yes to everything, legitimated in 1991 he is a Filipino citizen as of 1991 he is a Filipino

citizen as of 1992, what is the mode of acquiring Filipino citizenship, birth, the principle of jus
Sanguinis, because of his legitimation, X can now claim filiation to a Filipino father, and so being
a son of a Filipino father he is therefore a Filipino under the constitution.
Naturalization
Finally class, the last set of those who are Filipino citizens are those naturalized in
accordance with law, natural.(blank)after compliance with certain requirements.
What are the modes of naturalization? Naturalization may be direct or derivative, direct
sa public international law ito eh, direct naturalization may be made either through individual
proceedings, judicial or administrative, because we now have administrative naturalization under
our laws, by an act of legislature, special act of Congress or special act of legislature, yon yung
conferment ofconferment of the nationality of a state or citizenship of a State over a territory
over all the inhabitants of a territory ceded to another State and in certain jurisdiction, some state
may confer the states nationality or citizenship upon minor orphans, minor orphans born in that
state. Derivative that means one becomes a naturalized Filipino citizen by virtue of somebody
else, somebody else, so the wifethe wife of a naturalized Filipino, wife of a naturalized Filipino
becomes a Filipino citizen, also a naturalized Filipino citizen kung wife na siya at the time of the
naturalization of the husband. The minor children acquire the citizenship of the naturalized father,
derivatively, so ang minor children are also naturalized ah. X becomes a naturalized Filipino
citizen, children A, B, and C who are minor children at the time of the naturalization born in the
Philippines residing in the Philippines, become naturalized Filipino citizens also. Subsequently, A
and B and C also have children X ,Y , Z, S, R, T, all of these children are natural-born Filipino
citizens because at the time of their birth their parents would have been Filipino citizens already,
but here at the time of their birthdate were not Filipino citizens, the acquired Filipino citizenship
only through the naturalization of their father, that is why the derived naturalized Filipino status
from their fathers naturalization, ok.
And the third instance of derivative naturalization is the acquisition of naturalized-Filipino
status by the alien wife of a Filipino citizen in accordance with Moy Ya Lim Yao vs.
Commissioner of Immigration. Alright, under the naturalization law it is provided that an alien
woman who marries a Filipino citizen shall become a Filipino citizen provided she herself may be
lawfully naturalized, provided that she herself may be lawfully naturalized, that phrase was
interpreted by the Supreme Court in the case of Moy Ya Lim Yao vs. Commissioner of
Immigration, I think it was Justice Barredo who penned the decision for the Court and this is how
he interpreted that phrase, if she herself may be lawfully naturalized means that she does not
have to go through the naturalization proceedings, she does not have to go through the
naturalization proceedings, wala, all she has to do is file a petition with the Bureau of Immigration
and deportation a petition for cancellation of her alien certificate registration. The petition for
cancellation should allege that she none of the disqualifications for naturalization, she does not
have to prove that he has all the qualifications, all that she must prove is that she labors under
non, she does not labor under any of the disqualifications under the law and then of course there
is only an administrative hearing in the Bureau of Immigration and Deportation on this petition for
cancellation of the alien certificate of registration. When granted, if the BID grants the petition the
ACR is cancelled and the foreign or the alien woman of the Filipino citizen is now made to take
the oath of allegiance after having taken the oath of allegiance, she is a Filipino citizen, that is
how the Supreme Court interpreted that phrase if she herself maybe lawfully naturalized no
formal naturalization process only proceedings for the cancellation of the ACR, no need to prove
that she has all the qualifications for naturalization all that she has to prove is that she labor under
no disqualification with the cancellation of the ACR and the taking of the oath, she now becomes
a Filipino citizen but she is a naturalized Filipino citizen even if her husband is a natural-born
Filipino citizen.
Alright, class, it has been a long.long time since a bar examiner asked a question on
naturalization especially on the qualifications for naturalization, the disqualifications, the
procedure. The qualifications are really very out-dated imagine for example the requirement that
the applicant must own a real estate worth at least P5,000, putangina ngayon, you go to Makati,
yung P5,000 mo can buy only 1 square inch of land there, one square inch na lang ang mabibili
mo doon, wala na, these are really out-dated and ah now very few people actually go through the
judicial process of naturalization, magastos, mabagal, mabubsisi, lahat, of course, because we
already have administrative naturalization.
Note that under our law on administrative naturalization, it is not the Court anymore that
grants naturalized Filipino citizenship status it is the special committee on naturalization, with the
SOLGEN as chairman and the Secretary of the Department of Foreign Affairs and the National
Security Adviser as member. Virtually, pareho ang qualifications, ang disqualifications pareho ang
isang mandatory qualification in administrative naturalization is that the petitioner or the applicant
must bemust have been born in the Philippinesborn in the Philippines. The fees are a little bit

105

stiff, medyo mahal ng konti ang administrative naturalization pero when you sum this all up mas
madali pa rin ang administrative naturalization kay sa sa judicial. Ineventually, it is even
cheaper. Now, bothrather whether, classs mayroon lang akong anomayroon lang kasi yung Li
Yao on naturalization, judicial naturalization yon eh the whole thing was brought up to the
Supreme Court because invariably the Republic goes up appeals to the Supreme Court and does
not agree with the lower court which may have granted, which may have acted favorably on an
application for naturalization, pero yung Li Yao, eto yung nangyari, examination direct
examination sa anodirect examination sa Court ng ah applicant, and so how long have you
been residing in the Philippines? Oh I have been residing here for more than 25 years already,
continuously, and what have you been doing in the Philippines during your entire stay which you
said spans a period of 25 years? I have been engaged in legitimate business, what kinds of
business, oh all kinds, I did thisthis during the period that you were engaged in business
in the Philippines, did you comply with the laws? yes, did you pay taxes, yes , I paid taxes
religiously, in fact even during the time of Marcos, when Marcos issued tax amnesty
proclamations, in always paid tax amnesty. Isipin niyo yon yon lang pagdating sa Supreme
Court sinabi that means you were not paying correctly, you were not paying taxes correctly, that is
why you have to avail of the amnesty tax proclamation, therefore you are not of good moral
character therefore you cannot become a naturalized Filipino citizen. Whether the acquisition of
the naturalized Filipino citizenship(side B) no certificate of naturalization is ever final is still true
because at any time then certificate may be cancelled, look at the grounds for cancellation, in the
judicial process if the certificate of naturalization is obtained fraudulently, if the applicant after
naturalization within 5 years within 5 years after the naturalization, takes up residence, permanent
residence in another state provide that 1 year stay in his home country and 2 years residence in
another country or 2 years residence in another country would be prima facie proof of his
intention to reside outside the Philippines. Third if he obtained his naturalization under an invalid
declaration of intention; fourth, if his children failed to graduate in schools in Philippine schools
because the naturalized Filipino refused to support them and of course, finally, if he allows
himself to be used as a dummy. So class, wala ng..justjust read that for purposes of
preparation pero I dont think that there will bethere will be a question here on naturalization,
notnot while we have all of these outdated provision.
Loss and Reacquisition of Filipino Citizenship
We move on class to the laws of Filipino citizenship, the first of the modes of losing
Filipino citizenship is naturalization in a foreign country. Naturalization in a foreign country, while
this is still a valid mode class, we now have Republic Act 9225, the law that says that a Filipino
citizena natural-born Filipino citizen may, actually retains Filipino citizenship even if he is
naturalized abroad, as of the date of effectivity, date of effectivity, those already naturalized
already naturalized can re-acquirere-acquire Filipino citizenship by taking the oath of allegiance
so the effect is for them, they already lost Filipino citizenship but they can re-acquire Filipino
citizenship by simply taking the oath of allegiance which is mentioned in the law itself, its a brief
oath of allegiance.
Alright, those who become who are to become, prospectiveto become naturalized
citizens of another country, they retain Filipino citizenship again by taking the same oathby
taking the same oath, however class, this a privilege granted in the Republic Act 9225 only to
former in the case of dito, or kung dito natural-born Filipino citizens, you must have been a
natural-born Filipino citizens who lost Filipino citizenship because you became a naturalizedcitizen abroad then you re-acquire Filipino citizenship by taking the oath of allegiance, you can
here you can retain Filipino citizenship. Since this was approved in August 2003,this is outside
the coverage, otherwise we would discuss ramifications kasi they may be residents abroad they
need not come home, they can take the oath of allegiance before any US embassy ayFilipino
embassy in America or else where wherever they arethey canthey will then acquire, reacquire, retain Filipino citizenship walang requirement na umuwi kasi kung uuwi ka, hindi ka na
makakapagpadala ng dollars dahil dito ka naman nakatira na, or wherever but there are
ramifications here, for example, if they are residing abroad and they want to vote, and then you
apply of course the provisions of absentee voting act.
Suppose they returned to the Philippines since they are Filipino citizens, can they run for
public office? When they do re-acquire, re-acquire when they re-acquire Filipino citizenship, do
they also re-acquire natural-born Filipino citizenship status? If they want to become, to run for
public office, can they do so, what if they are already public official or working in government
wherever they are? All of these are of course anticipated by the law itself and so, palibhasa
August, pabayaan na lang yan, saka na lang,ito lang ang importante, is naturalization in a foreign
country still a mode of losing Filipino citizenship? Yes, yes because if today you become a
naturalized American and you do not take the oath, then you do not retain Filipino citizenship, you
completely lose Filipino citizenship if you not take the oath of allegiance, ok.

106

Second mode of losing Filipino citizenship is by express renunciation of Filipino

citizenship, the word is express kaya in Valiez vs. Commission on Elections, the Supreme
Court, the fact alone that Rosalyn Evasco had a an Australian passport, the fact alone that she
was born in Australia, she had an Australian passport when she entered the Philippines she even
registered a s an alien, all of these acts do not constitute as renunciation of Filipino citizenship,
she is still a Filipino citizen but in the case of Labo vs. Commission on Elections, matagal-tagal
na ito ng konti, Labo was universally known faith healer kaya marami ang pumupunta rito na ibat
ibang mga ano noon sa Baguio, nagpapagamot kay Labo, Labo fell in love with an Australian, he
married the Australian woman, he even went with the Australian woman to Australia, he intended
to take up complete residence in Australia, he applied for Australian nationality, apparently the
procedure in Australia is different when you apply you already renounce any and all allegiance to
any other state, that is what he did when he filed for his application for Australian citizenship, he
renounced any and all allegiance to any other state, ok. However, because his application was
predicated on his having been married or his being married to an Australian woman, it turned that
his marriage to the Australian woman was invalid, it was a bigamous marriage, it was not his fault,
it appeared that his wife had a prior existing valid marriage, so hishe was suppose to acquire
Australian nationality as the husband of an Australian national but now that there wasthat he
was not the husband anymore, wala na so his application was denied, he came back to the
Philippines, run for mayor of Baguio City, he won, a disqualification case was filed against him,
the Supreme Court said that he is disqualified, he was not a Filipino citizen, he lost his Filipino
citizenship when he renounced allegiance to any and all states, he said, but I have not acquired
Australian nationality, sagot ng Supreme Court, that is true, for all we know you are a stateless
individual now, but we are saying definitely that you are Filipino citizen, therefore you cannot be
mayor of Baguio City, the following election, he run again, he won again, and he was disqualified
again, because he has not yet re-acquired Filipino citizenship and so after his second
disqualification, he re-acquired Filipino citizenship through naturalization, and then in the next
election, he run again and he lost, ayanyang ang problem ngayon, may kalabuan ng konti yan.
Alright, there is this what I would consider class, aan aberrant decision, the case of
Willy Yu vs. Miriam Defensor-Santiago, it seems that jurisprudence, whenever it involves
Miriam Defensor-Santiago, is an aberration noh, alright, eto, Willy Yu formerly form Macau,
Macau at that time was a colony of Portugal, so Willy YU was a Portuguese and applied again
renewed his Portuguese passport, did not stay permanently to Macau, he would go to Hongkong,
he had a lot of transaction in Hongkong and in almost all his transactions in Hongkong he used
his Portuguese passport and claimed that he was a Portuguese national and not a Filipino. One
of the transactions he entered into in Hongkong turned sour, babanatan na siya ng kanyang kabusiness transaction, he fled to Manila, came back to Manila, histhe people he did business
with in Hongkong came to Manila and petitioned with the Departmentthe Bureau of Immigration
and Deportation, si Miriam ang Commissioner noon, Miriam ordered the deportation of Willy Yu,
Willy Yu said how can you deport me, I am a Filipino citizen Miriam said as far as I am
concerned you are not a Filipino citizen anymore, so Willy Yu went to the Supreme Court said I
cannot be deported, I am a Filipino citizen. The Supreme Court upheld Miriam DefensorSantiago and said Willy Yu lost Filipino citizenship through renunciation of his Filipino citizenship,
again in this case, the Supreme Court considered the totality of his acts, his going back to Macau,
his renewing or renewing his Portuguese passport, and later isa pang renewal when it expired,
his representation that he was a Portuguese citizen in all of his business dealings in Hongkong,
all of these taken together, sabi ng Supreme Court constitutes renunciation of Filipino citizenship
therefore he has already lost his Filipino citizenship. I think there was only one Justice who
dissented, Justice Hugo Gutierrez who pointed out the language of the law, express
renunciation express renunciation but he was outnumbered and so Willy Yu was deported.
Alright, the other modes are by taking the oath of allegiance or the taking the oath to
support the constitution and laws of another state, by rendering service as an officer or a member
of the armed forces of another state unless there is a bilateral offensive or defensive agreement
with that state or that state maintains a armed forces in the Philippines; 5. cancellation of the
certificate of naturalization; 6. by being declared a deserter, declared by a competent authority as
a deserter of the armed forces of the Philippines and lest in the meantime he had already been
pardoned or been granted amnesty.
Modes or re-acquisition of Filipino citizenship, the first of the modes, now class would be
by taking the oath of allegiance under Republic Act 9225 provided that he is a naturalformer
natural-born Filipino citizen and he lost his Filipino citizenship by naturalization in a foreign
country, the second mode of acquiring.re-acquiring Filipino citizenship is by naturalization,
when a former Filipino becomeor rather re-acquires Filipino citizenship by naturalization he
does not have to prove that he has all the qualifications for naturalization, all that he has to prove
is that he does not labor under any of the disqualifications under the law, if he re-acquires Filipino
citizenship by naturalization, will that make himwill that restore him, if he was a natural-born

107

Filipino citizen and he re-acquires Filipino citizenship by naturalization, will that restore his original
natural-born Filipino status? No, he would be a naturalized Filipino citizen.
The 3rd mode is repatriation, we have had ah a decree on repatriation and we now have a
law on repatriation but the important thing to remember class, is in the case of, pang-ilan na kasi
nito ni Frivaldo, kasi Frivaldo, isa pa yon na priming nadidisqualify, permingperming nanalo sa
elekyon pagkatapos nadidisqualify, in Frivaldo, the Supreme Court said that the effect of
repatriation retroacts to the date of filing of the application for repatriation, thats one.
Then second Bengzon vs. House of Representatives Electoral Tribunal, when a
person is repatriated he is restored to his original status as a Filipino citizen, accordingly, if before
he lost his Filipino citizenship he was a natural-born Filipino citizen, upon repatriation he is
restored to his natural-born Filipino citizenship status, kaya nga, if you resd the decision medyo
may portions doon na nakakatawa nohnakakatawa kasi sabi ng Supreme Court dyana fili
there are only 2 kinds or Filipino citizens, natural-born and naturalizednatural-born and
naturalizedeto na nga, here is somebody who re-acquires Filipino citizenship, hindi siya Filipino
citizen, he re-acquires Filipino citizenship, sabi ng Supreme Court, if he re-acquires Filipino
citizenship through naturalization then he becomes a naturalized citizen but if he re-acquires
Filipino citizenship through repatriation the he is not naturalized therefore he is natural-born
medyo Malabo ng konti, but as Ive said hindiwala..hindi makapag-ano doon, yes lang tayo ng
yes, yes sir, yes...ganoon na lang wala tayong magagawa. Restored to natural-born Filipino
citizenship status, finally, classthe 3 rd modethe 4th mode of re-acquiring of the Filipino
citizenship is through a direct act of the Congress, naturalization can really be conferred upon a
foreigner or an alien by a direct act of Congress, usually given to aliens who have made
substantial contributions to Philippine society or to Philippine government.
LEGISLATIVE DEPARTMENT
We have finished with Article IV, we will take up Article V when we go to election laws, we
move on to Article VI on the Legislative Department. Section 1 speaks of the legislative power
being vested in the Congress of the Philippines except to the extent that the same is reserved to
the people through the powers of initiative and referendum, and of course Section 32 of the same
article mandates the Congress to pass the law providing for initiative and referendum, section 32
also provides the minimum constitutional requirement for initiative and referendum on national
legislation which is that the petition must be supported by the signature of at least 10% of all the
registered voters in the country, provide that each congressional district be represented in the
petition by the signature of at least 3% of all the registered voters in each congressional district.
Alright, the legislative power is the power to propose, enact, amend and repeal law, recall
what we mentioned at the outset when we discussed and distinguish the legislative and the
constituent powers. Now, before we go to Congress, let us now just look at the power of initiative
and referendum again, under Republic Act 6735, initiative as we said, is defined in that law as
the power of the people to propose amendments to the constitutions or to propose or enact
national or local legislation through an election called for that purpose, we said we are informed
form the definition that there are 3 kinds of initiative: an initiative on the constitution, an initiative
on national legislation, an initiative on local legislation. Recall, Miriam Defensor-Santiago vs.
Commission on Elections where the Supreme Court said that Republic Act 6735 is inadequate
for the purposes of an initiative in the constitution but that the law is sufficient for the purposes of
initiative on the national as well as an initiative on the local.
Consider also class, the definition of an indirect initiative where the people petition for the
adoption of a law course through Congress, it is indirect in that instead of seeking the direct
adoption of the law through an election for the purpose, the people instead go through Congress
and would like Congress to adopt that law through the legislative, the normal legislative process
provided in article VI.
A referendum is defined in the law as the power of the people to approve or reject
national or local legislation through an election called for the purpose which then tells us that
there are 2 kinds of referendum, a referendum on national legislation and a referendum on local
legislation.
Requisites
I just would like to call you attention to requisites or limitations on the exercise of the
power of initiative and referendum; first, that, that a petition that contains a petition for ah
legislative approval or rejection or enactment that contains more than 1 subject shall not be

108

submitted to the people. Then statutes involving emergency measures, the enactment of which is
vested in the Congress by the constitution itself may not be the subject of a referendum at least
90 days after its effectivity. Then look ato nevermindwe will talk about local initiative and
referendum when we go to local governments.
Congress
So we move on to Congress where is vested the peoples legislative power. Congress is
composed of 2 chambers, the Senate and the House of Representatives that makes Congress a
bicameral instead of a unicameral legislature. In your undergraduate years, in your prepreparatory law course you must have come across the distinction between bicameralism and
unicameralism, the advantages of one over the other and I just want to remind you that when you
were talking up Political Science or whatever, you were told that the Senate is there because it is
supposed to be the training ground for future presidents of the Philippines, I shudder to think of
the people who are being trained there now so nevermind, I think that advantage used to be
attributed to a bicameral system of legislature is no longer valid today and so I am one with
millions of people who are in favor in a change in the system and a return to the unicameral
system of legislature. I dont know pero kasi may bias na ako, I served in the House of
Representatives for 6 years I amI am willing to bet with anyone if we go through the quality of
bills filed in the House of Representatives and compare them to the quality of bills filed in the
Senate, the quality of the Senate Bills fail in comparison to the bills filed in the House of
Representatives perhaps it is because there are more people in the House and naturally, if you
have more people you have more minds and the ganyan lang.
Senate
Anyway, we move immediately to the Senate, the Senate is to be composed of 24
senators who are elected at large by the people, wala tayong problema dyan. Qualifications,
natural-born Filipino citizen on the day of the of the election must be at least 35 years of age,
must be able to read and write, registered voter, resident of the Philippines for at least 2 years
immediately preceding the election, wala tayong problema sa natural-born citizen we just finished
that, age 35 years on the day of the election, the day of the lection is the day when the people
cast their votes, registered voter, we will talk about registration of voters before we end our
session when we take up election laws. Resident of the Philippines, I think that is a question of
fact and you know very well even in light of Imelda Romualdez-Marcos vs. Commission on
Elections, that we refer here to domicile and that domicile here according to the Supreme Court
in this case is not to be understood in the same manner as residence in the manner that
residence is understood in Civil Law. And then of course, able to read and write that is the mere
literacy qualification, able to read and write whatoo. If a person is blind but he knows how to
read and write in BrailleBraille, will he be qualified for the Senate explain you answer, 1% noh.
Alright, then of course the term of office is 6 years commencing at noon at the 30 th of June
following his election and then no person can serve for more than 2 consecutive terms as Senator
and any voluntary renunciation during the term shall not be considered as a valid interruption of
this prohibition against 2 consecutive terms. So wala tayong problema sa Senado, ang problema
lang natin kung sino ang mga senador ngayon, ok.
House of Representatives
We move on to the House of Representatives, the House of Representatives is supposed
to be composed of not more than 250 members, to be composed of district representatives,
party-list representatives and at lest for the 1 st3 terms under the constitution sectoral
representatives. So district, party list and sectoral but your sectoral representatives are supposed
to be elecchosen only during the 1 st 3 terms. The Constitution provides that not more than 20%
of the total number of seats in the House of Representatives shall be allocated to party list
representatives provided however that during the 1 st 3 terms under the constitution of the seats
allocated to part-list representatives shall be given to sectoral representatives who shall be
elected or selected in a manner provided by law. In the transitory provisions of our constitution
there is a provision to the effect that until a law shall have been passed on the manner of electing
or selecting sectoral representatives, these sectoral representatives shall be appointed by the
president of the Philippines and in the case of Quintos-Deles vs. Committee on Constitutional
Commissions, Commission on Appointments, the Supreme Court said that the appointment of
sectoral representative pursuant to that provision requires the consent or the confirmation of the
Commission on Appointments. This so because as you will see later as you will see later the
appointment of sectoral representatives fall within the 4 classes of appointments made by the
President of the Philippines whish require confirmation by the commission on appointments.
Alright, we go first to district representatives, district representatives are members of the House of
the Representatives who are to be elected by the voters, the registered voters in a legislative
district. The constitution provides that provinces, cities, and metropolitan Manila maybe

109

apportioned into congressional districts, dividing provinces, cities and metropolitan Manila into
congressional districts for purposes of representation in the House of Representatives is called
the power of apportionmentapportionment and it is the legislature, it is congress that has the
power of apportionment except that the first apportionment of congressional districts was made,
under the constitution, was made by the constitutional commission that drafted the constitution.
Where do you find these, where do you find these apportionment, it is found in the ordnance, in
the ordinance appended to the constitution which forms part of 1987 constitution.
Alright the constitution provides that congress shall pass a re-apportionment law within 3
years from return of every census, the census referred to in the constitution is the census on
population which is normally undertaken by the government once every 10 years, census on
population so. In the matter of passing a re-apportionment law or an apportionment law for that
matter is the question or the issue of the validity of apportionment, a political or justiciable
question. In the case of Macias vs. Commission on Elections, the Supreme Court said it is a
justiciable and not a political question, when congress makes a re-apportionment, what are the
guidelines prescribed by the constitution? The constitution provides first that the apportionment
into districts shall be made based on the number of inhabitants or according to the number of
inhabitants based on a uniform and progressive ratio; second, the constitution provides that every
city with at least 250,000 inhabitants shall be entitled to at least 1 legislative district and every
province regardless of the number of inhabitants shall be entitled to 1 legislative district, the
constitution continues and provides that the territory constituting 1 legislative district should as far
as practicable beshould as far as practicable consist of compact, contiguous and adjacent
territory, this is intended to prevent the evil known as Gerrymandering. Gerrymandering is taken
from the an American governor, former governor of Massachusetts, Elridge Gerry who so
apportioned districts in the state of Massachusetts to favor him even as one district looked like a
salamander and that is the reason why you have Gerry and Salamander naging Gerrymandering
iyon, intended to favor individualindividual candidates or aspirants for public office in the
district, ok.
Now, Mariano vs. Commission on Elections, in as much as the constitution provides
that a re-apportionment law shall be passed by theby Congress within 3 years from the return
of every census, the question raised there was, can congress pass a special law creating a new
congressional district or apportioning one district into 2 or making or dividing a certain existing
district into 2 or more districts, the Supreme Court in Mariano vs. Commission on Elections
said Yes, yes ah the issue had earlier resolved already in the case of Tobias vs. Abalos, when
Mandaluyong was converted into a city, earlier there was 1 congressional district consisting of
both Mandaluyong and San Juan 1 congressional district, when the law was passed converting
the Municipality of Mandaluyong into a city, that law also provided that Mandaluyong shall then
become an independent congressional district because Mandaluyong was converted into a
separate congressional district, San Juan therefore also became an independent congressional
district even if San Juan is relatively small in terms of voting population. In Mariano the question
precisely was, was the law converting the Municipality of Makati into a city, constitutional,
considering that the law also divided Makati into 2 district form the original 1 district, there used to
be 1 district in Makati then because of the law this single district was divided into 2. Alright, so the
Supreme answer this, in both Tobias, and Mariano in the affirmative. Yes congress can create
new congressional districts or divide 1 into 2 or more congressional districts subject of course to
the guidelines prescribed in the constitution and congress need not wait for that 3 year period
after the return of every census, otherwise the Supreme Court said, you will perpetrate a situation
where even if there is really a need for re-apportionment congress will not be able to do so
because it is its hands are tied by the constitution, so that is the rule in Mariano vs. Commission
on elections.
Then we look at Montejo vs. Commission on Elections, Montejo vs, Commission on
Elections is authority for the principle that the commission on elections cannot exercise the power
of apportionment. That the power of apportionment is vested in congress this is what happened in
Montejo vs. Commission on elections, the province of Leyte under the 1987 constitution has 5
districts, the 3rd district of Leyte included the sub province of BiliranBiliran when the Local
government code was passed and it became effective, under the local government code all sub
provinces, well the concept of sub province was abandoned, all sub provinces were abolished
provided however, in the transitory provisions of the local government code, there is a provision to
the effect that all existing subprovinces maybe given an opportunity to be converted into fullfleged provinces if in a plebiscite held for the purpose, the majority of the votes cast will favor
provincehood, otherwise the component cities and municipalities of any of the subprovince will
revert to the mother province and the subprovince itself abolished, ok.
In the 1992 elections, a plebiscite was held in Biliranand Biliran, voters in Biliran voted for
provincehood for Biliran and so Biliran became a province, consistent with the constitution Biliran
now would be entitled to a single congressional district. Because the original division of Leyte into

110

5 congressional districts was based precisely on number of inhabitants on a uniform and

progressive ratio.the 3rd district became a very small district kasi wala na ang Biliran, what did the
Commison on elections do? The Commission on elections said well dapat lang siguro medyo
ayusin natin anglet us distribute some of the municipalities in some of the other districts so that
more or less there would be proportional representation, so 2 municipalities form the 2 nd district
and 1 municipality from the 4 th district were added through a COMELEC resolution to the 3 rd
district, ok, COMELEC resolution. The incumbent congressman at that time of the 1 st district was
Cerilo Roy Montejo, one of the brightest, ablest congressmen that Leyte ever produced, he was
an authority on taxation, he was an authority on administrative law, he was a fomer civil service
commissioner, etc and he was a very very good man, anyway, but he was also a politician ok. In
19yon na ahmalapit nay an 1994-1995 elections, 1994 it was already been bruted around
that Imelda Romualdez-Marcos will run for congress in th e1st district of Leyet, presumably in the
1st district of Leyte whwere the municipality of Tolosa belongs kasi nandoon
July 14, 2004
Commission on Appointments
Alright, we start with Commission on Appointments. Incidentally class, when we finished
last night with the Electoral Tribunals, note that the Electoral tribunals is not a really part of
Congress even as you have an electoral tribunal in each house, the electoral tribunal is
theoretically independent of the houses. They have their own chairman, they have their own staff
and they are independent as if were of the houses. And of course that recent decision of the
Supreme Court in the case Pimentel vs. House of Representatives Electoral Tribunal, when
Pimentel taking the ? for partylist representative, went directly to the Supreme Court asking that
the house of representative allocate a seat in the electoral tribunal as well as in the Commission
on Appointments certain seats for partylist representatives. The Supreme Court dismissed the
Pimentel petition saying that the proper forum for that petition should have been the House of
Representatives itself. This is really administrative law. The doctrine of primary administrative
jurisdiction in administrative law, resorts in the court can be made only after one has invoked the
administrative agency that has primary jurisdiction.
Alright, so we go to the Commission on Appointments. The constitution provides that
there shall be a Commission on Appointments to be chaired by the Senate President and the
composition shall include 12 senators and 12 members of the House of Representatives who are
elected on the basis of proportional representation of the political parties registered under the
partylist system represented in the house.
So first the matter of entitlement to seats in the Commission on Appointments in so far as
the Senate contingent is concerned. The case of Guingona vs. Gonzales. After the 1992
elections, when Congress was organized the Senate was composed of 16 LDP senators, 5 NPC,
2 Lakas, and 1 Liberal Party senator. Senator Guingona was one of the LDP senators elected in
1992. When the senate leadership constituted the senate contingent or the Commission on
Appointments, elected members of the CA were 8 LDP senators, 2 NPC, 1 Lakas, and 1 LP.
Unfortunately one of the LDP senators, Guingona was not elected to the Commission on
Appointments. Because of this, Guingona went to court to challenge this representation of the
Commission on Appointments, saying that this was not consistent with the Constitution since the
Constitution speaks of proportional representation of the political parties registered under the
partylist system represented in the senate. The Supreme Court, deciding the case said that, in
order that the political party represented in the senate may be entitled to a seat in the
Commission on Appointments, there must at least be 2 senators belonging to the party for
entitlement to a seat. And so on the basis of membership of in senate of the senators, LDP would
then be entitled, 16 divided by 2 would be 8, NPC 5 divided by 2 would be 2 and a half, but you
dont have a senator noh. At that time, there were some senators who were half-half. You
know. Yes there must at least be 2 senators then, na ganyan. Alright. 2 divided by 2 is 1, 1 divided
by 2 is , so zero. Note that instead of the 12 senators that would constitute the senate
contingent to the Commission on Appointments, there were only 11. The Supreme Court said
that it does not matter if you have only 11 senators by way of senate contingent to the
Commission on Appointments because afterall under the constitution the Commission on
Appointments is supposed to decide on the basis of majority vote of all of the members and since
you will still have 12 members of the House of Representatives, accordingly you will have enough
members for purposes of obtaining a majority vote to effect a decision in the Commission on
Appointments.
Alright, still on composition. This time with respect to the House of Representatives
contingent we have Daza vs. Singson. After the 1987 elections, when the house organized itself
elected to the Commission on Appointments as among those who were, yes elected to the
Commission on Appointments, representing a liberal party in the house were 2 members of the
liberal party, Raul Daza and the Congresswoman from Pasay that time, Norma Verano-Yap.

111

Alright, this was in 1987, the organization of the House of Representatives. In 1988, the LDP was
organized. Remember in 1987, the LDP was not in existence, the LDP was organized and the
LDP had the four front of course, Speaker Ramon Mitra and Peping Conjuangco as secretary
General. With the organization and the eventual registration of LDP with the Commission on
Elections, virtually all of the members of the House of Representatives joined LDP. Of the original
37 Liberal party senators, 19 or 20 went to LDP reducing the original 37 to only 18 LP
Congressmen. When the LDP consolidated itself into a some kind of a monolithic political party
having full control of the House of Representatives, remember class in yesterdays example err
yesterday discussion of Bondoc vs. Pineda, sa HRET, in the HRET halos LDP lang ang merong
ano, of the 6 members of the house elected to the HRET, 5 were LDP. And 1, LP. So tingnan
niyo halos LDP talaga when you speak of proportional representation. In any event with the
desimation eventually of the LP, LP representatives in the House of Representatives, the
leadership of the house asked for the reorganization of the 12-man contingent to the Commission
on Appointments. On motion of the majority leader, a new set of representatives was elected. It
was not entirely a new set because of the original 12, 11 were nominated and reelected. The 12th
was Chavit Singson, replacing Raul Daza. Norma Verano-Yap was among the 11 still elected to
the Commission on Appointments. Accordingly, the LP representation in the House of
Representatives contingent was reduced from 2 to 1. Raul Daza went to the Supreme Court and
said that membership in the Commission on Appointments is permanent. And that therefore he
should not have been replaced in the Commission on Appointments. Yesterday when we talked
about Bondoc vs. Pineda, we said that the Supreme Court declared that membership in the
House of Representatives Electoral Tribunal is permanent. Permanent in the sense that once
membership in the electoral tribunal may be terminated only for any of the valid grounds for
terminating official relationships like death, resignation, removal, acceptance of an incompatible
office, abolition of office, expiration of term and the Supreme Court in Bondoc vs. Pineda said
disloyalty to the party or betrayal to the party interests will not constitute a valid ground for
termination of his membership in the house electoral tribunal. Bondoc vs. Pineda of course came
later than Daza vs. Singson. But in Daza vs. Singson, in fact Daza vs. Singson invoked an earlier
decision of the Supreme Court which took place during the time of Diosdado Macapagal where
the Supreme Court said that the constitution of the allied majority, they called it the allied majority
in the House of Representatives did not at all result in the change of party representation in the
House of Representatives contingent to the Commission on Appointments.
In any case, the Supreme Court decided the case of Daza vs. Singson by saying that
Daza is not entitled to claim the seat that was denied him. The Supreme Court said membership
in the Commission on Appointments is never permanent. It is never permanent in the sense that
it is always subject to the Constitutional provision that membership therein shall be based on
proportional representation of the political parties registered in the partylist system represented in
the house. Because the Liberal party proportion, Liberal Party Congressmens proportion to the
other members of the house was reduced then there was reason not, rather there was valid
reason to replace Daza in the House of Representatives contingent to the Commission on
Appointments. So class if you just read Bondoc and you see the declaration made by the
Supreme Court that membership in the House of Representatives electoral tribunal is permanent
and then you look at Daza vs. Singson where the Supreme Court says membership in the
Commission on Appointments is never permanent, does this mean there is a conflict between the
decision in Bondoc and the decision in Daza? Or do we treat one differently from the other,
membership in the electoral tribunal is permanent while membership in the Commission on
Appointments is not permanent? Is there a difference between these two decisions therefore?
The difference is merely apparent. There is no real difference class. There is no real
difference. Let us say, in the 1 case the Supreme Court said the glass, a glass for example filled
with water, half-filled with water, in 1 case the Supreme Court said the glass is half-full. In the
other case, the Supreme Court said the glass is half-empty. That means of course the glass is
only half-filled with water. Even as the Supreme Court has said that membership in the
Commission on Appointments is never permanent, that statement simply says that this
representation will still be based on proportional representation. When the Supreme Court said
membership in the electoral tribunal is permanent, that statement did not mean that even if there
should be a reorganization in the house, or yes a reorganization in the house, and the
proportional representation of parties will be substantially changed, one can still claim to
membership in the electoral tribunal, NO. Membership in the electoral tribunal even if the
Supreme Court said it is permanent will still be subject to the proportional representation rule
mandated in the constitution. So, pareho lang ang dalawang yan.
Alright, the Commission on Appointments according to the constitution is the agency that
will pass upon the appointments made by the President of the Philippines. The Commission is
supposed to meet and deliberate only while Congress is in session. And the commission is
supposed to deliberate appointments and/or nominations made by the President and submitted to
the Commission within 30 session days. A decision of the commission shall be made on the

112

basis of the majority vote of all of the members. The senate president shall not vote except in
cases of a tie. What happens then to appointments submitted to the Commission on
Appointments? First, note class and this is discussing this in advance, I really hope we can finish
the matter of presidential appointments before we break tonight. Nominations in the case of
regular appointments, the President merely issues a nomination and submits this to the
Commission on Appointments. The Commission on Appointments is supposed to act on the
nomination. If the Commission on Appointment rejects or disapproves the nomination, then the
nominee gets to hold the position to which he was nominated. It is only upon approval by the
Commission on Appointments that the appointee may validly assume office.
Alright, the Commission, on the hand, in the case of ad interim appointments, the
President appoints, not just nominates, the President appoints, issues an appointment to the
person, and the person appointed immediately assumes office and then his appointment is
submitted to the Commission on Appointments for confirmation. If the Commission on
Appointments rejects the appointment, then of course that is the end of the appointment as the
appointee may have already been in actual possession of the office. His rejection of his
appointment by the Commission on Appointments, will terminate his appointment. The
appointment ceases. If the Commission on Appointment, bypasses that appointment, in that the
Commission on Appointment has not actually acted upon the appointment for lack of material
time or because it did not organize itself immediately or because adjournment of Congressional
sessions set-in, then the appointment also ceases.
However, as held in the case of Matibag vs. Benipayo, the President may issue another
ad interim appointment to the same person whose appointment was by-passed by the
Commission on Appointment. That so, the action that may be taken by the Commission on
Appointments on a nomination or an ad interim appointment could be any one of three: the
Commission on Appointments may approve the appointment, that means the appointment is
confirmed. Or the Commission may disapprove the appointment. Or if the Commission on
Appointments fails to approve or disapprove, then the Commission on Appointments is deemed
have by-passed the appointment.
Alright, we will get back to this when we talk about the powers of the President. We will
also know which appointments require confirmation of the Commission on Appointments.
Like the electoral tribunal, the Commission on Appointments is theoretically independent
of Congress. It has its own staff, it has its own offices, even as the Senate President is supposed
to preside over and chair the Commission on Appointments. Ok. That takes care the general
provisions applicable to both the Senate and the House of Representatives. We move on to the
constitutional powers of Congress.
Powers of Congress
The first of this constitutional powers is of course the plenary legislative power. The
plenary legislative power is the power to propose and act, amend and repeal laws. As you will
know, a you very well know, the constitution sets down the various guidelines in the matter of
legislation. Guidelines, limitations, conditions, etc. Even as these guidelines are set forth in
section 6 I Article 6 of the Constitution, you see that there are also certain provisions of the
Constitution that act limitations on the exercise of this legislative, this plenary legislative power of
Congress.
Limitations
So the express limitations of course are your bill of rights for example. And the limitations
prescribed in Article 6 including the limitations on bills embracing only 1 subject to be expressed
in the title thereof.
Limitation on procedure. Three readings on separate days. Then of course of passing
appropriation measures, you have the things, the conditions, the guidelines in passing
appropriation measures. Of course you also find provisions in Article 6 relative to taxation and
then specific provisions such as prohibition against passing a bill expanding or extending the
appellate jurisdiction of the Supreme Court unless the Supreme Court gives its consent. As well
as the provision that prohibits the passage of any title of royalty or nobility. An implied limitation
on the legislative power of Congress as in fact a limitation on the entire legislative power of
government, we end this limitation flows from the Republican character of our government is what
weve already discussed when we spoke of Republicanism. The principle that government
cannot pass a repealable loss because as we said, we in a Republican government the element
of change, the need for dynamism is there and one cannot pass a repealable loss that will petrify
government and chain government preventing it from responding to exigencies and the demands

113

of (power)? Perhaps the better thing to do class in the matter legislative, the plenary legislative
power of government would by take you on an excursion as if where take you to Congress
vicariously. You do not have to go there, you wont learn anything there.
Legislative Process
Let us got through the entire legislative process. A law must start as a bill. A bill. Bakit
kaya bill ang ngalan nito? Parang naniningil. Alright. The constitution itself requires that no bill
shall become a law unless that bill contains only one subject to be expressed in the title thereof.
So dalawa ang requirements dun. The subject matter itself must be only 1 and then the title must
express this subject matter that is contained in the bill. Ok, so only 1 subject, this rule on only 1
subject however is interpreted to mean 1 general subject matter. So that if you were very strict on
the bills, such that you limit or restrict the contents of the bill to one specific, particular, individual
subject matter, you will not succeed. You wont get what the country probably requires in the
matter of responding to the problems of the country. For instance, where Congress passes a
Civil Code not really Civil Code, will span through many many subjects from family relations
which include many subjects already: marriage, legal separation, adoption, then rules on paternity
affiliation. All of those things, dun pa lang sa persons and family relations pa lang, and so class
when you speak of only one subject, that subject refers to a general subject matter and not to a
specific/particular subject matter. As long as all the provisions of the bill relate to a common
general subject matter, there is no constitutional violation. In relation to that subject being
expressed in the bill, in the title of the bill the Supreme Court has also ruled that the title of the bill
does not have to be an index of the contents of the entire contents of the bill. And so, it is not
uncommon class for a bill to be entitled something like this: An act amending Section 183 of
Republic Act 7016 and for other purposes. Yung for other purposes, more or less captures the
other things that the bill contains that are not expressed in the title. In the case of Mariano vs.
Commission on Elections, the title of the bill which became law was An act converting the
Municipality of Makati into a highly-urbanized city to be known as the City of Makati and for other
purposes. One of the challenges raised precisely in Mariano vs. Commission on Elections was
the bill contained a provision creating 2 legislative districts. This was not expressed in the title.
Therefore this is unconstitutional. The Supreme Court said no. Precisely, you do not have to
include all the things that you find in the bill in the title. You just place in the bill only the general
subject matter that the bill really contains. That is how this constitutional provision is to be
interpreted.
Alright, since there are 2 houses of Congress the Senate and the House of
Representatives. A bill may be filed in either house. Of course a senator must file his bill in the
senate and a member of the House of Representatives must file his bill in the House of
Representatives. The constitution comes in and says there are certain bills that must originate
from the House of Representatives. Certain bills-appropriation bills, revenue bills, tariff bills, bills
increasing the public debt, bills of local application and private bills. All of these bills must
originate in the House of Representatives.
In Tolentino vs. Secretary of Finance, the Supreme Court was asked to rule on a
question involving this, the subject of Tolentino vs. Sec. of Finance was a revenue bill because
the subject was value-added tax. It was a revenue bill so necessarily the bill should originate in
the House of Representatives as it did originate in the House of Representatives. A member of
the House of Representatives filed a bill on VAT to the House of Representatives. Barely a few
weeks after this bill was filed in the House of Representatives, a Senator also filed a bill on ValueAdded Tax to the senate. After the House of Representatives has approved this bill, sabihin natin
VAT-1 and lets call this VAT-2, the House of Representatives then sent VAT-1 to the senate.
When VAT-1 arrived in the senate, the senate did not take up, did not discuss but discussed VAT2 and approved VAT-2. And so class, Tolentino said because the senate approved VAT-2 in fact it
approved a bill that had been filed with the Senate directly, it was a bill that did not originate in the
House of Representatives, therefore there must be an infirmity, a constitutional infirmity in the
eventual law was passed by Congress. The Supreme Court said No. NO. There is nothing, what
the constitution requires is that these bills must originate in the House of Representatives but
there is no prohibition against the filing of any of these bills also in the Senate provided only that
the Senate shall not as a body take up or deliberate on that bill until the bill on the subject shall
have been sent or transmitted by the Housed of Representatives to the senate.
When the bill on the subject is transmitted to the Senate, because the Senate can
propose amendments to this bill that came from the house, the Senate can decide to substitute
the entire bill coming from the House with the bill originally filed in the senate. That is part of the
prerogative of the senate in so far as the right of the senate to propose amendments is
concerned. So pwede yan. In fact, this is what happened. We go to the end of the process
almost immediately noh. VAT-1 was approved by the house, VAT-2 was approved by the senate
and so there were a lot of differences on the versions approved by the house and the senate. So

114

what happened? VAT-2 was sent by the senate and VAT-1 was sent by the house to a bicameral
conference committee. The bicameral conference committee, we are talking about this in
advance, the bicameral conference committee is composed of the representatives of the senate
and representatives of the House of Representatives. They are tasked by their respective
houses to try to harmonize the conflicting provisions of the house version and the senate version.
And this is what happened to the VAT bill. When the bicameral conference committee, class
bicameral conference committee ha, when the bicameral conference committee finished with its
work, eventually another version came up. The bicameral conference committee approved a
third versionVAT3. Tolentino in that case, Tolentino vs. Secretary of Finance also included
this in the challenge and said tingnan niyo, what the bicameral conference committee approved
was different from that which was approved by the house, different from that which was approved
by the senate. This practice has institutionalized a third house of congress known as the
bicameral conference committee. There this is unconstitutional according to Tolentino. The
Supreme Court disagreed of course and said, this is a practice by bicameral legislatures all over
the world, the constitution of a bicameral conference committee to harmonize conflicting versions
of proposed legislations from the 2 houses. In any event, after the bicameral committee had
agreed on VAT3, VAT3 was returned to the house and to the senate and the house voted on
VAT3, only after the house and the senate approved VAT3, was VAT3 then sent to the President
of the Philippines for signature and for approval, which the President did eventually and so the bill
became law. This then, this enumeration simply says that the bill should originate of the House of
Representatives. There is no prohibition against, prohibition on the senate against taking up and
deliberating on a similar bill originally filed in the house. The only limitation is that the senate
must not as a body act or deliberate on that bill filed in the house until after the bill on the same
subject shall have been transmitted by the House of Representatives to the senate.
Once a bill is filed, when you file a bill, you file it with the Secretariat of the house
or of the senate as the case may be. Then it is there then it is numbered, numbering is done
serially on the basis of chronology whichever bill is filed first gets the lower number and so on.
Alright. Once the bill is filed and numbered, it is then calendared for first reading. The constitution
says, no bill shall become a law unless it has passed 3 readings on separate days. So, kailangan
the 3 reading must be on separate days. Alright, so upon the filing and then the numbering, the
bill is included in the order of business of the house or of the senate as the case may be for first
reading. What happens during the first reading? During the first reading, only the number and the
title of the bill are read afterwhich the speaker or the presiding officer refers the bill to the
appropriate committee. Class, the real work in Congress is done by the committee. Not many
people appreciate the work of the committee. But that is what is work horse, the real work horse
of the Congress are the committees. So refer to the committee. The committee has full discretion
on what to do on the bill. If the committee does not like the bill at all then the committee can kill
the bill. When the bill is killed, the bill dies. Ok. The committee may also consolidate bills on the
same subject. Consolidate all of them and eventually report out a consolidated measure. The
committee has also another option, the committee may disregard the bill filed and come up with
its own bill on the same subject and report out a committee bill. So, the committee may decide
also just to sit on the bill until adjournment 3 years there.and you file a bill, and that is your pet
bill, gusto mo maging batas, kelangan follow-up ka ng follow-up sa committee. Follow-up ka ng
follow-up sa committee para ma-ischedule ang hearing in the committee because the committee
conducts a hearing for that purpose. And the sponsor or the author of the bill is invited so that he
can explain before the committee what the bill is really all about because the members of the
committee go to the committee meeting, and the committee hearing and it is only in the
committee hearing that they see the bill for the first time. And when they see the bill for the first
time, sometimes they dont want to read the bill at all so they wait for the author to explain and the
ask a lot of questions. And then thats the time they propose certain amendments, additions or
whatever, instructions or whatever on the bill. Doon ang real work. Now, when the committee
approves, if the committee approves, if the committee approves the bill, then the committee shall
report out the bill. Report out ang tawag nun. Report out the bill to the house, normally it goes to
the committee on rules which will then calendar the bill for second reading. In the 11th Congress, I
filed a bill on political dynasties, to prohibit political dynasties. I went to the Committee hearings
religiously and after 3 or 4 hearings, we got the committee to approve the bill. We had to tame
down the language, etc. we had to agree to proposals na wag masyado striktuhan, ganyanganyan, ok na lang kami nun para lang ma-approve sa committee. The committee then reported
out our bill on political dynasties. I followed up with the majority leader in the committee on rules
asking him at that time to calendar this for second reading already. The majority leader at that
time was at that time Eddie Villas of Cebu and he said I agree with your bill completely. We
should have a law on political, prohibiting political dynasties. But we will not approve that bill. Let
us wit for a time when many of the children of the former Congressmen are absent then that is
the time we will discuss the bill. That is the only way we will have a chance. Eh sa dami naman
ng anak, asawa, etc ng mga Congressman, hindi naman sabay-sabay nag-aabsent. So hindi rin
mailagay sa, di ma-agenda ang aking bill. Sa awa ng diyos, si man lang, never saw the light of
day ng second reading. And so in the 12 th congress, we refilled the bill. We refiled the bill kasama

115

na yung mga suggestions ng committee nung una. Ito ngayon, this Congress that has adjourned
sa awa ng diyos di man lang nakapasa sa committee. Dun pa lang sa committee, naanuhan na,
naupuan na.
Alright, during the second reading this time not only the number and the title but the entire
bill is read already sa reading. And then a debate ensues. It is at that point when controversial
bills need sponsors who will defend the bill on the floor and who will answer all the questions that
the rest of the members of the house can think of noh. And it is there where, this is in so far as
plenary action on the bill is concerned. This is the most important part in plenary action on the
bill. Because this is when debate ensues. After the sponsorship and interpolation, then comes
the matter of amendment so proposed amendments of the bill and the sponsor or the author will
of course try accept whatever proposed there may be. Kung gusto niya o hindi, not accept basta
you go through the.. and then, at the end of all these, the house is asked to vote on the bill. Vote
on second reading. The voting on second reading is normally done only through viva voche vote.
Ewan ko. Ang iba sa inyo nakapanood nung part of the canvass ang ano nun e, alright, all those
in favor say II. All those in favor say neighneigh. Basta ang chairman lagi lang the Is have
it..ok. So panalo, maski pareho ang sigaw kasi yung iba mga tarantado rin diyan eh. Parehong
sisigaw, pag sabing I, I. Pagkatapos neigh, neigh rin sila. Ganun din ang ano. So ganyan.
The approval on second reading then at least guarantees that the bill in its final form will
now be printed. Printed in its in final form and copies of the bill shall be distributed to the
members of the house at least 3 days before the 3 rd and final reading. Then the 3rd and final
reading, babalikan nalang natin yung exception. The 3 rd and final reading, during the 3 rd and final
reading, only the title and the number of the bill are read afterwhich voting takes place. In both
houses of Congress today, the rules of the respective houses require nominal voting on the bill on
3rd reading. Para Makita, ma-iregister kung sino ang bumoto in favor, sino ang nag-away ng bill.
That is in American politics, that is important when a member of Congress goes back to his
constituency, his constituency normally evaluates his performance on the basis of his voting
record in Congress. How did you vote on this bill? Kaya nung itinake up nung third reading, takeup ng 3rd reading yung no smoking bill, putang ina kako if I vote no, masama ata yun. Kasi
parang ayaw ko ng clean air. If I vote yes to the bill, pano naman ako? So naninigarilyo, so
talagang putiks oh. Alam kong magbobotohan na, umalis nalang ako. Pumunta ako sa lounge,
merienda nalang ako dun hanggang natapos. Pag roll call Nachura. Wala. Absent. Ganun na
lang. Sometimes you do that nalang para..because the record will show how you vote. Isa-isa,
roll call vote yun eh. Roll call vote. So, once it is approved on 3 rd reading then the bill is sent to the
other house where it is supposed to undergo the same 3 readings on separate days.
Now, after the 2nd reading class, the requirement under the constitution is that printed
copies of the bill in its final form shall be made and distributed to the members of the house at
least 3 days before the 3rd and final reading unless the President certifies to the immediate
passage of the measure, of the bill, because it is intended to meet a public calamity or
emergency. Alright, so what does a Presidential Certification of the bill then mean? When the
President certifies the bill, the President is in effect telling Congress this is a necessary bill. This
is necessary and urgent. This is needed to respond to an emergency or an urgent situation in the
country so please pass the bill. The Supreme Court has said that when there is a presidential
certification to your bill, then you do not have to have 3 readings on separate days. All the 3
readings can be on the same day. There is no need for the printed copy of the bill in its final form
distributed at least 3 days prior to the 3 rd and final reading. You can distribute final copies on the
same day that you approved the bill on 2 nd reading and on the same day you cannot approve the
bill on 3rd reading. That is the effect of your presidential certification of the bill. Ang ano lang,
even as the constitution speaks of the certified bills, bills certified by the President, in order to
meet a public calamity or emergency, kung minsan kahit ano nalang bill, lalo na yung patapos na
ang session ng Congress, pati ang mga bills na converting a state college into a university
nailapit na kay Presidente, na certify rin ni Presidente. Ang iba run, kasi malapit na mag election
pirma naman si Presidente. Sige nalang kasi pinakiusap nag Congressman na ganito-ganito.
But there has not been any specific challenge raised to the Supreme Court regarding the truth of
a presidential certification. It appears then class that the President also has discretion whether or
not to certify a pending legislative measure. As I said, there has been no case decided by the
Supreme Court on this and no contest yet has been raised up to the Supreme Court.
Alright, so ganyan ano. This is precisely what happens now after the third and final
reading, then the bill is sent to the other house where it will undergo the same process. First
reading, 2nd reading, 3rd reading. In the event that there is alright, so here is the senate, the other
house has the power concur with amendments. Ikaw magpopropose ng amendment. May
amendments ang senate on the bill, that means that the senate approves a different version
because it has introduced amendments to the bill approved by the house. The bill will go up to
the bicameral conference committee. If you are the author of that bill, to avoid going up to that
bicameral conference committee, na maaring magtagal pa at maaring din a matuloy, you simply

116

go back to the house and say you accept the amendments introduced by the senate to the bill.
So that if the house approves it, then it is the senate version that becomes the final version of the
bill and it will the one to be sent to the President or vice versa, ganun rin yun. A bill originating in
the Senate passing through 3 readings then sent to the House of Representatives, meron ding
Yun lang, those are the only rules in the constitution and then of course once it is sent to
the President, well it is sent to the President duly certified by the Senate President and the
Speaker and the secretaries of both houses attesting to the bill duly approved sent to the
President. Now, when does the bill become a law? The bill becomes a law when or if the
President approves the bill. If the President approves the bill then it becomes a law. If the
President does not disapprove/approves, if the President does not approve or does not want to
approve the bill but he does not want to disapprove the bill, the President normally just lets the
bill, sets the bill aside and let 30 days pass. Because after the lapse of 30 days then the bill
lapses into law. So 30 days after receipt by the President of the bill from the 2 housesfrom
Congress, without acting on the same, then the bill becomes a law by merely lapse of timeby
the mere lapse of 30 days. Then of course class, if the President does not want or does not like
the bill, then the President vetoes the bill, President shall veto. However, even if the President
vetoes the bill, incidentally when a President vetoes a bill, the President has to write down her
objections to the bill and then sends the bill back to house of origin along with the veto message.
Despite the Presidential veto however, the bill may still become a law if Congress overrides the
veto. Overriding the veto will entail a vote of 2/3 of all of the members of the house where the bill
originated and then a similar vote in the other house 2/3 to override the veto. When 2/3 votes
is obtained in both houses, then the veto is overridden and the bill becomes a law. Kung merong
tanong lang, how does a bill become a law? sa bar pagkatapos 1% lang, so in all probability ito
lang ang hinihingi. Natapos na sa Congress, yung nasa Presidente nalang. Pero pag nakita niyo
how does a bill become a law ? 5%. Maybe the examiner wants you to go through the process
from the filing of the bill, etc. lahat.
Pero pag ako ang magbibigay ng tanong, isa lang. Enumerate the instances under the
constitution where a bill may become a law. 1% pwedeng yan lang pero kulang pa ito. Kulang ng
isa pa. Ahuh. Ano? Ay, I will not the accept the answer kung yan lang. 15 lang ng lang ang
question eh. I will give you a credit %. Yan lang tatlo? of 1% lang kayo. Why? When will a
bill become a law? Without the approval of the President, without any presidential action.
If there is a vacancy in the office of the President and Vice-President, at 10:00 in the
morning on the 3rd day at the time the vacancy occurs, Congress shall meet in special session
without need of a call because the constitution is what calls the Congress to sit and within 7 days
shall pass, repeal, a bill for the calling for a special elections. Elections which shall be held not
earlier than 45 nor later than 60 days from the date of such call. This bill shall be deemed
certified by the President, it shall be deemed certified by the President and after approval on third
reading by both houses, shall automatically become law. Automatically become law and the
special election shall not be postponed for any reason whatsoever. The reason class for this of
course is that there is only an acting President. When there is a vacancy in the office of president
and vice-president, you have only an acting President. If a bill calling for election swill still have to
be submitted to the President, to the acting President, in all probability the Acting President would
veto the bill because I am sure that he would only have started to enjoy you know acting as
President. He would like to delay the election for as long as possible. So iyan. That is the fourth
instance, the 4th situation when a bill shall becomes a law this time without the need of any
presidential action on the measure.
Alright, so that takes care of the plenary legislative power ah, of Congress. Yung limitations
lang ano ha, kasi constitutional provision talaga yun. Ok.
Power of Appropriation
Next, the power of appropriation. In the case of Philippine Constitutional Association
vs. Enriquez, the Supreme Court upheld the authority of Congress to identify the special subjects
where the alleged, the so-called pork barrel of Congressmen may be spent, this according to the
Supreme Court flows from the general power of Congress who under the Constitution is vested
with the power of the purse. Power of the purse.
In the celebrated case of, celebrated because it resulted in manual elections again, the
case Commission on Elections vs. Quijano-Padilla and Fotokina, the Supreme Court also
spoke of the need for the appropriation, the Supreme Court said that the Constitution provides
that no money of the public treasury shall be spent without a valid appropriation thereof. And so,
ano ang nangyari dun sa Supreme Court? Ano nangyari muna sa COMELEC? Congress
appropriated P1 billion for automation. Umpisa, but there was an appropriation of 1 billion.
Together with the savings, etc ng Commission on Elections, the Commission on Elections in fact,

117

the Commission on Elections issued a certification to the effect that there was available P1. 2
billion for the purpose. A bidding was conducted for automation, full automation of our elections.
The winning bidder so declared by the Commission on Elections was Fotokina. The bid
submitted by Fotokina was P6.38 billion, kaya sinabi ng Supreme Court, when the Supreme
Court decided that case and virtually invalidated, declared as invalid the award and the resultant
contract kasi precisely class yung COMELEC vs. Judge Quijano Padilla kasi Fotokina went to
court, RTC asking precisely for specific performance nga kasi nanalo na naman siya. May award
na etc. Natalo ang COMELEC dun. The COMELEC was ordered precisely to enter into a
contract already and ganyan ganyan. Ok. So the COMELEC went up to the Supreme Court, the
Supreme Court said tingnan niyo. How can the Commission on Elections enter into a valid
contract of P6.38 billion when the appropriation was only 1B and of course the entire amount
available was merely 1.2 Million? And so, the award itself has been cancelled and annulled
because you know very well class that a contract entered into by government or government
agency requires an appropriation that is substantive requirement, not only that there must be
certification to the effect that there funds available for the purpose. The certification showed that
the funds available was only 1.2 billion. How could the agency enter into a contract for 6.38
billion when it had only 1.2? Kaya ang sabi ng Supreme Court the bidding and awards committee
of the Commission on Elections should have rejected the bid outrightly for being exorbitant
because it had only 1.2 billion. Kaya nangyari yung ganun kaya din naman di natuloy ang
automation kaya maraming erasures and alterations dun sa ano. Alright.
Appropriation Law
What is an appropriation law? It is a law, the primary and specific purpose of which is to
authorize the release of funds from the public treasury. There are 2 kinds of appropriation law: the
General Appropriation Law and the Special Appropriation Law.
The General Appropriation Law is that which is based that law passed by Congress
based on the budget submitted by the President of the Philippines and it is intended for the
financial operation of government for an entire fiscal year. Special Appropriation measure on the
other hand is a law that authorizes the release of public money from the treasury for a specific or
given public purpose. There are implied limitations to the power of appropriation. There are 2:
the implied limitations are; first, the appropriation money to be released must be for a public
purpose. I think wala naman tayong problema diyan, for a public purpose. Second, the amount
appropriated must be determinate or must at least be determinable.
In the case of Guingona vs. Carague, when Guingona went to the Supreme Court to
contest the constitutionality of the provision of the 1990 general appropriations act authorizing the
appropriation of such amount, walang mention kung magkano, of such amount as may be
necessary for the payment of government of its foreign and domestic debts, payment of principal
interest, taxes and other banking charges due for the year on the domestic and foreign debts of
the Republic of the Philippines. So Guingona went up and said oh walang amount. Ni hindi
natin malaman ito. This violates, this implied constitutional limitation that the amount of the
appropriation law must be determinate. Determinateeksakto, eksakto ang amount. Or at least
determinable. Oh you must have that in obligations and contracts. Alright, sabi ng Supreme
Court, the amount even if not stated is still determinable because it is simply going to take a
arithmetical or mathematical computation to arrive at the amount. By simply adding whatever
part of the principal has to be paid for the year, the interest due for the year, the taxes that must
be paid and other banking charges. So, all that will be needed would be adding, addition lang.
Computation/ mathematical/arithmetical computation lang. So the amount is still determinable
therefore there is no constitutional infirmity in that provision.
In the proposed budget for 2004 which was never approved, the amount for debt service
exceeds 45% of the total national budget already and that is why when we said earlier that the
constitution says that the highest budgetary priority should have been education. Hindi totoo yun.
Education gets less than 20% sometimes education only gets 18% or even less than that. It is
debt servicing that gets the bulk of our appropriations, our general appropriations law but that is
something as the Supreme Court already said, valid naman daw ito. There is no constitutional
violation. But then, ganun lang everyone should be made to realize this because everyone is
pointing at the government and public and private sec ng gobyerno, foreign and domestic debts.
Ah..i dont know, there are perhaps some people here who are master of masteral degrees of
business administration. Master degrees on Economics or Finance, etc. But only recently, I
listened to some people who are supposed to know, who at least represented themselves as
knowing what the are talking about ano and they said that the money in the Philippines really if
you look at it and only about 18% of this, ay no the entire budget for government is only 18% of
the money that circulates in the entire country so its still private sector particularly private
business that has. So parang ang sinasabi nila things arent bas as it looks. As bad they look noh

118

but may pag-asa pa raw tayo. Ok. And so having elected an Economics, this certainly is better
than if we elected somebody else.
Alright, in the case of special appropriation measure the constitution itself comes in and
says there are 2 constitutional limitations on special appropriation law. First, the measure itself,
the law itself must provide the specific purpose for which the appropriation is to be spent.
Second, that law must be accompanied by a certification of the national treasurer that there are
funds available for the purpose. However, if no such certification can be obtained because there
really are no funds available in the national treasury for that specific public purpose, the law may
still be valid if the law itself contains a revenue measure. What do we mean by that? The law itself
must contain a provision to the effect that the money that will be spent for the specific public
purpose may be raised in this manner: the revenue measure/the appropriation law will contain
revenue measure designed to raise the money needed for that specific public purpose. I recall
nung mga, when we were students, mga estudyante pa kami nun dito there was almost flooding
already, pag umuulan ng malakas baha baha. So talagang the problem of flooding in Metro
Manila as a really problem even then. There was a law passed for the special appropriation law
precisely appropriating money for the massive flood control system that would solve the flooding
problem in the entire Metro Manila area. But there was no money for that purpose. The
appropriation law provided for the revenue measure. Alam niyo ang revenue measure provided
therein sa mga sine, all moviehouses were charged 25 centavos additional admission fee. And
that 25 centavos would go to this fund for the flood control system. Yun, ganun lang. So that
makes the law valid despite the fact it is not accompanied by a certification issued by the National
Treasury.
Limitations; Guidelines
Now we move on the constitutional guidelines or limitations on general appropriation
measures. First, the constitution provides that the Congress cannot increase the appropriation
recommended by the President for the operations of the government for that fiscal year. Why?
Because Congress cannot perhaps work on the greed of other government institutions by
promising that they will be getting more appropriation if a district of a particular congressman will
be given more projects than this particular agency or so on. So yun. Second, the form, content
and manner of preparation of the budget or the general appropriations act shall as prescribed by
law. No problem there. Third, no provision or enactment therein shall be embraced therein under
unless it refers to a particular appropriation or a specific item. So this is intended to prevent
riders in the general appropriation law.
Rider
A rider in a general appropriation law is a provision in the GAA that is, does not refer to any
specific appropriation item. It is as if were an irrelevant provision in the General Appropriation Act
and it is unconstitutional for such a provision to be included in the GAA. Fourth, the approval, the
procedure for the approval of Appropriations for Congress shall be the same as those for other
departments. This is to prevent what is known as sabrosa appropriation. Since its Congress
that approves the GAA, baka naman may itanatago ang Congress. Ok. Fifth, prohibition against
transfer of appropriations. So as a rule, transfer of appropriations is prohibited however the
constitution says that the President, the Senate president, the Speaker, the Chief Justice of the
Supreme Court, the Chairmen of Constitutional Commissions may by law be authorized to
augment their respective appropriations under the General Appropriations Law with savings in
other items in their respective appropriation. Madali lang yan. For example, ang lagi kong
example niyan yung Presidente. Youre speaking here for example of the Executive Department
of the President, ang buong executive department ito, so for instance there is a specific item for
repair of school buildings. But because of typhoons during the year, naubos na agad yung repair
fund na yan. After 6 months pa lang of the fiscal year, wala nang pondo. The President may
under such a law, there is a law, a Presidential Decree that is a valid law even up to now although
there was a portion there in that the Supreme Court declared unconstitutional. The President
may take savings from the Presidents Social Fund or whatever and transfer this, augment the
repair/school building repair fund from savings in other items in the appropriation for the executive
department.
Presidential Decree 1177 is a still valid law today even as the Supreme Court declared in
the case Demetria vs. Alba certain provisions in this decree as unconstitutional. What was
declared unconstitutional was basically that part of the law that would the President full discretion
in choosing which amounts may be used to augment other appropriation items even if the amount
that is used to augment other appropriation items, will not, are not savings. So yun. So this was
declared unconstitutional by the Supreme Court in the case of Demetria vs. Alba.

119

Alright, then of course class the prohibition against appropriation for sectarian benefit. We
took this up in connection with freedom of religion. We made reference of Aglipay vs. Ruiz,
Garces vs. Estenzo, we also mentioned of Maosca vs. Court of Appeals. In Maosca vs.
Court of Appeals you will remember this is the appropriation for the purposes of expropriating the
house and lot, the house where Felix Manalo, Founder of Iglesia ni Cristo, was born and so the
Supreme Court in that case said there is only collateral if merely incidental benefit derived by the
Iglesia ni Cristo. The main purpose of the expenditure was precisely valid. It was for public use
because Felix Manalo is already a historical figure.
Principle of Automatic Reappropriation
Alright, finally the principle of automatic reappropriation. When Congress fails to pass a
general appropriationoperations of government until Congress passes the current general
appropriations law. Today in 2004 we are actually using now is the 2003 general appropriations
act because Congress failed to pass the 2004 GAA. Now, dalawang concepts which came to the
fore in Philippine Constitution Association vs. Secretary Enriquez. The concept of
impoundment. Impoundment and the concept of budgetary reserves. Kasi nangyari ito nung
panahon ni President FVR. Nag impose sila ng budgetary reserves na 10% ng bawat ano, ang
budget mo for isang department halimbawa, halimbawa lang sa Department of Public Works and
Highways , when the term of office of President Ramos ended on June 30, 1998 yung budgetary
reserves lang sa DPWH mga P7 billion pa yun. Ang nakinabang nun si Presidente Erap na. Siya
na ang nagparelease ng..Anyway, impoundment is the term given to the refusal of the President
to obligate or to spend money appropriated already for whatever reason. There were a number
of instances during the last months of the presidency of precisely President Fidel V. Ramos when
amounts appropriated for some departments, executive departments were impoundedhindi na
ginastos. And then of course the matter of budgetary reserves under the Adminstrative Code of
1987, there is a provision that authorizes the President through the budget secretary not to
release in full the amounts appropriated for purposes of, to be called budgetary the amounts
reserved are called budgetary reserves. These are intended eventually to be spent, rather these
are intended to meet contingencies. However, if the economic outlook improves then this all be,
this will be released. Class, it in connection with the power of appropriation where we met the
term, it is connection with a case involved in appropriation where we met the term legislative veto.
Earlier we said that if the President disapproves a bill, then the President shall veto the same,
write down the reasons for the veto in what is known as the veto message and the veto message
is sent back to the house of origin and the house of origin then enter this in the legislative journal
and then decide whether or not to override the presidential veto. Class, the veto must be
normally, normally a veto is a veto of the entire law. As a rule, there is no partial veto allowed.
You cannot approve part of the law and disapprove part of the law except in appropriation,
revenue and tariff bills where a veto may be made of specific items in your bill. Provided
however, in case of appropriation measures or for that matter even revenue measures, it will be
the item, the entire item that will be voted not just a line in the General Appropriations Act.
Item Veto vs Line Veto
Distinction between an item veto and a line veto. And it was in the case of Philippine
Constitutional Commission vs. Enriquez where the Supreme Court discussed the matter of
legislative veto.
A legislative veto is a means by which Congress may block or modify administrative action
or executive action taken in the implementation of the measure. In the 1994 General
Appropriations Act, there was appropriated so much amount, billion, for the modernization of the
Armed Forces of the Philippines, modernization. However, the provision in the General
Appropriations Act on this modernization fund contained a proviso that this money cannot be
used whenever part of this money is used for any given expenditure in connection with the
modernization of the Armed Forces of the Philippines approval of Congress shall be obtained.
Note class, separation of powers. Congress makes the laws. Executive department enforces,
administers the laws. So after Congress has passed an appropriation law, the spending portion
will be done by the executive department. But here comes Congress saying ok, may kwarta kayo
para sa modernization niyo pero bawat gastos niyo kailangan may approval kami. Coconsultahin
kami, we have to approve everytime you spend from this money. This was vetoed by President
Fidel V. Ramos and this was one of the issues precisely raised to the Supreme Court in the
Philconsa case, Philconsa vs. Secretary Salvador Enriquez. Isa ito sa mga issues, the
Supreme Court said that provision is in the nature of legislative veto. A legislative veto therefore
is a means by which Congress may block or modify or interfere with the implementation of the
law by the executive department. The Supreme Court said the words, the language may be
negative or affirmative. Negative for example any expenditure for this amount appropriated may
however be disapproved by Congress.
Affirmative: any expenditure for the purpose of
modernization however shall be subject to prior approval by Congress. So yun. The Supreme

120

Court said there is doubt as to constitutionality of such provision because of the doctrine of
separation of powers. However the Supreme Court did not declare this unconstitutional. Ang
sinabi lang ng Supreme Court however such a provision should be contained in a separate
substantive law not in the GAA itself. Should be contained in a separate substantive law.
Therefore the veto made by President Ramos was held valid because this is an inappropriate
provision in the General Appropriations Act, considering that such a provision should be
contained in a separate substantive law.
Power of Taxation
Then class, the constitution speaks of the power of taxation dun sa pero master niyo na
naman yan then the power of investigative legislation. Twice asked in the bar exams already,
Bengzon vs. Senate Blue Ribbon Committee: what are the requisites when the Congress itself,
the houses of Congress, the Committees of Congress may conduct investigations in aid of
legislations? Pag malapit ang election maraming investigation in aid of reelection naman yun.
Alright, tingnan niyo ang nangyari sa Senado dun almost 1 whole year yun puro nalang
imbestigasyon-imbestigasyon kaliwa at kanan, puro imbestigasyon. Ang aming mga bills pending
dun di na na-approve. Hay naku. Ok, what are the requisites however for the validity of such
legislative inquiry or legislative investigation? One, the investigation must be in aid of legislation.
Two, the investigation must be conducted in accordance with duly published rules of procedure.
And three, the rights of the person affected by such investigation must be respected.
So in connection with in aid of legislation Bengson vs. Senate Blue Ribbon Committee
where the Supreme Court said that the basis of investigation conducted by Senate Blue Ribbon
Committee was the speech, the privilege speech of Juan Ponce Enrile, then Senator Juan Ponce
Enrile. The examination of the speech however showed that there was no intended legislative
measure at all. That Enrile simple wanted the Senate Blue Ribbon Committee to look into alleged
violations of the anti-graft and corrupt practices law. The Supreme Court said since the
investigation was not, did not have any legislative measure at all, no pending legislative measure
sought then it was not a valid legislative investigation. The Supreme Court also noted the fact that
the issues raised in the investigation, the request for investigation were already taken cognizance
of by the Sandiganbayan and the Supreme Court expressed the fear that if Congress, if the
Senate would come out early in its decision, such a decision might influence the Sandiganbayan
and vice versa, if the Sandiganbayan comes out before the Senate actually finishes its
investigation, the Senate could be swayed or influenced by the Sandiganbayan decision. But the
basic issue there was whether or not the investigation was one conducted in aid of legislation.
And the Supreme Court said no.
Legislative Investigation
The second requisite is that the investigation must be conducted in accordance with duly
published rules of procedure when the committees and Congress can/should comply with this,
these are published rules of procedure. Incidentally class, and then of course the rights of
persons affected thereby shall be respected. What are these rights? Were talking of
Constitutional rights. Form example, can a person called to this investigation invoke the right
against self-incrimination? Yes, of course. But he can invoke the same only when the question
calling for an incriminating answer is asked because such a person is called in an investigation as
a witness and not as a respondent for example. And so for example in the, in response to the
many questions asked Mr. Jose Pidal, he said he is not going to answer because he is invoking
the right to privacy. So yung mga ganun. And so they could not decide on whether Jose, the selfacknowledged Jose Pidal had the right to privacy. And that if the extent of this right to privacy
included not answering questions posed by the Senators in the conduct of the investigation.
Alright, note in this connection that the legislative bodies can punish for contempt and
theoretically at least, the Senate being a continuing body, continuing because there isnt a time
where there are no Senators, there are no incumbent senators in the Senate. The House of
Representatives is not a continuing body because the term of office of all members of Congress
terminate/expire on the same dayJune 30. Alright, theoretically the senate can for example
order the incarceration of a contumacious witness. In the Arnolf cases, the order was for the
witness who refused to answer the questions to be detained until for as long as he still refused to
answer questions, he shall continue to be detained. And the Supreme Court, intimated that this
can be done because the senate is a continuing body. Well of course class, if the detention
extends to an unreasonable length of time, considerations of due process perhaps equal
protection will have to be made and 1 may probably say that an extended incarceration owing
only to refusal to answer might infringe on the right to due process and to equal protection.
Incidentally class, the entire body of Congress, the entire house for example, the entire
Senate I think we mentioned already, the entire house or the entire senate may constitute itself

121

into a committee for purposes of investigating things in the exercise of legislative investigation. In
such a case, we call this the house sitting as a committee of the whole. Committee of the whole
body sitting in for purposes of investigation. Alright, then of course we have the question or,
under the Constitution it is provided that any member of the cabinet may at its own initiative with
the con, or upon invitation by the either of the houses of Congress with the consent of the
President, appear before the congress and answer questions relative to his department. Yung
procedure na advanced questions, release of questions to be asked will be furnished the cabinet
member in advance but the questions will not be limited to those that will be furnished him and
then when matters of national security are involved, the question hour may be conducted in
executive session.
Then of course, what your constitutionalists call the war-powers. What this entails really is
merely a declaration by Congress of the existence of the state of war. And you require a 2/3
votes of both houses of Congress.
Constitutional Powers of Congress
Elsewhere in the Constitution are found other constitutional powers of Congress. For
example in Article 7, you have the power of Congress as canvassing board in the Presidential
elections. You have the power of Congress to call special elections for President and VicePresident. You have the power of Congress to determine the physical disability, the extent of the
physical disability of a President as if they were doctors noh. Then of course, the power of
Congress to revoke or extend the effectivity of a proclamation suspending the privilege of habeas
corpus by a majority vote of all the members of Congress of both houses sitting together and the
members voting jointly. Then concurrence in presidential amnesties, proclamations granting
amnesty must be concurred in by a majority of all members of Congress. Concurrence in
treaties, we have the senate. Only the senate. The senate is required by a 2/3 votes to concur in
treaties. Then confirmation of the appointment of the Vice-President, when there is a vacancy in
the office of the Vice-president, the President shall nominate a member of Congress and such
nomination shall be confirmed by a majority vote of all members of the Congress, the 2 houses
voting separately. Well, Commission on Appointments confirming this. Ano pa? Then of course
Article 11 on the power of impeachment, Art. 12 on the special powers of Congress to prescribe
different rules on certain areas of investments. And then Art. 17, the power of Congress to
propose amendments in the Constitution. Or to call a constitutional convention for that purpose.
Ok.
THE EXECUTIVE DEPARTMENT
The President
So the President of the Philippines. The Executive power of the government is vested in
the President of the Philippines. What are the qualifications for President? Natural born Filipino
citizen, on the day of the election at least 40 years of age, able to read or write a registered voter,
a resident of the Philippines for at least 10 whole years immediately preceding the election.
Remember these are the same qualification for your Vice-President. Why? Because your VicePresident could at any time be your President.
Term of Office
Term of office, when elected at large by the people, by the vote of the people, the term of
office 6 years without reelection and the constitution provides that any person who succeeds the
office of the President and serves as such for more than 4 years shall not be qualified for election
to the office at any time. The Vice-President on the other hand may be entitled to serve as VicePresident but not for more than 2 consecutive terms. Then ano pa? yung oath of office, oath of
office you do not have to memorize this unless you intend to recite it in Luneta or in Cebu or
wherever you want to be inducted.
Privileges
The perquisites, the privileges of the President of the Philippines: the President has, is
given an official resident which is Malacaang. There attempts in the past to establish also
official residences elsewhere in the country, at least in Baguio, there is a summer residence of the
President of the Philippines. The mansion house. There were talks before about a former a
President who during his incumbency would have wanted to have a Malacaang in the north and
since the wife came from the South, and since the wife came from the south she also wanted a
Malacaang in the South. Now that President GMA is bent on really dispersing even the major,

122

the main offices of major departments, then perhaps she might need an office in Cebu. Afterall,
ang mga taga-Cebu ngayon ang mga bida sa lahat. Ok. Then of course class, salaries. The
salary is provided by law. It cannot be decreased during the tenure of the incumbent President.
Any increase however shall take effect only upon expiration of the term of office of the sitting
president or the incumbent President at the time the law was passed. The matter of immunity
from suit. We already spoke of this in connection with Soliven vs. Makasiar and we said that the
President enjoys from suit but in Companion case in Beltran the Supreme Court said that the
immunity from suit does not mean that the President cannot sue because this immunity is
personal to the President and the President may waive such immunity. In the case of Joseph
Ejercito Estrada vs. Gloria Macapagal-Arroyo Companion case, Joseph Ejercito Estrada vs.
Aano Disierto the Supreme Court said that this immunity cannot be invoked by 1 whose term
has expired or who is no longer President even if he is called to account for acts committed by
him while he was President of the Philippines. Although, where it is claimed that these acts are
acts outside his official function. This has to do with the institution of criminal cases against
President Joseph Ejercito Estrada. Alright. Then, well, yung Gloria v. Court of Appeals where
the Supreme Court said that even if the Secretary of Education is the alter ego of the President of
the Philippines, the Secretary of Education cannot claim the immunity that is granted to the
President because as we earlier said, the immunity granted is personal to the President of the
Philippines and it is not enjoyed by alter egos of the President of the Philippines.
Inhibitions and Disqualifications
Inhibitions or disqualifications, he is not supposed to, for the President cannot receive any
other emolument from the government or from other sources. Yung sweldo lang niya, kawawa
naman ang Presidente, yung sweldo lang hindi siya pwede from other sources. Magkano ba ang
sweldo ng Presidente? 100,000 per month. Siguro wala naman siyang gastos diyan sa ano. Next,
shall not hold any other office in government or outside government. Incidentally class, the
prohibition against receiving emoluments, additional emoluments, the prohibition against holding
any other office unless otherwise provided by the constitution , the prohibition against direct or
indirect practice of the profession, participating in any business or being financially interested
directly or indirectly in any contract with any franchise or special privilege granted by the
government including government-owned and controlled corporations as well as the prohibition or
injunction on avoiding, strictly avoid any conflict of interest of his office: all of these prohibitions or
inhibitions are applicable not only to the President but also to the Vice-President and applicable
also pursuant to section 13 of Art. 7, applicable to secretaries and undersecretaries of the
executive departments as held in Civil Liberties Union vs. Exec. Secretary. This is a special
prohibition that makes of the President and Vice-President, Cabinet members, and
undersecretaries a special class by themselves because this is different from Article 6, six or
seven of the Art. 9-B on civil service employees who are prohibited from holding any other office
in the government unless provided by law orthe Supreme court. Estrada acknowledged the
oath-taking of the President in his statement, he said that he was leaving the palace so that the
healing process could immediately begin, he said that he will be leaving the palace that he will not
shirk any call or challenge of public service again. Well yung mga sinabi doon, ang hirap lang ng
decision it did not only focus on those things, it also spoke of Angaras diary and lahat. Masyado
pang kumalat pang lalo, hindi lang focus kung ano, sinabi nalang, talagang nag resign, nag
resign yan kaya wala na, wala na. Wag na kayo ingay nang ingay dahil nag resign na kayo.
Tapos na. Mahirap yung trying to justify the going-out, nahihirapan kang lalo, and you come up
with arguments that are stilted. Kitang-kita pag binasa na pinilit na argument. Sayang e kung
ano. Alright, it is there. Its in Philippine jurisprudence. Wala na tayong problema diyan.
Temporary Vacancy; Rules of Succession
So itong temporary vacancy, class the rules on temporary vacancy found in the constitution
are rules copied from the United States. These are also the things in the US. The President
makes a written declaration addressed to the Senate President and the Speaker of the House,
that he is temporarily incapacitated. When the President of the Senate and the Speaker receive
this written declaration then the Vice-President shall act as President until the President sends
another written declaration that his incapacity has already terminated, in which case the President
will reassume the office of President. On the other hand, if the majority of the members of the
cabinet will submit a written declaration to the Senate President and Speaker of the House a
written declaration that the President is not physically able then the Vice-President will, unless in
the meantime the President also submits na hindi tama ang aking cabinet. Magaling ako. So he
takes over. But if within 5 days the majority of the members of the cabinet send a written
declaration again talagang may diperensiya yan. Then Congress will convene and within 10
days or if not in session in 12 days time will now vote on whether the President is physically
incapacitated or not. The vote of 2/3 of all of the members of Congress will say, well if the vote is
that the President is not physically fit, you need 2/3 votes of all the members of Congress. A
lesser vote will mean that the President is well, he is physically fit. This is really based on

123

American law on succession. Meron akong nabasa dun na libro, novel na, Presidente
naaksidente who became blind. And so the dilemma of course was, will he transmit to Congress
this written declaration that he is not physically fit to continue with the Presidency since he is
blind. Maganda yung storya, may mga ano, of course meron ding sex na ano, pero wag na yun.
Maski naman bulag na Presidente, mahilig pa rin. Tao yan eh. Oh eh, ang binabasa ko ngayon,
daladala ko sa auto yung the controversial Da Vinci Code ni Dan Brown. Those of you who have
not yet read, I will not tell you kasi sayang naman kung ma ano, istoryahan ko kayo. But this has
become an international run-away bestseller because the Catholic Church adversely to the Da
Vinci Code. This is a new book.
Powers of the President
Alright after these then, after the rules on succession we go to the powers of the President.
Constitutional powers of the President, the executive power. What is the executive power? The
power to enforce or administer laws.
In a 2002 decision in the case of Electrification Administration vs. Court of Appeals,
the Supreme Court spoke of this precisely as the power to enforce, execute, administer and put
into practical operation the laws passed by Congress. This is what executive power is. In a
recent decision involving the DENR Region 9 or Region 11 employees, Cotabato/Koronadal
Region 11 yan ano? The Supreme Court spoke of the power of the President under the
Administrative Code, the President is granted the continuing authority to reorganize the office of
the President. Although the Supreme Court distinguished there, distinguished the scope of this
authority with respect of the reorganization of the office of the President proper in Malacaang
and which is, and the Administrative Officer of the office of the President proper in Malacaang is
the executive secretary. Distinguish this from the Office of the president at large, on the whole
which includes all of the departments of government. While indeed the President has indeed
plenary authority to abolish, merge, consolidate offices, agencies and positions in the office of the
President proper, there are limits to the power of the President to reorganize all of these
departments, agencies, etc. but in that case also, the Supreme Court said that the President may
delegate this power to reorganize. The DENR offices for example in a region to the secretary of
the DENR.
Now, section 17 of Art. 7 mandates the president to faithfully execute the law. This is a
constitutional duty. The question has always arisen on the practical sphere: can anyone compel
the President to implement, enforce the law that the President does not want to enforce because
in the Presidents conscience the President believes that this law is unjust? Class, nobody can
compel the President to enforce a law. I mean, wala, there is nobody who can compel the
President to enforce the law kung ayaw ng Presidente. Lalo na kung medyo mataray pa yung
Presidente. Mabuti lang kung kasing bait lang ng Presidente natin ngayon. Alright. Hay naku. But
the question may probably arise, where the President of the Philippines refuses to implement, to
enforce or to execute a law, will this mean culpable violation of the constitution which will be then
be a basis of complaint for impeachment? That is possible. Now class, dito sa executive power,
that old case of Villena vs. Exec . Secretary, where., there is only one where all of the executive
powers of the government can be exercised by the President of the Philippines. Whether or not
granted to the President under the constitution or under the law as long as it is a power that is
executive in character then it can be exercised by the President of the Philippines. I dont think
that that is the correct rule now after Lacson vs. Roque, the Presidents powers are thus limited
to those granted expressly by the constitution or by law, those implied, necessarily implied
therefrom, those incidental to those power and those powers that are inherent to the President of
the Philippines. Of course, in Marcos vs. Manglapus, the Supreme Court spoke of residual
powers also that the President of the Philippines may exercise.
Power of Appointment
Alright, the power of appointment. Appointment as you very well know is the selection by
the authority having the power of an individual who is to perform the functions of a given office.
Appointment distinguished from designation, perhaps we can talk about that dun sa public offices
na. Designation, commission, etc. We focus on the Constitutional Provision. Well of course,
classes of appointments. An appointment may be classified into either a permanent or a
temporary appointment or another classification, applicable only to presidential appointments is
the classification of appointments into regular and ad interim appointments.
In the case of the classification into permanent and temporary, note that a permanent
appointment is an appointment extended to a person who possesses all the standard
qualifications prescribed by law for the position including the requisite civil service eligibility. The
appointment is, the appointee then acquires security of tenure. On the other hand, temporary

124

appointment may be extended to a person who fails to meet all of the requirements or lacks the
necessary civil service eligibility. The appointment is revocable at will with or without cause.
Note class, well briefly lang in a number of cases a designation is considered a temporary
appointment and so may be revoked at will. Note also, an ad interim appointment has been
classified as a permanent appointment. Class, even if this is the distinction, note that it is the
appointing authority who has the discretion not only in the choice of an appointee but also in the
character of the appointee, whether permanent or temporary. What are we saying? It is the
appointing authority who says ok permanent ang appointment mo. Except a permanent
appointment can be extended only to one who possesses all the minimum qualification
requirements including the civil service eligibility. That is the only limitation in the exercise of the
discretion to determine the character of the appointment. But even if you have 100 civil service
eligibility, and when you have 20 doctoral degrees and you apply for appointment in the
government and the President issues an appointment and the President says temporary ka
lang. Temporary ka lang because it is the appointing authority who determines the character of
your appointment. Ok. In much the same manner that it is the appointing authority who has the.
..that the only limitation in this discretion is that the choice of the appointee must be coupled with
the appointees meeting all the qualification requirements. Yung qsqualification standards for
the position to be filled up. When the appointee has all the qualification requirements and the civil
service eligibility then it does not matter where he comes from. He can come from the outside
coming in. He can come from a next in rank position. He can come from another government
agency. He can be many many ranks lower except of course that there are, in certain there is
presidential appointee wala yun. There are certain rules of the civil service na hindi ka pwedeng
ipromote na tatalon ka ng tatlong salary grades pero sa presidential appointees wala yun. Ok.
Regular and Ad Interim Appointment
Then of course the matter of regular and ad interim appointments. Earlier this afternoon we
talked about this already. We said a regular appointment is an appointment that is extended to a
person by the President ad the appointment is confirmed by the Commission on Appointments.
While an ad interim appointment is one extended by the while the Congress is not in session. It
takes effect immediately but ceases when there, if the Commission on Appointment disapproves
the appointment or bypasses the same it ceases. Again, an ad interim appointment ceases if
disapproved. If disapproved the appointee can no longer be appointed by the President to the
same position. Because in Matibay vs. Benapayo, the Supreme Court said that the disapproval
by the Commission on Appointments is final by the Commission on Appointments in the exercise
of the power of checks and balances. Ok. However if the ad interim appointment ceases only
because it had not been acted upon in the adjournment of Congress, then the President may
extend another ad interim appointment to the appointee. During the time of President Ramos,
when you of 2 persons appointed, o isa na lang, appointed to the Commission on Appointments
whose appointment was always ad interim kasi by-pass ng by-pass hindi man lang inaaksiyonan.
Mga 7 ad interim appointments yun until finally the Commission on Appointments said
nakakapagod na rin yung by-pass ng by-pass, aprubahan na lang natin. So inaprubahan.
Appointments Requiring Confirmation by the COA
Now, what..the classification of appointments into regular and ad interim refer only to
appointments which require confirmation by the Commission on Appointments. Under the
constitution, there are 6 classes of appointments that the President may make and only four of
this classes require confirmation by the Commission on Appointments. One, heads of executive
departments. Two, ambassadors, other public ministers and consuls. Three, officers of the
Armed Forces from the rank of colonel or naval captain. Captain in the navy. Four, officers
whose appointments are vested in the President under the constitution. Fifth, officers whose
appointments are not provided for in the constitution or in the law. No, not provided for in the
constitution or in law. And finally, officers whose appointments, officers yes who the law, whose
appointments are vested in the President by law.
In the leading case of Sarmiento vs. Mison, the Supreme court said only the first 4
appointments shall require confirmation by the Commission on Appointments. Only the first 4.
The rest of the appointments will not require confirmation. Accordingly class, when you talk about
the classification of appointments into regular and ad interim, it is a classification that can be
applied only to these 4 sets of appointments not to the other appointments. In the case of
Quintos-Deles vs. Committee on Constitutional Commissions, Commission on Appointments, the
Supreme Court said the appointment by the President of a sectoral representative requires
confirmation by the Commission on Appointments. Why? Because in the transitory provisions,
this is the basis, the transitory provision contains a section which says: until a law should have
been passed by Congress on the mode of selecting or electing sectoral representatives, the

125

President shall appoint sectoral representatives. The appointment of sectoral representatives falls
within the 4th group of appointments the constitution vests in the President the power to appoint
sectoral representatives.
Now, in the case of Sarmiento vs. Mison, the issue was, ano nga ang first name ni Mison?
Commissioner Mison anyway, Salvador, General Salvador Mison after he had retired from the
Armed Forces of the Philippines was appointed Commissioner of Customs and he assumed
office as Commissioner of Customs. A Member of the faculty of the San Beda College of Law,
two members of the faculty actually went up to the Supreme Court to challenge this appointment
because according to them there was no confirmation by the Commission on Appointments.
Sarmiento and Arcilla vs. Mison, the Supreme Court said only these 4 sets of appointments
require confirmation, it does not include, this list does not include the Commissioner of Customs.
Therefore the appointment of the Commissioner of Customs does not require confirmation. And
so in the case of Calderon vs. Carale where the challenge was on whether the appointment of
Carale as Chairman of the NLRC needed confirmation by the Commission on Appointments
considering the law reorganizing the National Labor Relations Commission specifically provided
that the appointment of the Chairman or the Commissioners of the NLRC requires confirmation
by the Commission on Appointments. The Supreme Court said, appointment of NLRC
Commissioners by law not in the constitution, and so number 6 dito lang sa 6th set of
appointment does not require confirmation by the Commission on Appointments. In fact, in Tarosa
vs. Singson, we already have discussed this, in Tarosa vs. Singson the result would have been
the same but the Supreme Court chose not to discuss and not to rule on the Constitutional
question after it had found a statutory basis for denying the petition. Because the issue in Tarosa
vs., Singson was whether or not the provision in the Central Bank Law, Bangko Sentral Law that
the governor shall be appointed by the President with the consent of the Commission on
Appointments was constitutional or not. It would have been declared unconstitutional following
Sarmiento vs. Mison. On the other hand class, in the case of Mary Concepcion-Bautista vs.
Salonga, Chairman of the Commission on Human Rights, ok Chairman of the Commission on
Human Rights under section 13 under Art. 13 of the Constitution, was Mary ConcepcionBautistas appointment as Chairman of Commission on Human Rights subject to confirmation by
the Commission on Appointments. the Supreme Court said No. Why not? The orig, if you look at
Art. 13, you will notice that there is no provision, the Constitution is silent on who will appoint the
Chairman and members of the Commission on Human Rights. Silent. Silent therefore the
appointment falls within the 5 th group of appointees and since not included in the first four there is
no need for confirmation by the Commission on Appointments. Note again what we said earlier,
the Commission must meet only when Congress is in session. It is supposed to act on
nominations and appointments submitted to it within 30 days. It decides by a vote of majority of
all its members. It is given constitutional authority to adopt its own rules. In the voting, the Senate
President shall not vote except in the breaking of a tie.
Power of Removal
Now since we are talking on the power of appointments, does the President have the
power of removal? Can the President those he appoint? On the general principles of law,
general, general, over general principles of law, the power of removal follows, yes follows the
power of appointment. However class, note first in the members of cabinet, members of the
cabinet while the President can replace them at any time, what happens if a cabinet member is
replaced is not removal but expiration of term. In the case of constitutional officers appointed by
the President from the Vice-President who may be appointed by the President subject to
confirmation by majority of the members of Congress to the members of the Supreme Court, to
the members and Chairmen of the Constitution Commissions to the Ombudsman, remember
these are presidential appointees but they cannot be removed except by impeachment.
Appointees made by the President to the career service in the civil service, cannot be removed by
the President of the Philippines except for cause and in accordance prescribed in the civil service
law. However class, the President has administrative disciplinary jurisdiction over these
appointees of the President. Appointees of the President even in the career service of the civil
service, the President has administrative disciplinary jurisdiction and so theoretically the
President may order the conduct of an investigation and depending upon the results of the
investigation exercise disciplinary jurisdiction over these appointees.
Constitutional Limitations on the Power of the President to Appoint
What are the Constitutional Limitations in the power of the President to appoint? First the
limitation against nepotism. Mas expanded ito. Expanded in terms of relationship but limited in
terms of offices. The spouse or relatives by consanguinity or affinity are cannot be appointed as
members of the Constitutional Commission, ombudsman, secretaries, heads and bureaus of
offices including government-owned and controlled corporations. Second, the appointments
issued by an acting President shall remain effective unless revoked by the elected President

126

within 90 days from assumption of office by the elected President. Number 3, 2 months before
the end of his election and up to the end of his term, the President cannot make appointments
except temporary ones to executive offices whenever continued vacancies shall prejudice or
endanger public safety. Please remember. And then of course, the Supreme Court decided that
this 3rd, the 3rd limitation on the Presidential appointing authority, this 3 rd limitation is what is known
as midnight appointments. Midnight. Why midnight appointments? because presumably before
the elections end up to the end of the term pawala na yung presidente. Ganyan. But the
Supreme Court said that this prohibition found in the constitution does not apply to local
executives. So mayors and governors may issue valid appointments even during the 2, no, even
during, just before the term ends. Of course, the appointments made 2 months before the
elections, the normal prohibition is 45 days before the election in the case of other government
offices. In the case of the President is 2 months before the elections and all the way up to the end
of the term.
July 15
Other Powers
Penalty of 20 years hard labor. The president can reduce this. The president can
commute the penalty. The president can even reverse the decision of the court martial. And
render a judgment of exoneration. That is within the power of a president. Now, my question in
the bar exams would have been something like this, 50 military personnel involved in what was
called oplan Sagittarius was charged to violation of the articles of war and of course conduct
unbecoming of officers of the armed forces of the Philippines. Conduct unbecoming of an officer
and a gentleman charged before a court martial duly created under the authority of the president
of the Philippines. The 50 members of the military establishment are exonerated by the court
martials. May the president reverse the decision of exoneration and declare them guilty and
impose a penalty of 10 years of hard labor? Explain your answer. One percent. Mga ganyan ang
ating dapat na mga tanong. Hindi yung mga, hindi yung mga enumerate the duties of a ship
captain. Mga ganyan dapat para magkaalaman talaga kung ano. Kung ano talaga. You see
class a funny thing happened. Something like this happened during the presidency of Gloria
Macapagal-Arroyo. You see class decisions involving the bill of rights are decision that continue
to harmonize conflicts between authority on the part of the government and liberty on the part of
an individual. Permeng yan ang clashing interests in cases like these, cases involving the bill of
rights. So in 1987 there was a so-called coup attempt, coup attempt including ah people
gathering at the Manila Hotel declaring something etc. Some military officers and men were
involved in this, they were charged before a military tribunal, a court martial. The court martial
came out with a decision that there was a liability of some kind. However they were all ordered
only to stay in the barracks. Return to barracks, wala ng ibang penalty. Ok. The executive
secretary at that time was not contented with the decision of the court martial. And so he
declared, aba hindi pa tapos yan, hindi pa tapos yan ah the decision of the court martial is subject
to review of the president of the Philippines. Because the court martial is precisely an agency of
executive character and is subject to the exercise of the power of control which the president
wields over the entire Armed Forces of the Philippines, as it were. The secretary of national
defense who, well ang nakakatuwa was the executive secretary who said that was a known strict
parliamentarian and a human rights lawyer all the time during the Marcos years. The secretary of
defense release a statement, o what is the executive secretary saying, that is not quite correct,
sabi ng secretary of national defense. He cannot impose a penalty higher than that which was
handed down by the court martial. To do that was to subject the military personnel to double
jeopardy. Ang nakakatuwa lang kasi the secretary of national defense was a known military man.
All his life he had been on the side of authority ngayon he mouthed liberty naman, sabi niya. He
was known as strict parliamentarian yung kabila, and he said authority, kelangan ang presidente
mag ano, nakakatuwa yung conflict na yun e. Pero president Cory Aquino did not rise to the
debate that hindi na pinabayaan na ni Cory Aquino. Hindi na pinakialaman yun. Yun the
secretary of national defense was at that time a general named General Fidel Ramos. The
executive secretary was of course, very well known strict parliamentarian, human rights lawyer by
the name Joker Arroyo. Tingnan niyo magkaiba. So isipin niyo yan. If such a question were
asked how will you answer that. Lintik naman. (phone call) Ayun kasi 2 beses ng tumawag, may
babayaran yun sa akin kaya ano kailangan dahil wala na akong trabaho ngayon. Tingnan niyo
naman kung maglecture ako, pitong oras para lang kumita, ang hirap pala kumita rito. Alright. If
such a question is asked since there is no specific jurisprudence that will cover this then ah
perhaps both answers, both sides will be correct. There is however an old decision of the
Supreme Court in a case involving congressmen who would appear as counsel for military
officers in a court martial. Under the 1935 Constitution, the prohibition against members of
Congress to appear as counsel was, that no member of the Congress shall appear as counsel in
a criminal case before any court without appellate jurisdiction. Alright. You will find, maybe you
dont have to read this now because there is an insinuation in that decision. That if such a case
should happen then the rule on double jeopardy shall apply. And that therefore the president
cannot convert a decision of exoneration by a military tribunal or a court martial into a decision of

127

conviction. Nakakatuwa ng konti, dalawang congressmen ang involved dito, ang petitioners. The
case is entitled Congress Manuel Concordia and Congressman Ferdinand E. Marcos vs.
Chief of Staff. They were congressmen at that time. Kaya lang hindi kitang kita not even an
obiter, parang as a matter of course incidental statement na parang ganun. You see class, I think
ah this has also been asked in the bar exams na in connection with foreign judgment or foreign
decisions ganyan na considering that there is a supposed to be an international standard of
justice in international law. And among the principles prevailing in almost all civilized country is
the doctrine of double jeopardy. Anyway, ganun lang yun I just wanted to tickle your imagination
just in case ano kasi alam niyo naman ano na hindi ako examiner kaya wala kayong ano. Wala
kayong problema doon, pero wag kayong makakasiguro dahil pagnalaman ko kung sino yung
examiner sabihin ko pwede bang itanong mo nga ito. Ok. So that is the first of the so-called
military powers of the president.
The second is the power of the president to suspend the privilege of the writ of habeas
corpus. When we were discussing section 15 of article 3, we deferred discussion on this portion
because we said we will take this up when we discuss precisely the military powers of the
president. Alright. It is the president who alone can suspend the privilege of the writ of habeas
corpus. And there are only 2 grounds for such a proclamation suspending the privilege. Namely,
invasion when public safety requires it and rebellion when public safety requires it. The phrase
when public safety requires it must qualify the invasion or the rebellion in order hat the
suspension of the privilege may be justified. Because if there is an invasion of rats, for example,
then there would be no basis for a proclamation suspending the privilege of writ of habeas
corpus. Alright. The Constitution requires however the president to inform Congress, personally
or in writing within 48 hours from the issuance of that proclamation. Even if the Constitution limits
effectivity of such a proclamation to not more than 60 days. It is within the authority of Congress
the proclamation. Although of course, it the Congress is not dispose in revoking the proclamation,
on the other side, on the other hand, Congress may even extend the effectivity of the
proclamation beyond the 60 day period upon a request made by the president and upon a vote of
majority vote of all the members of the Congress voting jointly this time. Voting jointly. And so
extension or revocation is within the authority of Congress. The Constitution also says, alam niyo
itong mga nakalagay dito, many of these are reactions against martial law, against the Marcos
experience. Alright. The Supreme Court is granted specific authority to entertain any petition
filed by any citizen contesting the validity of the proclamation. However as the Supreme Court
said in Panfilo Lacson vs. Perez, the inquiry that the Supreme Court can do with respect to the
proclamation is limited to the sufficiency of the factual basis. In an old case Lansang vs. Garcia,
in 1971 during the campaign period in 1971 when the liberal party held its proclamation party at
Plaza Miranda, the rally was broken up when 2 bombs exploded in the stage apparently thrown
by I dont know, whoever threw it. Some people died almost all the senatorial candidates of the
liberal party were wounded. A number of them very very seriously. One of them for example who
was almost clinically dead when he was brought to the hospital was Jovito Salonga. Ninoy
Aquino was not yet there, he was supposed to arrive a little bit later. Salonga apparently never
recovered completely from his wounds. In fact up to now I understand that his body still contains
a lot of shrapnel inside because the doctors could not pick them out individually sa dami ng
pumasok sa katawan. And a yes of course if you will notice the fingers of Jovito Salonga were
cut, decapitated. For example his forefinger on the right is short now because they could not find
his missing finger, the found ah yung parang end na lang kaya yung ang dinugtong dito kaya
maiksi na. Ayon, tsismis lang yun. This was followed by another bombing of a store in Carriedo,
malapit lapit din sa ano. Because of these bombing incidents president Marcos issued a
proclamation suspending the privilege of the writ of habeas corpus. Somebody went up to the
Supreme Court to contest the constitutionality, the validity of the proclamation issued by Marco.
The case was Lansang vs. Garcia. The Supreme Court said, the Supreme Court in that case
rejected the decision of the Supreme Court made in 1924 and muchlater. In the case of Barcelon
vs. Baker and Montenegro vs. Castaeda the Supreme Court had declared that the president has
full discretionary ability to determine whether or not there is invasion, insurrection, meron noon
insurrection or rebellion. Which will justify the suspension of the privilege of the writ of habeas
corpus. And this determination in those 2 cases, according to the Supreme Court, this
determination made by the president of the Philippines is a political question and therefore the
Court cannot inquire into this proclamation.
In Lansang vs. Garcia the Supreme Court varied, modified the ruling. And said of
course it is the president who has discretion to determine whether or not there is invasion,
insurrection or rebellion because after all it is the president who receives reports from intelligence
sources and from peace officers, everybody. Ok. However we disagree, sabi ng Supreme Court,
that this is entirely political question. We declare, sabi ng Supreme Court, that court may make
an inquiry into the arbitrariness of the act proclaiming the suspension of the privilege of the writ of
habeas corpus. The only inquiry is whether or not the issuance of the proclamation was arbitrary
because the factual basis was not there. Arbitrariness lang daw. Ngayon, today even without this,
this specific provision because of the definition of judicial power that includes the determination of

128

whether or nit there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction. The inquiry can still be made. But the framers of the Constitution wanted to be very
sure kaya inilagay lang talaga sa Constitution that the court can inquire into the factual basis of
the proclamation. Ok. And then of course class the Constitution comes in and says the offenses
that may be affected by the suspension of that privilege shall be limited to rebellion and offenses
inherent in or directly connected with invasion. Not just any offense can be covered by the
proclamation suspending the privilege. And then anyone, according to the Constitution pa rin,
who is arrested and detained must, well judicial charges must be filed against anyone who may
have been arrested or detained for anyone of these. Anyone of these offenses otherwise he shall
be released. So kitang kita nga. And then of course class the Supreme court ah rather the
constitution also speaks of the right to bail not being impaired even if there is a suspension of the
privilege of the writ of habeas corpus. All of these are reactions to the Marcos experience
because in 1971 or it was in 72 already when Lansang vs. Garcia was decided by the Supreme
Court. When the Supreme Court modified the earlier decision in Montenegro and in Barcelon.
When martial law was proclaime in September of 1972 subsequent decisions, Morales vs. Ponce
Enrile, Bongcupa vs. Ponce Enrile, reverted to the Barcelon vs. Baker and Montenegro vs.
Castaeda decision. In the Enrile cases, Boncupa, Morales, the Supreme Court sad totally
discretionary, political question ito. Pagkatapos sinabi pa dun sa decision. When martial law is
declared automatically the privilege of the writ of habeas corpus is suspended and automatically
the right to bail is suspended. O tapos ka, tapos lahat. Kiaya nakita niyo na iniisa isa ng, many of
those who were in the Constitutional Commission also experienced the hardships during the
Marcos years so reactions talaga ito. Anyway, iyon. So ganun lang. Since limitado na rin ang
effect. Una limited ang time ng effectivity. Pangalawa limitado ang offenses covered by the
proclamation. Pangatlo obligado na na mag-file kaagad ng court case. Hindi na kamukha noon
na detained for walang, no limit at all and then the detaining officers just have the discretion also
when to file the judicial cases and then sometimes hindi na nalalaman kung saan napunta yung
mga disaparasidos that we talked about in the case of Dizon vs. General Eduardo. Alright. Ang
importante lang recall section 15 of article 3 in relation to this. Even when the privilege of the writ
of habeas corpus is suspended you may still file in court a petition for habeas corpus. Of course
with greater reason can you file, should you file if the reason for the detention is the for the
offense of rebellion or any of the offense related to invasion. But even if the offense if these,
rebellion or any other offense related to the invasion, note that if the petition is sufficient in form or
substance then the court will still issue the writ directed to the officer detaining another to produce
the body of the person being detained at a given place, at a given time and there to explain why
this fellow is being detained and to submit to whatever it is that the court may order. However of
the fellow subject of the writ is being detained for rebellion or any of the offenses related to
invasion then in the return all that is necessary is to indicate that the fellow has been arrested and
is being detained for any of thee offenses and that since after all the court will take judicial notice
that there is a proclamation suspending the privilege of the writ of habeas corpus. Remember
only that when a writ of habeas corpus shall have been issued by the court under ordinary
circumstances, it is obligatory for the officer who is detaining another to whom the writ is
addressed to comply with the writ under pain of contempt. Ok.
Then of course the power to place the Philippines or any part thereof under martial law.
The framers of the 1987 Constitution have been very very careful in saying that martial law here
does not mean the take over of military authority. The civilian authorities and the civilian agencies
shall continue to function even as the military is asked to help support these civilian authorities,
maintain peace and order and so on. Kaya waterdown na masyado itong martial law under the
present Constitution. And of course the president is subject to (phonecall). Ok. So yun.
Next constitutional power of the president is the pardoning power. Since you have
mastered already criminal law, bakit mainit? Ano mainit ano? Alright. Since you have mastered
already criminal law and then of course you know all these already. Pardon, commutation,
reprieve, amnesty, remission of fines and forfeitures. Remission of fines and forfeitures, kasi
kung fine lang ang ano tapos yung remission of forfeitures would of course be included in the
pardon depending on whether the pardon is plenary or partial. Whether it is conditional or
absolute. Alright. For our purposes, the important things to remember from the standpoint of
constitutional law are first the discretion vested in the president of the Philippines. Nobody can
compel the president to issue a pardon. Even when in certain cases some courts already
suggests that a pardon be extended by the president. In the case of People vs, Legracia in that
case of rebels who had set up an armory in the Eurocar sales office in San Juan which was
raided by the government forces due to the height of the so-called coup de etat or rebellion in
1989. the Supreme Court scolded the judge, the trial judge, because the trial judge already
suggested that it is perhaps proper for the president to extend a pardon. The Supreme Court
said it was malapropism for this trial court to recommend a pardon even as the decision was one
of conviction. Because of course the Supreme Court recognizes the discretionary authority of the
president in the matter of extending pardon or exercising this executive clemency. The second
point for our purpose in Constitutional law is of course to look at the constitutional as it were. The

129

limitations to the exercise of the pardoning power of the president. First, the president cannot
pardon a person declared or found guilty in an impeachment case. Ok. No problem there.
Second no pardon shall be issued in favor of a person convicted of violation of election
laws unless there is a favorable recommendation made by the Commission on Elections. Third,
note that a pardon may be issued only after a final conviction. After the judgment of conviction
has become final. In People vs. Salle the Supreme Court has said that under the 1987
Constitution it is no longer possible for the president to issue a pardon prior to final judgment of
conviction. This is because noon, before the 1987 Constitution, in the case of Monsanto vs.
Factoran, the Supreme Court acknowledge that there was a valid pardon even as there was a
pending motion for reconsideration filed by the accused before the Supreme Court. Motion for
reconsideration na ito when the petition for certiorari was denied. Sabi ng Supreme Court, the
effect of the pardon was, when the pardon was issued and accepted by the accused, the accused
automatically abandon her motion for reconsideration. With the automatic abandonment of the
motion for reconsideration then the judgment of conviction became final, therefore the Supreme
Court said the pardon was valid. But now, apparently the Supreme Court has rejected this and
today even the board of pardons and parole have been already directed not even to start the
processing of any request for pardon until after there is a final judgment of conviction. Alright.
Fourth, a pardon shall not relieve a person for any of liability for legislative contempt. Because of
course legislative contempt is ah an offense committed against the legislative department. The
president has to respect separation of powers. Nor even against a person found of civil contempt
because the Supreme Court said there is no state policy that is affected. Number 5, a pardon
shall not relieve a convict of civil liability. Of course, because after all civil liability does not goes to
the state it goes to the offended party. Finally a pardon shall not restore public offices forfeited. If
Monsanto vs. Factoran was modified by People vs. Salle in that no pardon can be valid unless
there has been final judgment of conviction atleast Monsato vs. Factoran is still a valid case law
with respect to the principle that a public office cannot be restored by a pardon. What happened
in Monsanto vs. Factoran? An assistant city treasurer of a southern city was charged before the
Sandiganbayan for violation of the anti-graft law. Consistent with the provisions of the anti-graft
law, after the filing of the information, the prosecution filed a motion for preventive suspension of
the public officer which was granted. After trial, the Sandiganbayan convicted the accused. The
accused went up to the Supreme Court on certiorari. The Supreme Court dismissed the petition
for certiorari. The accused then filed a motion for reconsideration. While the case was pending
reconsideration with the Supreme Court, Malacaang issued a plenary and absolute pardon in
favor of the accused. On that basis everything became academic. Pardoned na. The public
officer, the accused went to the secretary of finance and asked that she be reinstated. The
secretary of finance issued an order of reinstatement effect as of the date of the pardon. The
public officer, the accused, went back to the secretary of finance and said the reinstatement
should be retroactive effective as of the date she was preventively suspended by the
Sandiganbayan. The secretary of finance could not decide this. Only somebody close to
Malacaang could have obtained a plenary and absolute pardon. While the case was still
pending with the Supreme Court. Syempre takot din yung secretary of finance. Mukhang
malakas na tao ito so kelangan anohin natin. So the secretary of finance washed his hands by
sending this to Malacaang asking Malacaang a legal opinion on when the reinstatement should
be deemed effective. Unfortunately the EDSA revolution overtook this request in Malacaang.
Nagbago,after EDSA revolution, Cory Aquino became president. The people in legal in
Malacaang were changed atleast for the top people. Fulgencio Factoran Jr. was deputy
executive secretary and it was into his hands that this request was submitted and so Factoran
decided that you are not entitled to be reinstated at all. And so the accused went up to the
Supreme Court to contest this decision of Jun Factoran. The Supreme Court upheld Factoran and
said conviction for a violation of the anti-graft law carries with it the accessory penalty of
disqualification. If indeed the pardon was issued after the judgment of conviction had become
final upon the finality of the conviction, there was automatically the imposition of the accessory
penalty of disqualification. And so at that point there was termination of official relationship.
Termination. When the pardon was issued even if it was plenary and therefore erased the
disqualification not only the imprisonment but also the disqualification was erased by the plenary
character of the pardon extended. That only relieved you of the disqualification because you
were already as it were out of the service. That plenary pardon made you eligible to be appointed
again. But you are not eligible to be automatically reinstated. So yun and so the SC said the
pardon shall not restore the public offices already forfeited. In this particular case, the accuse
mat therefore be reappointed but there is need for a new appointment in order for a return in the
government service. Ang problema niyan which was also answered in Sabello, after this the
Supreme Court decided the case of Sabello vs. DECS. Parehong pareho ang ano but this time
principal public school principal so hindi na siya humingi ng reinstatement. Nagmakaawa na lang
na reappoint na siya because he knew then already because in view of the decision, the earlier
decision of Monsanto. So naki-ano siya na I-reappoint na lang total may pardon naman siya,
reappoint him because anyway he was already old the reappointment was necessary so that he
could already retire and avail of retirement benefits after all he had more than 30 years of

130

government service in the department of education already. So iyon. Tarantado rin naman yung
appointing authority he was..
Went to court on that basis. The court for humanitarian consideration said that
appointment should be to a position substantially equal to that which you are occupied at that
time you are suspended and convicted. After all magreretire rin naman itong taong it etc. So
thats it. Now class, although clearly an a topic for public officers t this point Id like you to
understand that even in the administrative structure the president may also exercise the power of
executive clemency. So that a person who has been ordered dismissed form service in an
administrative case may also be given executive clemency and therefore be eligible for
reinstatement or for a new appointment. Or where the penalty is less than dismissal from the
service if the penalty is suspension or whatever it is within the authority of the president of the
Philippines to remit this penalty. If it were for example suspension of 1 month or the equivalent of
one month salary as fine pwedeng remit ng president yan in the administrative structure where
there is such a finding on administrative disciplinary case. I would like you to look at Garcia vs.
Commission on Audit kasi ito, ito ganito ang nangyari dito. A lowly employee in the department of
public works na involved sa mga anomaly anomaly na mga ghost delivery, mga ghost something
etc. and so administrative case and a criminal case was filed against him. Mabilis ang
administrative case. Found guilty, dismiss from service, dishonesty. Isa lang ang penalty ng
dishonesty, dismissal from service. Dismissed already from service and he still has to face a
criminal case against him. Tuloy pa rin ang criminal case. Pagkatapos ng criminal case, the court
said acquitted. He is acquitted not on reasonable doubt he was acquitted because the court was
convinced that he has not committed any wrong at all. On the basis if this, humingi siya ng
executive clemency on the administrative case. The president issued such an order of clemency.
And so asked to be reinstated. He was reinstated but the reinstatement was effective only as of
the time re returned to work. He went to court asking that he should have been paid for salaries
earlier and the Supreme Court decided this in his favor. And said clearly ito, walang kasalanan
na tinanggal as found by the court. That reinstatement should retroact to the date he was
dismissed form service. Maganda ang kaso nito, magandang maganda para sa public official
and employees. Maganda ang pag ano ng Supreme Court dito na kailangan ibalik, iretroact. The
reinstatement should retroact the date he was dismissed. Alright. So that yung mga distinction
between plenary and partial, absolute and conditional, master na master niyo na yan. Isa lang on
the matter of conditional pardon kasi under your and inyong mastery of criminal law tellsyou that
violation of a conditional pardon is itself also a criminal offense. So ok. As an ordinary condition
to a conditional pardon, the pardonee must not commit any other offense during the period
remitted, period of imprisonment that is remitted by a conditional pardon. So that if the penalty is
for example 6 years of imprisonment and after having served 3 years a conditional pardon was
extended, remitted therefore was the other 3 years. 3 years pa ang dapat i-serve niya. If he
commits an offense, we go to the early decision, early it mga 1986 in the case of Torres vs.
Gonzales, Gonzales here is Neptalie Gonzales Sr. when he was secretary of justice, because he
was the first secretary of justice of Cory Aquino when she became president of the Philippines.
Ok. He committed an offense on the basis that ___ a report that he committed an offense the
secretary of justice ordered his recommitment because this is an option. You need not be
prosecuted for violation, derecho na lang you go back. Go back sabi ng secretary of the justice.
Go back and serve the unexpired portion of your sentence. Ok. He went all the way up to the
Supreme Court. Ang sabi niya, ano ito? I am being made to serve the remitted portion because I
am supposed to have committed a violation. What violation did I commit? I committed a violation
because I committed another offense during this period na 3 years na remitted. But I am
presumed to be innocent under the Constitution. Is it not necessary that I first be convicted of this
offense before I am considered to have violated the condition under that pardon because there is
a Constitutional presumption of innocence. The SC said no, there is no need for you to be
convicted. When you accept the conditional [pardon you a re entering a contract with the
president of the Philippines. By entering that contract, you give to the president of the Philippines
the authority to determine whether or not you have really committed a violation of the conditions
attached to the pardon. And an administrative findings made by the president of the Philippines is
sufficient for that purpose so that you can be ordered recommitted to serve the unexpired portion
of your sentence. Section 64 daw of the OLD revised administrative code is constitutional sabi ng
Supreme Court. I read the decision very well because there is a dissenting opinion here. The
dissenting opinion written by Isagani Cruz. Isagani Cruz dissented, he was in favor of the
pardonee, he insisted that no person can be held liable in committing an offense until he is
proven guilty beyond reasonable doubt because of the constitutional presumption of innocence.
And so ayon and sinasabi niya, yun ang sinabi ni Isagani Cruz, dapat yun muna ang mangyari
before he is deemed to have committed a violation to a condition attached to the pardon. Yun.
Alright. So ang isa na lang dito na kailangan tingnan ang amnesty. Ang amnesty, first the
requirement of a majority vote of all the members of Congress as concurrence in an amnesty
proclamation. But what was asked twice in the bar exams already was the ruling in Vera vs.
People. The question asked in the bar exams, and madali, isang sentence lang must a person
who wishes to avail of the benefits if an amnesty proclamation admit guilt, admit that he is guilty
of the offense remitted under the amnesty proclamation, why? The Supreme Court of course said,

131

yes, he must admit. Yes he must admit that he has committed the offense because if he had not
admit the offense then there is no reason why he should apply for the benefits under the amnesty
proclamation. Yun. Alright yung mga iba pa katulad ng parole etc. and distinction between
amnesty and pardon you have mastered that completely in criminal law. Especially the distinction
na pardon looks forward while amnesty looks backward. I dont see this at all, but anyway yun
ang sinasabi naman dyan.
Next the so-called borrowing power of the president. That the president may contract or
guarantee foreign or domestic loans on behalf of the republic of the Philippines with a rpior
concurrence of the Monetary Board. Masakit sa loob isipin yung mga utang. Ok. Ganun na lang,
just read the Constitutional provision. There is also a mandate to the Monetary Board a list, a
report of this to Congress.
Then the diplomatic power. Actually hindi nga ito, kasi ang nakalagay dito no treaty or
executive agreement shall be valid unless concurred in by atleast 2/3 of all of the members of the
Senate. Siguro yung isa dyan na Eastern Sea Trading wag na lang. Itong case of Bayan vs. ano
yun, it had to do with ah visiting forces agreement, VFA. Class, yon. Ang punto ng Bayan
ganito, we entered into a visiting forces agreement, an international agreement with the United
States. We asked our senate here to concur with this visiting forces agreement and we had to
have 2/3 of all the members of the Senate agree to VFA. However, and sabi ng Bayan, in
America hindi naman pina- concur sa kanilang senado. Anong klase ito paring hindi tayo pareho,
hindi tayo pantay kami rito we went to the senate, kayo lang ang naguusap usap dyan. Hindi
man lang ano ganun ang kanilang pasok. So the Supreme Court said it is not necessary in the
first place as far as we are concerned this has already been concurred in by the senate. We
cannot compel the United States of America to submit this to a concurring or a ratification process
of that character.
THE JUDICIAL POWER
Then class and this is a potential source of a bar examination question on the matter of
the tenure of the members of the judiciary. First, justices of the Supreme Court can be remove
only by impeachment. Ah well, first of course the constitutional provision, members of the
judiciary, judges, justices shall serve during good behavior until they reach the age of 70 or
become incapacitated to perform the duties of the office. So 70 is the compulsory retirement age
of the members of the judiciary. In the case of the members of the Supreme Court, they can be
remove only by impeachment.
In Re Raul Gonzales, the same Raul Gonzales who was a member of the Congress, he
was then tanodbayan. Ito ang story nito. Tanodbayan siya. When Cory Aquino assumed office
Raul Gonzales was appointed tanodbayan. And then of course tanodbayan siya ok lang because
the tanodbayan was almost the Ombudsman nung unang panahon. But after the 1987
Constitution was approved then it was ratified as you can see the constitution speaks of the
tanodbayan being merely a special prosecutor. Iba ang Ombudsman and since Cory Aquino took
a long time in appointing an Ombudsman yung mga ginawa ni Raul Gonzales like filing criminal
information etc when filed with Sandiganbayan were not accepted because the Supreme Court
rendered a decision that all of these filed by the office of the Ombudsman should be signed by
the Ombudsman. Pero wala pang Ombidsman so wala pang pipirma di lahat natambak lang dun
kay Raul Gonzales yung kanilang ginagawa wala pang pipirma. Raul Gonzales was medyo
napika o nainis. Nagtawag ng ano si Raul Gonzales nagtawag siya ng presscon ipinakita niya na
may mga request sa kanya, mga justices, ayaw niya lang ipakita ang pangalan. And then since
there were some complaints against justices of the Supreme Court he sent copies of these
complaints to the individual justices concerned requiring them to comment.
Comment
preparatory to the conduct of the preliminary investigation. Not just 1 justice of the Supreme
Court received this, marami raming justices. Those who received this, submitted this letter to the
tanodbayan to the Supreme Court and gawin ng matter. Let this be a matter to be taken up by
the Supreme Court officially. Kaya in re Raul Gonzales ito. Kasi si Raul Gonzales ang nakapirma
as tanodbayan. What did the Supreme Court say, the tanodbayan cannot require a justice of the
Supreme Court to file a comment to this so-called complaints. Why? Because if they file a
comment this may be a preparatory to a preliminary investigation to be conducted by the office of
the tanodbayan. The preliminary investigation could lead to a filing of a criminal information to
the sandiganbayan. If such criminal information is filed before a sandiganbayan and the justice of
the Supreme Court is convicted, then he will be removed from the court. That is unconstitutional
because the Constitution says that he can be remove only by impeachment. Therefore all those
who are complaining against the Supreme Court justices should wait until the Supreme Court
justice is impeached. After he is found guilty of impeachment then you can now file your criminal
cases against the justices. This ruling was also used by the Supreme Court in a number of

132

cases, in atleast 2 cases for disbarment filed against Aniano Desierto. When Aniano Desierto
was Ombudsman. Ano ang argument of the Supeme Court dismissing those petitions for the
disbarment of Desierto. Desierto is the incumbent Ombudsman. Under the Constitution the
Ombudsman, the person appointed to the position of Ombudsman must be a member of the
Philippine bar. This requirement of being a member of the Philippine bar continues for the
duration of his tenure as Ombudsman. If he is disbarred he ceases to be a member of the
Philippine bar therefore he can no longer be an Ombudsman. He has to be removed as
Ombudsman. That is unconstitutional, because an Ombudsman can be remove only through an
impeachment. Impeach him first and then disbar him afterwards. Ganun ang mga argument nila
dyan sa mga impeachable officers. Alright now, in the case of justices and judges of lower courts,
note that the Supreme Court has administrative not just disciplinary jurisdiction over them.
Incidentally class, before of this disciplinary jurisdiction over the justices and judges of the
judiciary, the Supreme Court in Fuentes vs. Ombudsman Mindanao said if there is a complaint
received by the office of the Ombudsman against a judge. It is incumbent for the office of the
Ombudsman to refer the matter to the Supreme Court not to take action on this complaint against
the judge. Because it now appears form the manner that the SC has been deciding cases like
this that the disciplinary authority against the members of the judiciary is vested exclusively in the
Supreme Court. And so no other disciplinary action can be taken against the justices or judges
except by the Supreme Court. The of course, yung decision nila dyan, that the penalty to be
imposed on the erring judge is dismissal from his service that the Supreme Court must decide the
case en banc. Majority of the members who participate in the deliberation and who vote thereon
but it is to be decided en banc where the penalty to be impose id dismissal from the service or
separation from the service. Then of course class on top of this, recall that the Constitution also
prohibits Congress from passing a law which will reorganize the judiciary if such a law impair the
security of tenure of the members of the judiciary. Even as in De Llana vs. Alba, the supreme
court spoke of the constitutionality of BP129, this is still being used. You still use BP129 in your
remedial law. A number of constitutionalists feel that if something like BP129is passed today, that
may be declared unconstitutional. Because there maybe an infringement of this prionciple of
impairment of the security of tenure of the member of the judiciary.
Salaries
Then class the matter of salaries. Salaries are fixed by law and shall not be diminished
during their tenure. However class the Supreme Court in the case of Judge Nitafan vs.
Commissioner Tan declared that the salaries of judges and justices shall now be subject to
payment of income tax. This is a reversal of an old decision id the case of Indencia vs. David
the S said that imposing a tax on the salary of judges would be an unconstitutional diminution of
the salaries of the justices and judges. Now no more. This is no longer an unconstitutional.
Periods for Decision
Finally class the matter of the periods for decisions. The periods prescribed are
maximum period of 24months for the supreme court, 12 moths for other collegiate courts and 3
months for lower courts. Marami na masyadong mga judges ang napagalitan, fined, etc pinagretire, pinag-resign, pinag-ano because of failure to comply with this. Note only that were the
court were, the judge fails to render a decision within a time framed there is no effect at all on the
jurisdiction of the court over the case. This does not affect the jurisdiction at all. This becomes a
personal liability of the judge. Meron akong isang kaibigan who was appointed RTC judge in the
province. Ganun din katulad ng ano, yung kay ano naman kay presiding justice Garchitorena
ganun pala karami ang hindi niya nagawang decisionjs medyo ano yun e. In the case of this
friend of mine, tumambak din yung hindi niya nagawan ng decision and so there is a regular audit
conducted by the office of the court administrator on judges nakita ng representative ng court
administrator. Ang excuse ng judge arthritis kasi it was very difficult for him daw to write out a
decisions dahil yung kamay niya namamaga, masakit yung kanyang likod, masakit yung kanyang
shoulders, etc. Ang diperensya nun dahil may nagcomplain na party litigant na matagal ng
naghihintay ng decision. E kinunan pala ng picture si judge nung party litigant na yun na laging
nagbo-ballroom dancing so iyon he was sanctioned. Atleast he was not removed. He was
sanctioned, imposed a fine etc. and then warned of course. So class ayon ang maraming
maraming masyadong cases na decided by the court but should really be taken up not in
Constitutional law anymore but in judicial ethics yung cases ng discipline of judges by the
Supreme Court. Where for example the Supreme Court even use the principle res ipsa loquitur.
Pero hindi na ito ditto sa Political law hindi na sa Constitutional law yan. Ang mga masyadong
marami yan because there are really also a number of judges maybe lacking not lacking in
competence but maybe lacking in integrity. Yun. Kaya I dont know, ako yung akin na lang
tinitignan dan kamukha ng judge dito na lang sa South ano Metro Manila pa rin one of the
Southern cities na nakipagaway sa kapwa judge ng dahil lang sa mesa. Nag-aagawan kung sino
ang kukuha ng mesa na yun, nakipag suntukanay isipin mo nga yan. Pero ganun lang. And thn
of course there are judges na talaga naming mainitin masyado ang ulo. Well we have one case

133

in unreasonable searches and seizure na judge pumunta after a meeting in a restaurant pagbalik
sa kotse wrap ipinasok sa ilalim ng kanyang car seat when he was arrested in flagrante
apparently. And the Supreme Court said valid. Valid arrest, valid search. So that takes care of
the judicial department.
July 15-July 16
A reinstatement of these employees whose positions were ostensibly abolished and
ordered the board members to pay by way of damages the 200+ employees whose positions
were abolished. Yun, marami yan marami yan. Ang mayor halimbawa who vetoed an
appropriation ordinance intended to pay the salaries of an employee with the mayor aware that
that amount was to be used in payment of the salary, there was clearly a clear showing of bad
faith on the part of the mayor and the mayor was held personally liable in damages. So, yan.
Now, asked in the bar exams already yung presidential immunity from suit. Wag na yun alam na
alam na naman ninyo yun. Asked in the exams already is the three-fold liability rule. When by an
act of a public officer attended by malice, bad faith, gross negligence or when the act is beyond
the authority granted to him by law, it is possible that the public officer may be held liable civilly,
criminally and administratively. Each of the proceedings may proceed independently of one
another. And so that is why we have the three-fold liability rule. Three-fold kasi tatlong beses
civil, criminal and administrative. And then class, of course, recall that dismissal of the
administrative case will not result in the automatic dismissal of the civil or administrative case.
Each one may proceed independently of the others. An old case, National Police Commission
vs. Judge Lood in Pasig, policemen, policemen were charged. They were charged before the
National Police Commission at that time and before the CFI in Pasig, Rizal. As always the
administrative case came first and was finished first and the policemen were found guilty and so
they were ordered dismissed from the service. In the criminal case, the court acquitted the
policemen. So after their acquittal they demanded reinstatement as policemen. NAPOLCOM
refused to reinstate. The policemen went back to court, filed a motion asking the court for an
order, order directing, because of their acquittal, an order directing the NAPOLCOM to reinstate
the acquitted policemen. The court ordered, issued the order. And so NAPOLCOM went up to the
Supreme Court on a petition for certiorari and the Supreme Court said the judge was in error
when the judge ordered the reinstatement of the policemen. Because relief from criminal liability
does not necessarily carry with it relief from administrative liability. Of course in a more recent
decision, the Supreme Court even went forward and said note only the degree of evidence, the
quantum of evidence that is required while what is required in a criminal case is proof beyond
reasonable doubt and in an administrative case youre required only substantial evidence.
Accordingly these are 2 different proceedings so ok. Then finally class, the matter of command
responsibility because we have been hearing so much about command responsibility before the
elections and the even long before that siguro. Command responsibility simply says kung from
our perception and from our understanding a superior public officer should be held liable for the
unlawful acts of his subordinates because he is supposed to be in command, he is supposed to
answer for whatever it is that his subordinates do. But that is not at all correct. Because under
the administrative code, a superior officer shall be liable for the unlawful negligent or malicious
acts of his subordinates only if he authorized in writing the doing of such an act. There is no such
thing as command responsibility except perhaps in the military. Alright.
Ah rightsbukas na lang tayo niyan. Rights and then termination of official relationship and then
well continue with elections tomorrow. We will discuss first class the constitutional provisions on
the Commission on Elections. So please rise for prayers. In the name of the Father..(cut)
NATIONAL ECONOMY AND PATRIMONY
Private Lands
After that class, the matter of private lands. The constitution provides that except by
hereditary successions private lands shall not be transferred or conveyed to persons,
corporations or associations not authorized to own lands of the public domain. Ok. So the basic
principle first. The basic principle first. Private lands cannot be sold except to Filipino citizens.
Cannot be conveyed except to Filipino citizens. Ang ah PhilBanking Association vs. Louie
Chey (?) is authority to the principle that when a Filipino sells a private land to an alien the
Filipino can later recover, recover that land from the alien. Because in PhilBanking vs. Louie
Chey the doctrine of pari delicto was abandoned. Before PhilBanking the rule was, the Filipino
who sold his land to an alien cannot recover because he himself has committed a violation
against the same. Noon, before PhilBanking only the government may recover that land from the
alien. But now, but because of the PhilBanking case, the Filipino seller can recover from the alien
buyer. Ok.

134

Next, the rule that land tenure is not essential to the enjoyment of the freedom of
religious profession and worship. So that an alien who claims to have a church of his own and to
have followers cannot as a matter of right demand that he be allowed to buy land on which to
erect the church. Because land tenure is not necessary to the enjoyment of religious freedom. In
the case of a corporation sole, you mastered this of course in the corporation law already ano, in
the case of a corporation sole, the citizenship of the corporation sole is not the citizenship of the
bishop or the high priest. The citizenship of the bishop or the high priest immaterial. It is the
citizenship of the majority of the faithful, the majority of the members of the church or the
members of the corporation sole. So yan. So the citizenship of the bishop who wishes to acquire
land is not material. Is not material. However o be entitled for the corporation sole to acquire
private lands it is necessary to show that majority of the faithful are Filipino citizens. While it is
true class that a Filipino buyer can sell rather can recover from an alien, a disqualified alien buyer,
the land that the Filipino owner had sold however if in the meantime prior to the action of recovery
the alien have become a naturalized Filipino, then the Filipino owner, the former owner cannot
longer recover the property. Because now, the owner is Filipino. According to the Supreme
Court there is no longer any public policy issue involved. Even if the alien buyer is remains an
alien if prior to the action for recovery the alien had sold the property to another Filipino the
original Filipino seller can no longer recover from the eventual Filipino buyer because then this
would be, he would be qualified to own lands, private lands under the constitution. Alright.
However who may be allowed, when may an alien be allowed to own private lands in the
Philippines? First by hereditary succession. Hereditary succession however in this case refers to
legal succession. Not a testamentary disposition. Not a device in your last will and testament.
What are we saying class? The alien heir should have inherited the land, the private land either
through non-testamentary succession, no will, legal succession or as part of the legitime to which
he is entitled. If the testator from the free portion of his estate devices a parcel of land to an alien
that device is unconstitutional. And the conveyance made through that device would be invalid.
But if if the heir who is an alien receives this as part of the legitime or receives this because there
was no last will and testament as an as a compulsory heir to the person who had no will, then that
is the exception, hereditary succession. Second, the constitution provides that a Filipino, a
former Filipino, a natural born Filipino citizen who loses Filipino citizenship shall be entitled to own
land in the Philippines.
Under the 1973 constitution it used to be own residential land in the Philippines because
this was an invitation precisely to a lot of Filipinos, former Filipinos, who had lost Filipino
citizenship abroad. Today under Republic Act 8179, a former Filipino, natural born Filipino citizen,
who lost Filipino citizenship may acquire lands in the Philippines up to a maximum of 3,000 sq. m.
o 5,000..5,000 sq. m. of urban land and up to 3 hectares or rural land. Kung 3 hectares na ang
iyong rural land pwede ka ng mag-farm. Hindi na lang residential tsaka kung 5,000 sq.m. an g
lote mo sa ano sa urban center pwede ka ng magtayo ng ano ng coliseum. Anyway ah but even
this class will have to be understood also in light of our current predisposition to really grant
former Filipinos a lot of privileges and rights. Yun lang reacquisition of Filipino citizenship by
those who lost Filipino citizenship by reason of naturalization abroad ano na ito indicative of this.
The third exception class is in the case of American citizens, the transitory provisions of the 1973
constitution, contained a provision to the effect that Americans who may have acquired title to
lands prior to July 3, 1974, hold valid title to such lands as against private individuals. Class,
history in 1949, July 4, 1949 the parity amendment to the 1935 constitution took effect. Under the
parity amendment, American citizens were supposed to be given the same rights as those Filipino
citizens with respect to exploration, utilization, enjoyment of natural resources in the Philippines.
This was of course a reciprocal agreement, in that Filipinos also could acquire, could be entitled
to exploration, utilization of natural resources in America. Except that this happened in 1949
katatapos lang ng giyera, walang kwarta ang mga Filipino on the other hand ang mga Americano
marami so sila ang nagano dito. Anyway, ah a lot of Americans on the basis of that parity
agreement, the parity amendment, a lot of American acquired, bought lands in the Philippines and
of course, the Americans were given titles because the impression then was that if they can even
mine, if they can engage in fishing, if they can engage in all the other things regarding natural
resources then they can also own lands. So binigyan sila. However, in the case of Quasha, the
Supreme Court said that the parity amendment does not confer upon American citizens the right
to own lands in the Philippines. This is really a reiteration of an old decision of the Supreme
Court the case of Crivenco vs. Register of Deeds. So pero marami na, by the time Quasha, by
the time the Quasha ruling was handed down marami ng Amercians ang may titulo. The
government did not go around looking for each and canceling this. So anong nangyari? Up to
1973, the 1973 constitution precisely recognized that the 25 year period under the parity
amendment would expire on July 3, 1974. Tapos na ang parity amendment. Tapos na ang
effectivity ng parity amendment so wala na. Pero what happens to the Americans who were able
to acquire titles? Thats why the 1973 constitution came in and said they hold valid title as against
private citizens not as against government. And so only government may therefore go after them
and seek the cancellation of their respective titles. Accordingly class when private land is found

135

to be in the hands of a disqualified alien, what are the remedies against the disqualified alien.
There are 3 known remedied. First, escheat proceedings. Escheat proceedings are proceedings
initiated by the Republic of the Philippines through the Solicitor General for the purpose of
recovering private lands that may be in the hands of disqualified aliens. The second action is an
action for reversion. Reversion. If it is shown that the private land was formerly alienable land of
the public domain, then the director of the land management bureau pursuant to law may institute
an action in court for that private property to be reverted into alienable land of the public domain.
That is why it is an action for reversion.
Finally, an action for recovery. Recovery to be instituted by the former Filipino owner
against the alien holder of land, the disqualified alien who holds the land. Also again based on
the PhilBanking vs. Louie Chey ruling. Based on that ruling that pari delicto does not apply. Ok.
Then class read the other provisions in article 12, including the provision for preference for
Filipino labor, preference for locally made products, it is time that we love our own. Yung mga
colonial mentality na ano mahilig sa imported na anolocally made products etc. Then class
tingnan niyo yung practice of the profession, you know that very well of course Filipino citizens
although of course the law may provide for the conditions where an alien may be allowed to
practice profession in the country. Then class the matter of monopolies and then combinations in
restraint in trade and unfair competition. Unfair competition and combination in restraint in trade
are expressly prohibited under the constitution. But monopolies are not expressly prohibited. The
constitution speaks of regulation or prohibition of monopolies. That is why in certain areas of
human activity there are still monopolies recognized. Even in the matter of arrastre, for example,
some people have been able to corner the en
In the case of Tatad vs. Garcia and the companion case Lagman vs. Secretary of
Transportation, the Supreme Court invalidated the law on oil deregulation. Saying that the law
actually engendered the creation of an oligopoly in the petroleum industry in the country. Dati
yung big 4, controlling the entire oil industry in the country. So the supreme Court declared as
unconstitutional that law on oil deregulation. Congress had to pass another law which
unfortunately was not so much better than the first. Anyway today, owing to this oil deregulation
policy you have a lot of new players so to speak in the oil or petroleum industry and so it is not
uncommon for you to see gasoline stations that no longer belong to the top 3. Meron ka ng kung
ano anong fuels, kung ano anong pangalan dyan. And because of the opening precisely of the
industry, because of the deregulation. Pero in Tatad, since that had reference to the old law,
apparently under the old law, the cards so to speak were stock in favor of the big oil corporations,
shell, Caltex, dito sa atin may Petron tapos madalas din mag-ano, madalas din mag-increase
keysa mag roll back so iyon.
Ok I just would like you to go back to Taada vs. Angara which we discussed in
connection with section 19 of article 2 on the declaration of the Supreme Court that this did not
violate the policy statement in section 19 of an independent and dynamic economy Philippine
economy effectively controlled by the Filipinos. Even as the World Trade Organizations General
Agreement of Tariffs and Trade we allowed for the entry of foreign products in the Philippines
without so much tariff. This brings me to something na hindi ko ano like for example you go to
Rustans you buy lamb chops, buy 1 take 1, so that a kilo of lamb chops cost eventually P100 or
even less. These lamb chops are imported from New Zealand and from Australia. What happens
to your local livestock industry when you cannot buy beef at less than P200 per kilo and yet you
can buy imported lamb chops at virtually half the price. You go to Rustans and other
supermarkets and you see chickens imported from South America dressed chicken, sometimes
mga ano na puro breasts, lang puro drumstick etc. at prices higher than the price of local
chickens. These are all effects of the WTO-GATT. You import Vietnam rice and Vietnam rice even
though imported still sells at process higher than locally produced rice because of the high cost of
production for our farmers who are not given enough governmental support, walang irrigation,
walang farm to market roads, walang available na fertilizer, walang available na certified seeds
etc. So your farmers costs of production are too high and so Vietnam rice comes in cheaper than
locally produced rice. Anyway class, the Supreme Court could not have possibly declared the
Philippine ratification or concurrence in the WTO-GATT agreement as unconstitutional because
that would have place the Philippines in hot water e international trade, in the international trade
community so ganun lang. Wala tayong magagawa doon. Pero maybe maybe we really should
look more deeply into this ah. Kaya ako sorry na lang kayo dahil you are a captive audience for
me now, hindi naman kayo maaaring hindi makinig dahil maaaring may sabihin akong tip para sa
bar. O di sige in the meantime you have to listen to these things and these are the biases that I
have. And so pasensya na lang kayo dyan, you are listening to my biases but ah many of you
may agree with me that there are things that have to be changed. There are lot of things that
have to be change in fact. Ok. And then so tingnan niyo na lang after that ay di na naman. The
Central Bank the central monetary authority, you already have a law on the Bangko Sentral and
you have mastered this already in mercantile law.
SOCIAL JUSTICE AND HUMAN RIGHTS

136

trying to eradicate or to erase social, economic and political inequalities as well as

cultural inequalities ay talagang wala ka ng ano doon, those are motherhood statements again.
Then go to specific provisions on labor, you have mastered that of course, on agrarian reform we
have taken this up twice over already, on provisions on urban lands and housing reforms we have
also discussed this in connection with eminent domain and then look at the other provisions there
on women, on ah peoples organizations particularly. Alam niyo kung kung nagging examiner ako
ang isang tanong ko doon, define a peoples organization as a yes.
Now what we really should look at is that final provision on the Commission on Human
Rights. There is a Commission on Human Rights established under the constitution to be
composed of a chairman and 4 commissioners. There is no provision at all on how and who will
appoint them and consistent with the ruling of the Supreme Court in Sarmiento vs. Mison as well
as in Mary Concepcion-Bautista vs. Salonga, the appointment shall be made by the president
of the Philippines however since this is not in the class of the first 4 sets of appointment which
requires the consent of the Commission on Appointments the appointment of a commissioner or
the chairman, it does not need confirmation by the Commission on Appointments.
On the powers of, the powers of the Commission on Human rights, when we were talking
about immunities in connection with the right against self-incrimination, we said that the
constitution vests in the Commission on Human Rights the power to grant immunities.
Incidentally if I should forget about it later, ummm its better to talk about it now, the PCGG in its
charter also have the power or the authority to grant immunities. We said that the authority
granted to the Commission on Human Rights to grant immunities is authority to grant
transactional immunity which means that a person whos testimony is compelled so that the
Commission on Human Rights may be able to arrive to the truth of a certain matter under
investigation shall be immune from criminal prosecution from any offense to which his testimony
refers. More importantly of course is the case of Cario vs. Commission on Human Rights. In
Cario vs. Commission on Human Rights the Supreme Court said that the Commission on
Human Rights does not have the authority to exercise quasi-judicial powers. Class, in Cario vs.
Commission on Human Rights we have the story of the public schools teachers in Manila who left
their classrooms and stage their demonstrations, a public assembly, in front of the palasyo del
gobernador where secretary Cario used to hold office. Cario, as secretary of education
terminated all of these teachers. A number of them even went on to make even public their
protest. Some of then even held a hunger strike at the foot of Jones Bridge at the foot of the
National Press Club Building. But Secretary Cario was not deterred basta matapang si
secretary Cario. Some of the teachers filed cases against Cario with the Commission on
Human Rights because according to the teachers, the actions of Cario including the dismissal of
the teachers was a violation of Human Rights. The Commission on Human Rights assumed
jurisdiction over the cases filed against Cario and ordered Cario to answer kasi nag-iisue din
ng parang restraining order ang Commission on Human Rights. Cario went to the Supreme
Court. The Supreme Court the Commission on Human Rights is not a quasi-judicial body.
Therefore it does not have quasi-judicial powers. It cannot therefore adjudicate it has only
examining or investigatory or fact-finding powers. The power to examine, to investigate or to
inquire in to the existence of facts does not constitute quasi-judicial powers.
Accordingly since it is not vested with quasi-judicial powers it cannot issue orders in the
nature of temporary restraining orders. It cannot issue orders by the nature of injunction because
it does not possess quasi-judicial powers. Hanggang ngayon that is one of the frustrations of the
Commission on Human Rights this ruling of the Supreme Court in Cario. And so sinasabi dyan
na ano including yun ah LLDA cases noon, the Commission on Human Rights cannot even issue
orders in the nature of an injunction. And then in the case of Simon vs. Commission on Human
Rights, the Supreme Court said very explicitly the ejectment of squatters does not at all violate
human rights. To go back to Cario class di ba yun na ang nangyari. Because of the ruling in
Cario vs. Commission on Human Rights the teachers who went on strike and have been
dismissed felt that they really had no remedies anymore, they went to court and individually while
some in groups, did go to courts. The Supreme Court, the Court of Appeals muna ah a number of
cases reduced the penalty of dismissal of service to suspension. In some the court even said that
ah minimal suspension or even only a censure would be sufficient. So a lot of the teachers who
were dismissed were reinstated. But of course when they asked for back salaries they were not
granted back salaries because they were not exonerated. The penalties were simply reduced.
And so kasama na yun isa isa yung mga Lisan, yung Dela Cruz yng mga Jacinto even as some
of the later cases raised also the question of the right to assemble and petition the government
for redress or grievances which in Dela Cruz vs. CA was answered by the Supreme Court in this
wise yung sinabi natin na you were not punished for expressing, for assembling for assembly or
for petitioning the government for redress or grievances. You are punished for having been
absent from your classes without just cause and being absent from you classes you denied your

137

school children their right ti education and the right of the children to education is atleast equal to
if not superior to the right to assemble and petition the government for redress of grievances.
EDUCATION, SCIENCE AND TECHNOLOGY, ARTS CULTURE AND SPORTS
Alright then article 14 class on education, basta ngayon ah we will finish all this and then
we will finish all of the administrative law and then we go home. Bahala na kung anong oras kayo
matapos ng administrative law. We will finish administrative law today so we have ah only 3
subjects to finish next week. Education basahin niyo lang. Basahin niyo muna and constitutional
provisions dyan sa education dahil kung minsan ang examiner merin ano dyan. Alright. Notice
the very first section speaks of the right of the people to quality education.
And that the
corresponding obligation, quality education at all education and the corresponding obligation of
the state to provide access to these education. Quality education at all levels. In the matter of
access we call this universal access to education. Yet the Supreme Court said, kaya nga yung
Tablarin vs. Gutierrez on the constitutionality of the NMAT, the supreme court said yes, this is not
a violation on the right of the people to quality education at all levels because this is intended
precisely to protect the people against mediocre medial practitioners. The case of the Philippine
Merchant Marine School on the failure of the school to provide adequate facilities and failure to
comply with standards this may be a ground for the department, for the government to issue an
order for the closure of the institution. There is a provision in article 14 with the title, with the
heading Constitutional Objectives of Education. If you are preparing to take the licensure
examination for teachers you should memorize that. But since you are to take the licensure
examination for teachers there is no real necessity to memorize it. But if you have already
memorized thats alright do not unmemorize. Then class yung mga basic lang doon, basic na on
ownership, Filipino citizens corporation 60% Filipino owned except in the case of educational
institutions established by religious groups or mission boards. Control and administration.(cut)
caters only to alien students. And the constitutional provision that no group of alien
students shall exceed 1/3 of the total number of enrollees except in educational institution
established precisely for foreign diplomatic personnel and their dependents. Then the tax
exemption granted to schools including the tax exceptions that may be granted to grants,
endowments, donations as long as all these are actually, directly and exclusively used for
educational purposes. The of course class the matter of optional religious instructions which we
already discussed. The use of public elementary and high school classrooms for optional
religious instruction provided that there is an option in writing made by the parent or guardian of
the pupil or the student. Instructions shall be made during regular class hours by instructors
designated by the gospel or religion to which the child belongs and that no other expense will
have to be incurred by the government other than the use of public elementary and high school
classrooms. The finally class, the matter of academic freedom. Academic freedom, the normal
concept of academic freedom has always been yon, from the standpoint of the institution, from
the standpoint of the member of the academe but of course there is an aspect of academic
freedom that should be viewed also from the standpoint of the student. Alright. From the
standpoint of the institution, the institution traditionally has been given the right to determine what
to teach, how it is to be taught, who will teach and who will be admitted to study. Which brings us
to a relatively recent decision in the case of Miriam College Foundation Inc. vs. Court of
Appeals.
The Miriam College Foundation case involves the imposition of certain administrative
sanctions by the administration, by the management of Miriam College over students who were
members of the staff of the school organs of Miriam. The staff apparently published an issue of
the school organ of Miriam College na medyo bordering on the pornographic, you know Miriam
College is a college of ladies ah puro female school ito. Except that my, ah hindi na ngayon ano,
hindi na. It used to be, its not anymore, its coed already. Pero ang mga babae na editor at and
kanilang mga ano ng kanilang school organ yun ang ano. And so the school imposed disciplinary
sanctions, they went to court. No no they the students were not supposed, the students went to
court and so Miriam was compelled to take them back. Miriam went all the way up to the
Supreme Court. The Supreme Court acknowledge that there is a law, the campus journalism act,
which provides among others that the student shall not be made held liable simply on the basis of
what he or she may have written in the school organ. Nonetheless the Supreme Court said this
law does not mean that the school cannot impose administrative disciplinary measures for
violations of reasonable rules on conduct which the students in fact committed. Alright. Then of
course from the standpoint of the members of the academe. A teacher, member of the faculty
who is given full freedom for research and inquiry and full freedom to express his conclusion
either through publication or through instruction in class wi9thout any interference at all from
political or religious authority nor from the administrative authorities of the school except only if
these conclusions or methods are found by a body of his peers to be grossly incompetent or
contrary to professional ethics. We have a 2002 decision, the case of Camacho vs. Coresis

138

involving a professor in the University of the Philippines. Sa ano ito e, sa graduate school ito e.
Mukhang iba angkanyang styl;e, iba ang style niya. Ano nga ang ngalan ng propesor na ito.
Nakalimutan ko na e. doctor. The students did not like the ano, they did not like the method of
instruction, parang ibang klase raw talaga, weird kumbaga ano. Weird yung propesor. Ok. Ah
nagcomplain yungmga studyante. Nagcomplain pa hanggang sa Ombudsman dahil sa University
of the Philippines ito. Kaya government employee, government official ok. The board of trustees,
however the board or regents of the university upheld the right of the professor to use his method
of teaching. And so the Ombudsman dismissed the action saying, e yung eskwelahan nga
sinasabing ano e, ay e ano pa kami. So this was brought up to the Supreme Court, and the
Supreme Court said it was right for the Ombudsman to dismiss the action against the professor.
This is guaranteed precisely by the constitutional principle on academic freedom. Of course
academic freedom cannot be invoked in all cases. Academic freedom is not absolute. It yields to
the well, to the exercise of police power. From the standpoint of the students, Non vs. Dames
and ah well related cases, Non vs. Dames is authority for the principle that when a student
enters an educational institution he does not leave his constitutional rights at the gates.
Accordingly those cases ah such as Malabanan vs. Ramento, on the conduct of an assembly
inside the school premises, Villar vs.TIP, then more recentlythe case of Ateneo de Manila
University vs. Judge Capulong. Again class although we discussed this already, again, when a
student enrolls in college he is supposed to enroll for the entire course. Entire course. As long
that he pays the tuition fees and other fees of course. There are only 2 grounds to deny him
readmission, if he has not yet graduated you deny him readmission only one on the basis of
academic deficiency. Second on the basis of violation of reasonable rules of conduct prescribed
by the school. On the second there is need for publication of the rules, publication of thepenalties
imposed. But this publication really means that a student get to know. A number of schools they
give the student upon enrolment a manual, a manual where are contained the rules imposed by
the school. Ok. When a student is sought to be denied readmission on the ground that he has
committed a violation of reasonable rules of conduct.
It is however necessary to accord him thebenefit of due process of law. And we said that
in the case of Ateneo de Manila University vs. Judge Capulong, reiterationg Guzman vs.
National University, the following are the requisites for due process in studebnt administrative
disciplinary investigation: 1.) the student is entitled to know, has the right to know the nature and
the cause of the accusations against him; 2.) he has the right to answer with the assistance of
consel if desired; 3.) he has the right of access to the evidence against him; 4.) he has the right to
present evidence inhid behalf; and 5.) the body, committee, panel, investigator must consider the
evidence presented. Alright. So read also class the other provisions of article 14 such as the
provision on languages. What is the official, what is the national language, what are the official
languages. How are regional dialects to be considered. Baka naman ang mga tanong ganyan.
In what languages is the Constitution of the Philippines to be published? Because many years
ago less than 10 years ago, one of the question asked was, what id the language used in the
international court of justice. Itinanong yun sa bar oh, tang ina pero wala tayong magagawa
ganun nga e. so pwede rin dito, what is the ah in what languages is this constitution to be
promulgated aha. Alright. So pagkatapos, basahin niyo lang yung iba kasi, basahin niyo lang
yung sports, isipin mong sportsok anyway pwede naman, yung sports nakaka ano sa atin yan
e. kamukha nung, kamukha nung 9-ball world championship na yun, natalo na lahat yung Filipino
si Manalo na lang yung ah, si Luat natalo na rin, so Orculyo so mas mabuti pa yung Filipino na
Canadian na ngayon si Pagulayan, panay pa ang panalo. Ok. Finally class, finally hindi pa
finally pero
Article 15 that is very short. Im sure that you can memorize that pero you will not, you do
not have to memorize that class. Article 15 on the family.
GENERAL PROVISIONS
The 16 on the general provisions again just read that. I want you to read article 16 to see
and be sure you can answer the question, Congress passes a law changing the name of the
Republic of the Philippines to Bayan ng mga Maharlika, is the law valid? Explai. 1% and so yun.
And then yung mga provisions dyan. Ang meron lang cases naman yung sa National Police, the
civilian character of the national police and the national scope of the police and the fact in the
case of Alunan, the fact that the old police establishments, the National Police Commission, the
Philippine Constabulary, the Integrated National Police have all been abolished. We have now
the PNP, the Philippine National Police. Civilian in character, national in scope. And then the
provisions nga which we already took up, provisions on mass media, advertising nasa article 16
naman yung mga pati yung flag natin, pati yung ano so basahin niyo lang yan baka medyo
makursunadahan ng ano. Matipuhan ng examiner na dito nga ako magtatanong baka walang
nagbabasa ng mga itoiyon. Because of you will notice, if you will read through the last 10 bar
examinations in political law, you will notice that there will always one question on an article or

139

provision that you do not give any attention to yung mga ang aking tawag dun yung mga
innocuous or insignificant provisions meron perme nyan. So, pero 1% lang yan so ok lang so pag
hindi niyo alam 1% langyan putang ina bale wala yan. Kayang kaya pa pwede pa akong mag 99
dito sa ano, ayun. Perop pag marami ng 1% dyan e.

TRANSITORY PROVISIONS
Finally article 18. sa article 18, the only things that are applicable na lang dahil puro na
lang, imagine that it has been 15 no 17 years since this constitution was ratified and so we have
certainly gone through the transition already. And ang siguro the important thing to considere na
lang are the matter of treaties. The effectivity, ang ano, treaties that have not yet been ratified,
wala na, wala na subject to ano na. And of course the case of Bayan vs. Executiuve Secretary,
on the Visiting Forces Agreement which we have already discussed. Well the Supreme Court
said that the Philippine givernment cannot require the US givernment to have this ratified by their
own Senate because in any event, whether treated as a treaty or as an executive agreement the
same will still be binding on the parties. Then siguro yung provision on Civil Service employees
affected by the reorganization. We will take this up in connection with public officers because this
has been the basis for the reorganization of certain government offices after the ratification of the
constitution and consistent with our discussion on the modes or terminating official relationship.
The matter of abolition of public offices. Then finally the matter of sequestration class. Sa
sequestration, wahat are the principles that may still be possible sources of the bar exams?
Sequestered corporation by the PCGG, what is the role of the PCGG relative to a sequestered
corporation. It is merely a conservator it does not get to own the ano. And so even in the matter
of voting certificates of stocks, stocks certificates in the election of officers of the corporation.
Sabi ng Supreme Court, the only case in Cojuangco vs. Roxas, the only case where the PCGG
may really take over the corporation is in case where the capitalization of the corporation came
up from public funds. And eventually went into private hands as in the case of Vaseco. Then
class the requirement given under the constitution for judicial action to be instituted within 6
months from the sequestration if the sequestration was made after the raification, 6 months from
the ratification of the constitution if there was prior to the sequestration. Ang decision lang ng
Supreme Court dyan, the judicial action required can be in the form of criminal or civil action.
Walang pinipili. Criminal or civil. And the right of thr PCGG like any other party in the civi case to
enter into compromise agreements whenever there is a civil case pernding. And the right of the
PCGG to grant immunity, civil or crminal immunity. Then class, the Romualdez case on the
extent of the jurisdiction, thescope of the jurisdtiction of the PCGG to conduct investigations in to
allege crminal violations. The 3 requisites cited by the Suprme Court in Romualdez, the inquiry
must refer to ill-gotten wealth of president Marcos, members of the immediate family,relatives,
friends cronies etc. Number 3, who took advantage of their public office or of their relationship or
other influence. In the case of Romualdez it was really a case of failure to file. Ang kaso nga
lang doon failure to file statement of assets and liabilities through the years. And then there is a
slight a remedial law aspect there class the matter of there having no preliminary investigation.
But of course the Supreme Court said the lack of preliminary investigation does not at all affect
the jurisdiction of the court.

ADMINISTRATIVE LAW
Powers of Administrative Bodies
However class again because of judicial interpretation and because of the character of
administrative agencies themselves there may be powers that do not fall under these 2 which an
administrative agency may perform. And if you wll look at what we just mentioned, Isidro Carino
vs. Commission on Human Rights, you will notice that under the decision, the Commission on
Human Rights is without quasi-judicial powers yet it makes certain findings. Where do you place
then these powers of such administrative agencies? This justifies another classification of
administrative powers and for lack of any better term the late Justice Martin called them the
determinative powers. The late Neptalie Gonzales called them incidental powers. There were
those who felt that there was no need for such a separate classification because according to
them most of the so-called determinative or incidental powers flow really from the exercise of
quasi-judicial powers.
However class as you very well know now in light of that decision for example in Cario,
since theres no quasi-judicial power in the commission, what do you call then the powers granted

140

to the commission on human rights. Alright. So let us look at the determinative powers first.
There are five determinative powers.
The Enabling powers, the directingpowers, the dispensing powers, the examining powers
and the summary powers. This is not to say that each administrative agency has all the powers.
In fact certain administrative agencies may have one or two of these powers. Others may have
all of the powers. The enabling power is the power of certain administrative agencies to allow the
performance of an act, allow the performance of an act, by the individual or the enterprise. So
the municipal mayor is himself an administrative agency. The President of the Philippines is
herself an administrative agency. The departments in governments are administrative agencies,
the commissions created by law are administrative agencies, in the constitution, your 3
constiutional commissions are administrative agencies, your Ombudsman is an administrative
agencies. The mayor for example issues a permit, a mayors permit or a mayors licenseso that a
person may opena sari-sari store. The issuance of license is part precisely of the mayors
enabling power. It enables one to freely engage in an activity which is regulated by law. That
enables, kaya enabling.
The directing power is illustrated by thepower of the bureau of internal revenue, for
example in making assessments or the bureau of customs in assessing a shipment as subjects to
tax. The dispensing power is the power of some administrative agencies to exmpt a person from
having to do an act required to him by law. There is an agency in the Armed Forces of the
Philippines that grants exemption from compulsory military service. For example, if there is a
constriction of an able-bodied men and women. Now, who may be called upon to render military
service or to undergo compulsory military training, there are some people who may be exmpted
from that. The power of an agency to grant exemption is the dispensing power.
The examining power is also known as the investigatory power. The power of certain
government agencies to conduct an investigation to determine the existence of a certain state of
facts or things.factfinding, examining, investigating, this is what is known as the examining power.
And so in the case of Caro vs, Human Rights, the Supreme Court said that the Commision on
Human Rights does not have the quasi-judicial but has only examining powers. Flowing from the
exmaning power is the power for example to adminiter oath. Although the power to issue
compulsory process may not necessarily flow from an examining power and certainly an agency
that has only examining power cannot be vested with the power to punish contempt. We will look
at that in light of the quasi-judicial power later.
But perhaps even now, we should cnsider the
case of Guevare vs. COMELEC, the Supreme Courts said that power to punish contempt is
essentially a judicial power however, an administrative agency may be law be granted thepower
to punish contempt. However even when the law grants an administrative agency the power to
punish contempt that power can be exercised only by the agency where the agency is engaged in
the peroformance of quasi-judicial functions.
Accordingly in the case of COMELEC for example, the Commission on Elections has
quasi-judicial powers. It is, the Commission on Elections, supposed to be given original exclusive
jurisdiction over pre-proclamation contests. The Commission on Elections has exclusive original
jurisdiction over all cases relating to election returens, qualification of regional, provincial and city
elective officials. When the Commission on Elections seats to hear and decide these cases the
Commission on Elections exerciser quasi-judicial powers. But the Commission on Elections also
has the power for instance to purchase ballot boxes, eneter into contracts regarding the printing if
ballots, or perhaps even the purchase of computers and electronic equipments to be used in
computerization or the automation of the election process. These later, the latter functions of the
Commission on Elections are deemed to be strictly administrative and not quasi-judicial. Whike
the Commission on Elections is vested with specific authority by law to punish contempt, the
Commission on Elections can punish contempt only when engaged in quasi-judicial functions.
While hearing cases involving electoral contests, pre-proclamation contests etc the Commission
on Elections cannot punish contempt while engage in the business of conducting a bidding on the
supply of ballot boxes, or conducting a bidding on which printer is to be given the contract to pront
ballots, these are purely administrative functions. Alright. Then the summary powers refer to
powers of certain administrative agency to apply compulsion or force upon persons or things
without the a necessity of a judicial warrant. Ah the department of public works and highways, for
example, has authority to clear a river or a waterway of whatever obstacles there may be if
somebody has placed has constructed a little dam to divert the water into his own farm for
perhaps irrigation purposes and that is a waterway then the department of public works and
highways may order the immediate destruction of that dam. Ok. The summary powers are
normally powers that may be resorted to by administrative agencies for purposes of abatement of
nuisances. Alright. So those are your determinative powers.

141

Quasi- legislative and Quasi-judicial Powers

The major powers of administrative agencies of course are quasi-legislative and quasi
judicial. What is a quasi-legislastive power of administrative bodies. It is the power of
administrative bodies to issue rules and regulations which have the force and effect of law.
Where does the authority to issue rules and regulations comes from. It comes from Congress.
When we were talking about delegation of powers we said that one of the instances of
permissible delegation of powers is the delegation of legislative powers to administrative bodies.
When Congress passes a law creating an administrative agency and vestingin the
administrative agency the authority to issue rules and regulations, these rules and regulations
have the force and effect of law. I think the best example for your purposes because I understand
that you have also memorized rules and regulations is the power granted to the secretary of labor
to issue rules and regulations implementing the labor code or the power granted to the NLRC to
issue rules and regulations precisely to implement also the relevant portions of thelabor code.
There is authority granted by law and of course, whatis the product of the delegated power, the
delegated legislative power? This rules and regulations. Rules and regulations that may come
under different names. When a cabinet secretary issues rules and regulations these rules and
regulations may be denominated department prders, office orders, memoranda, circulars etc.
whatever else they may be called. Of course when designated for example as under the labor
code to issue rules and regulations they are called IRR, implementing rules and regulations or
rules and regulations implementing the labor code. Those are your rules and regulations and
these are the products of the exercise of an administrative agencies of their quasi-legislative
power.
Kinds of Administrative Rules and Regulations
What are the kinds of administrative rules and regulation? Irrespective of their
denomination, of their names, the rules and regulations which an administrative agency may
issue come under any of 3 kinds. First, detailed legislation. Detailed legislation, interpretative
legislation and contingent legislation. Legislation here is used advisedly. The word legislation is
used of course to denote the rules and regulations which are issued by an administrative agency.
Detailed legislation or supplementary legislation are rules and regulations issued by an
administrative agency in order to provide details for the implementation of the law which the
agency is tasked to enforce and administer.
Accordingly the best example again is of course the department of labor. The secretary
of labor is vested with the authority to promulgate implementing rules and regulations for the
purpose of implementing the labor code of the Philippines. It is the department of labor which is
vested with the authority to implement, enforce and administer the labor code. And these rules
issued by the secretary of labor effectively provide details and supplements the law itself to make
it easier for the goernment precisely for the administrative agency to implement, enforce and
administer the labor code. Then interpretative legislation. Interpretative legislation arerules and
regulations issued by the administrative agencies interpreting or construing certain provisions of
the law that the administrative agency is tasked to enforce or administer. And so the
commissioner of internal revenue issues circulars interpreting provisions of the national internal
revenue code. The securities and exchange commissions issues memoranda, circulars, orders or
whatever else they are called commission rulings or whatever and for the purpose of
implementing provisions of the corporation code and so on, the securities act whatever.
Interpretative. Whether detailed or interpretative or even contingent if that should arise these
rules have the force and effect of law although they are not law themselves. In the matter of
interpretation made by an administrative agency on the provision of law, the interpretation given
by the administrative agency known as contemporaneous interpretation ah has great weight in
the final interpretation of the law although it does not necessarily control. Contingent legislation
refers to rules and regulations which the administrative body may issue in order to determine the
state of facts or things upon which the continued enforcement of the law depends. In the case of
Cruz vs. Youngberg although this happened a long long time ago, there was a known
international epidemic, epidemic affecting cattle mainly outside the country and so Congress
passed a law prohibiting the entry of foreign cattles into the Philippines. The epidemic was an
epidemic of rinderpest, rinderpest was of course a dreaded cattle disease. That was before they
found out the foot and mouth diseas that afflicted not only cattle but also people noh. Alright. The
law contained a provision giving the governor-general, the president, the authority to issue rules
in order to determine whether or not the rinderpest epidemic has passed and when it would be
safe to allow the entry of foreign cattles into the country. Those rules and regulations issued by
the governor-general or the president of the Philippines as it were, were in the nature of
contingent legislation. Alright. These are the kinds of rules and regulations which an
administrative agency may issue. Now, from there we move on to the requisites for the validity of
administrative rules and regulations. Recall that we discussed this in connection with police

142

power. We discuss this in connection of the exercise of administrative agencies of delegate

police authority. Because the delegated police authority includes the authority to to issue rules
and regulations in order to promote the general welfare. In any event class recall the 6 well 4
basic abd 2 additional requisites for the validity of administrative rules and administrations,
whatever they may be. 1.) There must be, the rule must have been issued pursuant to an
express authority granted by law. There mist be law passed by Congress authorizing the
administrative body to issue rules granting it quasi-legislative power, the power to issue rules and
regulations. (cut)
July 17, 2004
Ang Secretary naman dahil walang panahon, pag tingin, ah, areglado na, napirmahan
na pala, meron na palang ano ito, pirma na lang sya, promulgate nakaagad ang desisyon. That
is what the Supreme Court ward against because you see the law vests the power in the
Secretary and so, he should at least make sure through an independent consideration of the facts
of the law and the law of the case that this is how the case should be decided. He should not
simply accept the recommendations of the hearing officer or the lawyer. Syempre ang mga
lawyer dyan, lalo na kung ang Secretary hindi abogado, sir, ganito yan, alam mo dito sa law
ganito, kaya ayan, pirmahan nyo na, ganun, that is, alright.
Then, class, certain other aspects of your quasi-judicial powers. Things we already took
up. One, the matter of self-incrimination. Pascual vs Board of Medical Examiners, and Kabal
vs Kapunan. That a respondent in an administrative case may refuse to take the witness stand
and no adverse inference shall be taken from his refusal to take the witness stand. If he is
compelled, the respondent however must be a respondent in an administrative case, the result of
which could involve an imposition of a penal sanction. Such as in the case of Pascual, the
revocation of his license to practice medicine. In the case of Kabal vs Kapunan, the forfeiture of
alleged ill-gotten properties.
The matter of res judicata. It is now accepted in this jurisdiction. Ismael vs Deputy
Executive Secretary, starts it all and says, that the principle of res judicata may apply to
administrative proceedings, to administrative decisions. It is not res judicata per se, class,
because res judicata is applicable to judicial decisions. But it is, the equivalent of res judicata,
where the decision of an administrative agency then acquires what is called preclusive effect.
And your preclusive effect of course, has the same effect as res judicata. Two exceptions on
the res judicata principle. First, Board of Commissioners CID vs Judge dela Rosa. On
citizenship based on an old decision, Citamaborca vs Republic. When the administrative
determination is a determination of citizenship, that administrative determination never acquires
res judicata effect unless the following requisites are complied with. The issue of citizenship is a
material issue in an administrative proceeding and is taken up in a full-blown hearing. SolicitorGeneral or his representative participated in the hearing and the determination of citizenship is
affirmed by the court.
There is another case, although wala na ang Workmens Compensation Commission, BF
Goodrich vs Workmens Compensation Commission. Since you are all young here, not one will
probably remember that we had the Workmens Compensation Commission in the past. Under
the Workmens Compensation Act, an employer in government or in private business, in private
enterprise, if he gets sick and his sickness is aggravated by the work he is doing, or if he is
injured while at work, or injured while undertaking a work-related activity, he is entitled to payment
of Workmens Compensation Benefits. Ganun yun noon, racket din ito noon, alright. So, ito,
where do you get Workmens Compensation Benefits? From your employer. Kasi yung trabaho
mo, ang sinasabi ko lang noon, aggravated daw, ang iyong illness aggravated by your work, o
sabi ko lahat ng trabaho aggravates an illness. Ang hindi lang na-aagravate na illness kapag
trabaho yun pagka batugan (laughs), laziness is not aggravated by work. Anyway, ang nangyari
dito, nagkaroon ng kaso, a worker was injured and then he claimed for Workmens Compensation
Benefits. He was paid, nagka-aregluhan, ang tawag ng arbiter, hindi arbiter ang tawag noon, ang
tawag noon referee, sa Workmens Compensation Act. So, nag-areglo ang management at ang
empleyado. Binigyan, binayaran na ang empleyado, pumirma na ng quit claim, kamukha ng
pinirpirmahan na quit claim ngayon sa harap ng arbiter, quit claim. Eh hindi masyado malaki ang
ibinigay, nagastos kaagad, naubos kaagad ng empleyado. When it talked to another employee,
who knew about this, aba, ganon lang ang ibinigay sayo? Napakahina mo naman, hindi tama
yan, hindi tama, because you are entitled to this and this. And so he filed again, filed a claim
again, under Workmens Compensation.
Naturally, the management said, res judicata.
Binayaran ka na, meron ka ng quit claim, etc., everything. Sabi ng Supreme Court, there can be
no res judicata were the amount of benefits given to the employee are less than those provided
by law. There was therefore, a violation of the law itself and so the judgment even if made upon a
compromise cannot constitute res judicata in the case.

143

The matter or administrative appeal, okay yun dahil, you go up in the administrative
structure to the higher, to the next higher administrative agency in the same administrative
structure were there is a law allowing such appeal. And note, that on appeal in the same
administrative structure, the appellate body may require the presentation of evidence. That
means, it is possible that the superior administrative body may also adduce evidence.
And then of course, class, the power of control. In the executive department, the
President exercises the power of control over all executive departments. If your administrative
agency is in the executive department then, the President of the Philippines exercises the power
of control over that agency. That means, that the decision in the exercise of quasi-judicial powers
by any administrative agency within the structure would be subject to the Presidents power of
control and the President can theoretically reverse, amend, modify, nullify, set aside, the decision
of such an agency in the exercise of quasi-judicial powers, alright. Once a party has been
adversely affected by a decision or a determination of an administrative agency in the exercise of
quasi-judicial powers, he may, then, seek judicial recourse. Sasabihin mo, wala akong maasahan
dyan sa opisinang yan, kaya pupunta na lang ako sa korte. That is of course possible.
Exhaustion of Administrative Remedies
But before you can go to the court, you must first exhaust all available administrative
remedies which bring us to the next subject area were the question in Administrative Law will
probably be taken from. In the event that your examiner does not want to study Administrative
Law, yun lang ang kanyang itatanong. State the doctrine of exhaustion of administrative
remedies, the reasons for the doctrine and enumerate at least 5 exceptions to the doctrine, 1%
(laughs), alright. So, yun, the doctrine says that when a party agreed by an administrative
decision, has still other available administrative remedies, he may not seek judicial recourse until
he shall have exhausted all such administrative remedies. There are 4 reasons given by the
court for the doctrine of exhaustion of administrative remedies;
Number 1, if you avail of other administrative remedies, resort to the court may be
unnecessary, may no longer be necessary;
Second, the administrative agencies or the administrative structure should be granted a
chance to correct its mistakes;
Third, comity and convenience, which is really base on the doctrine of separation of
powers. Dictate that the courts are loathed to interfere in matters that are taken up by another
department, by a co-equal department;
And finally number 4, which is, something you mastered already in Remedial Law, is that
normally, resort to the courts is done through a special civil action. And in a special civil action,
the petitioner who goes to court, alleges under oath, that there is no other plain, speedy or
adequate remedy open to him at law. If there is still an administrative remedy, then, he is not
truthful in his allegation that there is no other plain, speedy or adequate remedy open to him at
law. What happens if there is a violation? Then, the failure to exhaust administrative remedies
may be raised as a valid defense and the petition may be therefore dismissed on the ground of
lack of cause of action.
There are two corollary principles to the doctrine of exhaustion of administrative
remedies, and these are;
First, the doctrine of primary administrative jurisdiction which is also called the doctrine of
prior resort, and the doctrine of finality of administrative action. The doctrine of primary
administrative, prior resort, primary administrative jurisdiction says, that when the law vests
jurisdiction over a certain subject area of controversy on an administrative body, the courts will
not touch the controversy until after the same has been acted upon by that administrative agency.
Huwag na lang tayo lumayo, dyan na lang sa ano, Electoral Tribunal. In the case of Sampayan
vs Daza, for example, the petition was filed directly with the Supreme Court seeking the
disqualification of Daza as a member of the House of Representatives. The Supreme Court said,
the Constitution vests primary administrative jurisdiction in the Electoral Tribunal, it is the sole
judge of all contests relating to election returns and qualifications of members. Daza is a member
of the House, therefore, the case should have not been filed with the Supreme Court, it should
have been filed initially with the Electoral Tribunal. The doctrine of finality of administrative action
says, that resort to the court can be made only when there is nothing more to be done in the
administrative structure. So that, if for example, election case, all cases are to be heard and
decided by the Commission on Elections in division. After the division has decided the case, the
party adversely affected by the COMELEC decision cannot go to court yet, because there is a
need to appeal to the Commission en banc. While the Commission en banc has not yet resolved

144

the motion for reconsideration, then, no resort to the Supreme Court can be made because there
is still something that awaits to be done in the administrative structure. Only when the motion for
the reconsideration shall has been resolved may the party then go to the Supreme Court.
The exceptions, siguro naman, hindi naman hihingi ang examiner ng sampu dyan na
ano, kasi yun sampu paulit ulit, iba lang naman ang words. Anyway, class, among the
exceptions; the doctrine of qualified political agency which we already discussed in connection
with the power of control. Again the President even if he is the highest administrative authority in
the administrative structure has his cabinet members as his alter egos, and under this principle,
the decision of a secretary, of a cabinet secretary, is presumed to be the decision of the
President. Therefore, if a cabinet secretary decides the case of X vs Y, in favor of Y, X may
directly go to court without violating the doctrine of exhaustion because the decision of the
secretary is deemed to be the decision of the President. Two exceptions, Tan vs Executive
Secretary, were the law itself provided that in as much as it was the President who issued the
Presidential proclamation, appeal to the President would complete exhaustion of administrative
remedies. Second exception, the case of Callo vs Fuertes, here is what happened, the
secretary decided the case of X vs Y, in favor of Y, X appealed to the President on the mistake in
assumption that it is necessary to appeal to the President. However, after he had appealed to the
President, he probably must have found out or his lawyer found out that there is such a thing as
the doctrine of qualified political agency and so he said, huwag na tayong maghintay ng sa
Presidente, let us withdraw that appeal and go to court, which is what they did, they withdraw
their appeal and X went to Court. Y, interposed the defense of failure on the part of X to exhaust
administrative remedies, X said, doctrine of qualified political agency. The Supreme Court said,
the case filed by X in court can be dismissed on the ground of failure to exhaust administrative
remedies. The Supreme Court said, when X made his appeal to the Office of the President, he
recognized the existence of yet another available administrative remedy, having recognized that
available administrative remedy, he cannot now turn around and say he is going to court without
exhausting that available administrative remedy he recognized, alright. Another exception, when
the administrative agency invoking the doctrine is in estoppel. When the administrative agency is
in estoppel, the Supreme Court made this ruling in the case of Vda. de Tan vs Veterans Back
Pay Commission, this is what happened, the claimant was a widow of a Chinese national who
served in the guerilla during the war. The widow sought payment of back pay for her late
husband. The Veterans Back Pay Commission refused to pay and said, we will not pay unless a
court orders us to pay. Miski sino pang Pilato may order sa amin basta hindi korte hindi kami
magbabayad. So, instead, of going up to the Secretary of Justice the widow went to Court.
When the widow went to court, the Veterans Back Pay Commission interposed the defense of
failure to exhaust administrative remedies. The Supreme Court said, the agency is in estoppel
having said that it will not pay except upon order of a court, it cannot now invoked the doctrine in
its in defense to abate the court action. Third exception, were the issue is a pure question of law,
alright. When the issue in the case is a pure question of law, then, resort to the court can be
made immediately. We have a number of cases on the matter and of course, I dont think that
there is any necessity to discuss this even further because you have been confronted with so
many of these cases already not only in Political Law. The Supreme Court in a recent decision
involving the Sandiganbayan said, that the Supreme Courts jurisdiction, certiorari jurisdiction,
over decision of Sandiganbayan refer only to questions of law and there the Supreme Court said,
there is a question of law when the doubt or controversy refers to the application of the law or
jurisprudence upon a given set of facts, when there is no necessity to evaluate the evidence
because the truth or falsity of the facts stated are already accepted, alright. Another exception
would be, were the administrative action will result in the nullification of the claim. For example,
were a public officer has been unlawfully ousted from his office, he has one year under the rules
of court within which to institute judicial action in order to recover the public office. The Supreme
Court has said, that this one year period cannot be interrupted by the filing an administrative
action and so, to insist on exhaustion which will probably take more than a year would be to invite
the nullification of ones or the loss of ones right to go to court. Of course, another exception is,
when there is a violation of due process of law.
Ansaldo vs Clave, in Ansaldo vs Clave, we had the petitioner who was a party to a case
before the Civil Service Commission of which Jacobo Clave was then chairman, the decision was
rendered by the Civil Service Commission. At that time the Civil Service Commission was not yet
an independent Constitutional body and it was under the Office of the President so that appeal
from the decision of the Civil Service Commission had to be made to the Office of the President
before resort to the courts could be made. And so, here was this fellow who went to the Office of
the President only to find out that the Executive Secretary, the Presidential Executive Assistant
who was the Executive Secretary was himself, Jacobo Clave, who was chairman also of the Civil
Service Commission. So here is an appeal from the decision of Clave to be decided on appeal
by Clave himself, there is of course, a violation of due process here, because there can be no
impartial court or tribunal in this regard. Class, ganito na lang, after all, after the five, more or
less, five, separate reasons or exceptions to the doctrine, ganito na lang. Given a problem on

145

exhaustion of administrative remedies, look at the facts very carefully, if from your own
independent evaluation of the facts using your conscience and your sense of justice and your
sense of fairness, you see, that the insist on the doctrine will resort to irreparable injury or grave
injustice or what else, utmost prejudice, then, that should be an exception to the doctrine of
exhaustion of administrative remedies because the doctrine of exhaustion cannot be invoked to
shield these things, irreparable injury, irreparable damage, utmost prejudice, yun mga ganyan
lahat na ano. So ganun na lang, class, if you are made to enumerate 11 exceptions to the
doctrine of exhaustion of administrative remedies (laughs), isa-isahin nyo yun. Siguro you add,
were the law does not require exhaustion of administrative remedies as preconditioned to resort
to the court, were insistence upon the doctrine will result in undue prejudice to him, were
insistence upon the doctrine will work irreparable injury, were insistence on the doctrine will result
on a clear case of injustice being done. Of course, another one would be, were the administrative
action is patently illegal. In the case of Industrial Power Sales vs Insuat, for example, the
administrative action complaint of was really not legal because there was no bidding involved in
the acquisition, or in the purchase of supplies, alright. After one has finally exhausted all
available administrative remedies, then, one may validly go to court hopeful that the court will give
him the justice denied him in the administrative structure, and so, the matter of judicial review of
administrative decisions. The basis, even as, class, in the old, in American jurisprudence,
Congress can deny resort to the court. In other words, Congress can provide that the decision of
the administrative agency shall be final, executory and unappealable, that is no longer possible
today under the Constitution were there is involved the exercise of quasi-judicial powers because
the exercise of quasi-judicial powers entails the exercise of discretion by the agency vested with
quasi-judicial powers and under Section 1 second paragraph of Article 8, the definition of judicial
power includes the power to determine whether or not there has been a grave of discretion
amounting to lack or excess of jurisdiction on the part of any agency or instrumentality of
government. So, even early on, Continental Marble, ngayon merong Unicraft Industries, from your
mastery of labor, whenever, the parties to a controversy in labor agree to submit the controversy
to a voluntary arbitrator, the parties in effect agreed that no one has the right to appeal from the
decision of the voluntary arbitrator. The agreement is, nag-submit tayo sa voluntary arbitrator, we
have to accept the decision of the voluntary arbitrator. This is what your Labor Laws tell you,
however, we have as I said in Continental Marble vs NLRC, which was decided many, many year
s ago, and more recently in 2001, the decision of the Supreme Court in Unicraft Industries. The
Supreme Court said, were, that is normal, that is usual, you accept the decision of the voluntary
arbitrator, but when there is an allegation that the voluntary arbitrator committed grave abuse of
discretion by say, not allowing one of the parties to present his claim, then, the decision of the
voluntary arbitrator may still be brought to court and grave abuse of discretion raised as a ground
of going to court. Siguro, ano na lang, where, what court do you go to? From your mastery of
Remedial Law, you know that youll go to the Court of Appeals, lahat na ngayon Court of Appeals
na, lahat na lang, Court of Appeals, Court of Appeals, kasi, yan ang sabi ng Supreme Court. Ilan
na lang ang naiiwan sa Supreme Court? COA, COMELEC, Sandiganbayan. Sandiganbayan is
not an administrative agency it is a judicial body. So COA at COMELEC na lang ang direkta sa
Supreme Court, all the rest, dito na sa Court of Appeals. Now, I would like to point out only two
cases. One, Board of Commissioners CID vs Judge dela Rosa, were the Supreme Court said,
that the Bureau of Immigration and Deportation is not on the same level as an RTC and in effect
by that declaration the Supreme Court said, that an RTC can review the decision of the Board of
Immigration and Deportation. Second, Commendador vs De Villa, were the Supreme Court in
effect also declared that the RTC may review, in effect review what a Court Martial did. In this
case, the Court Martial refused to grant a petition for bail and the RTC of Quezon City granted
bail. And then of course, the Laguna Lake Development Authority, even as it may perform and is
vested with quasi-judicial powers is not on the same level as the Regional Trial Court. So, these
decisions are being cited for your purposes, class, just in case there is a question asked in the
bar exams on this, but basically all of your cases now should be filed with the Court of Appeals.
Dalawa na lang, questions that may be raised, because when you file your case in Court, first,
you do not expect a trial de novu, no trial de novu in Court. So, what questions can you raised in
Court? Questions of law, definitely, yes. Questions of fact as a rule no, because as a rule the
Court is bound by the factual findings of the administrative agency as along as the factual findings
of the agency is supported by substantial evidence. However, questions of fact may be raised if
the law itself provides that questions of fact may be validly raised. Second, when there is fraud,
imposition, or mistake, other than error of judgment in the evaluating the evidence, or were there
is a mistake or error committed in the appreciation of the pleadings, or in the interpretation of
documentary evidence. In any of these 3 cases, questions of fact may be validly raised to the
Court. And finally, on alleged questions on mixed questions of law and fact, on the so called
brandized doctrine of assimilation of facts, were what purports to be a question of a finding on a
question of fact is so intimately related with, or dependent upon a question of all, as to be in
substance and effect a decision on the latter, then the Court, may go over the records and the
evidence and therefore, rule even on the question of facts. As a general rule, class, the Court
cannot but accept the findings of fact, the factual findings of the administrative agency. And so,
when does the Court then exercise its power of review and when may the Court reverse the

146

administrative agency? Only when there is a showing of grave abuse of discretion, fraud,
collusion, error of law or denial of due process, then, the Court may reverse and exercise that
power of judicial review. So again, the only questions will be on powers, exhaustion and judicial
review. If your examiner gives you another question on administrative law outside these three,
then he does not know Administrative Law, alright.
July 20,2004
LAW OF PUBLIC OFFICERS
So we take off from were we left off yesterday. We go to the rights of Public officers.
Among the important rights of public officers are: first the right to office. The right to the office
flows from the title that he acquires either from appointment, valid appointment, or by virtue of a
valid election. It is in this connection that we look at the distinction between term and tenure.
Tenure
Tenure is supposed to be the period of time by which the public officer actually holds
office. While term is the period of time by which the public officer is entitled to hold office. So as a
rule, term is longer than tenure. This happened, well the exception happened during the time of
President Marcos. His tenure far exceeded his term of office for which he was elected. And so in
that old old case of Nuez vs. Aberija, what really happened was elected in 1971 for a term of 4
years of Mayor, then a protest was filed against the public officer proclaimed then after the 1972
declaration of martial law in 1975 when the four year term expired unfortunately the protest case
resulted in the protestant being proclaimed the winning candidate. The protestee said that he
was entitled to continue on because there were no elections called by, called after 1975. The
Supreme court said his entitlement to the office of course was based on valid elections, since the
protest case showed that he lost the election, he can no longer claim his right to the office.
Right to Salary
Second important right, is the right to salary. Salary is the compensation provided for by
law for the office which the public officer occupies and of course look at the distinction between
wages and salaries. Salaries are supposed to be given to those occupying relatively higher
positions and wages are only given to laborers. What are the things you have to remember in
connection with the salaries? First, the salaries of public officers before they are paid to the public
officer himself are exempt form garnishment. Note that any agreement relative to salaries, relative
precisely to future salaries are contrary to public policy. I have always been amused by
candidates running for public office who as part of their so-called platform of government declare
that they when elected not accept their salaries attached to their office. Even that declaration is
contrary to public policy. I remember a friend of mine, who ran under that so-called platform in
1971 when he ran, no in 1970 he ran for the position for delegate to the constitutional convention.
He won and true enough he did not get his salaries as delegate. After September 21 when Pres.
Marcos proclaimed martial law and the prospects of becoming congressman grew dim because
congress was abolished Pres. Marcos, he decided that there was no point in not getting his
salaries anymore. So he decided to withdraw his salaries from all the way to October of 1972
and he was paid. Naturally he was paid. And sabi sa amin, mabuti naman parang forced savings
lang natin yun nabuo. And so there were in the past certain instances where 2 people deciding to
run for public office would come to an agreement na wag ka nalang tatakbo, basta ang sweldo
ko sayo na. Ngayon ang mga agreements na yun, such agreements are contrary to public policy.
Alright.
Salaries or Compensation of de facto Officers
Second the matter of entitlement to salaries or compensation of de facto officers. We
discuss this thoroughly when we discuss de facto officers. We spoke of a de facto officer being
entitled to compensation, to salaries and emoluments attached to the office whenever there is no
de jure officer. Whenever there is a de jure officer co-existing with the de facto officer, however
the de facto officer is under the obligation to give, to deliver the salaries and emoluments to the
de jure public officer because it is the de jure public officer who has title to the office and therefore
the one entitled to the emoluments attached to the office.
Other provisions, constitutional provisions relative to salaries include of course, the
salaries of the members of congress for example which will be provided by law, however any law
increasing salaries of members of congress shall not take effect until after the expiration of the
term of office of all the members of congress who approved the increase. The president and the
vice-president are entitled to salaries as may be provided by law and the salaries provided by law

147

shall not be decreased during their tenure and of course any increase shall not take effect until
the end, the expiration of the term of the incumbent president and vice-president.
In the case of the members of the judiciary, salaries shall not be diminished, shall not be
decreased during their tenure although in the case of Judge Nifatan vs. Commissioner Tan, the
Supreme Court said that the salaries of judges and justices shall be subject to income tax and the
deduction of income tax from salaries shall not constitute as an unconstitutional diminution of the
salaries. Then plus, the matter of standardization of compensation this is found in Art. 9-B, we
already have that, we already have a law providing for standardization of compensation. And
except for mga anak ng Diyos na naman GFIs (Government Financing Institutions), whose
charters specifically provide that the salary scales in this financing institutions shall not be subject
to salaries standardization law.
All other government agencies, branches, subdivisions and instrumentalities must abide
by the salaries standardization law. A number of, a number of agencies have sought from
Congress, when I was in Congress during the 6 year period that I was there I saw a lot of
agencies lobbying with Congress for the passage of the law that would exempt them/their
agencies from the salaries standardization law. In most cases, Congress would not respond
favorably even as the corresponding bills were filed. For example, one of the more recent laws
passed by Congress was the matter of increase of compensation of the members of the judiciary
and those, as well as lawyers working in the judiciary. The original plan was to exempt the entire
judiciary from the application of the salary standardization law. But the common kontrabida in all
of these cases prove to be the Department of Budget and Management and the Department of
Budget and Management would of course object to things like these because this will upset what
their plans and their programs for the financial programs as well as their prognostications for their
future, for the future financial operations of the government. For example, when we were hearing
in committee, this bill for the judiciary and we invited as resource persons those coming from the
Civil Service Commission. The Civil Service Commission representative said if you are going to
exempt the judiciary from the salary standardization law the you should also exempt the
constitutional commissions and so even the Department of Justice wanted to be exempt also
particularly the prosecution service because they said very few lawyers would now accept
positions in the prosecution service considering the low-scale of salaries. Wala na. anyway, even
us in some government-owned and controlled corporations there is some kind of fiscal autonomy
in the sense that there is an element of discretion given to them in the matter of providing or
formulating their own salary scales, nonetheless the Supreme court has always said that this
discretion has to be exercised within the context of the salary standardization law. Of course
class, in the transitory provisions of the constitution, under sec. 16 of Art. 18, in so far as the
career service in the Civil service who had been affected adversely by reorganization of the
respective offices or agencies, the constitution grants them the privilege of either obtaining
separation pay or retirement pay and retirement pay and other benefits as may provided by law or
that they should decide to be employed again, be entitled to reappointment under the personnel
action we just mentioned, reappointment to such other agencies that may need their services,
taking into account their respective qualifications and the need of the agencies concerned.
also goes into the matter of qualifying for the office so that even if an accountable
officer has already taken the oath of office, if he has not yet posted his bond, that requirement
may go into the title that he has over the office. He may not be a de jure public officer, he may
only be a de facto public officer until after he has fully qualified by posting the bond, alright. So,
who has the power to prescribe qualifications for a given office? Qualifications in the sense first
of endowments, qualities and attributes which the individual must possess.
Qualifications
In the case of Constitutional offices, it is the Constitution that normally prescribes
qualifications although the Constitution may also provide that Congress could add qualifications
for the given office. When the Constitution prescribes qualifications, as a rule, the prescribed
qualifications are exclusive and therefore, no additional qualifications may be imposed except
when the Constitution itself allows for the imposition of additional qualifications, such as, were the
Constitution itself provides that Justices of lower courts must be natural born Filipino citizens and
members of the Philippine Bar, but that Congress may prescribe additional qualifications, alright.
In the case of statutory public office, statutory created public offices, Congress has
virtual, virtually plenary authority to prescribe qualifications subject only to two unwritten
limitations. One, that the prescribed qualifications must be germane to the duties attached to the
office, and second, that the prescribed qualifications must not be specific as to fit an identifiable
individual because were such a provision in the law is included, it is in effect Congress that is
appointing or exercising the power of appointment to the given office. If Congress does
prescribed very specific qualifications defeating only a certain individual. If Congress were to

148

pass a law now for example, creating the office of Presidential Adviser for social affairs and
prescribed, and Congress shall prescribed the following qualifications;
One, the appointee must be female, second, she must be the daughter of a former
President, second, she must had relations with at least an actor, a basketball player and a Mayor
(laughs). If such qualifications were prescribed then this would be unconstitutional because then
it would be Congress actually exercising the power of appointment and not the appointing
authority anymore. In fact we have the case of Flores vs Drilon, because the third limitation on
the prescription of qualifications would of course be, that the prescribed qualification must not be
unconstitutional, it must not violate the Constitution. Now, in the case of Flores vs Drilon, we
have the law passed by the Congress creating the Subic Bay Metropolitan Authority. Under the
Organizational structure prescribed for the Subic Bay Metropolitan Authority, the law provides that
there shall be an Administrator of the Authority and that the Administrator shall be appointed by
the President of the Philippines. That would have been alright up to that point, but the law went
on and said, provided however, that the first Administrator to be appointed to the Subic Bay
Metropolitan Authority shall be the incumbent Mayor of Olonggapo City. At that time of course,
the incumbent Mayor was now Senator Dick Gordon. The law was challenged and the case went
all the way up to the Supreme Court, the Supreme Court said, that portion in the law which says
that provided that the first Administrator to be appointed shall be the incumbent Mayor of
Olonggapo City, who incidentally was allowed under the law to assume office simultaneously as
Mayor and as Administrator. The Supreme Court said, there are two grounds, two reasons why
that provision is unconstitutional. First, under the first paragraph of section 7 of article 9-B, it is
provided that no elective public official shall be appointed or designated to any other position in
government during his tenure. And so, that the second, of course, the second reason why the
law is unconstitutional, was that there was an appointment actually made by Congress even as
the appointing authority was vested in the President of the Philippines. Accordingly, the President
of the Philippines was deprived of his discretion in the choice of an elective public officer, alright.
Disqualifications
Then, class, on the other side of qualifications are disqualifications. Disqualifications of
course, may appear in the Constitution itself, or may be prescribed by law. In the same manner
that for statutorily created offices, Congress has plenary authority to prescribed qualifications for
appointment, or for election for that matter, Congress also has the authority prescribe
disqualifications. Again, the disqualifications however, should also be germane to the purposes of
the law and the disqualifications should not be unconstitutional. In the case of Dumlao vs
Commission on Elections, this happened during the time of Marcos, a law passed by the
Batasang Pambansa provided that a disqualification for candidates to public office shall be, were,
the individual, the candidate has been convicted of any offense involving disloyalty to the
Republic of the Philippines. So, up to that point, okay lang yun. But again the law went on and
said, provided however, that when a criminal information is filed against a candidate, the filing of
such a criminal information for any offense involving disloyalty to the Republic of the Philippines
shall be prima facie evidence of disloyalty and therefore a ground for disqualification of the
candidate. This was challenged again all the way up to the Supreme Court and the Supreme
Court said, this disqualification is unconstitutional. It is unconstitutional because it violates the
presumption of innocence found in the Constitution. Were you have only the filing of a criminal
information then no disqualification should yet arise until after conviction, alright. Look at Article
9-B on general disqualifications found in the Constitution. Section 6 speaks of no candidate who
lost in an election shall be eligible for appointment to any office in government within 1 year from
the date of such election. This is a prohibition against appointment. So, a person who was a
candidate for public office and who lost in the elections cannot be appointed to any office within 1
year, this is obviously to cure what happened before when in order to pay off political debts, the
President of the Philippines would appoint to choice positions in the government even those
candidates who failed, lost in the elections. Especially were the candidate lost in the election but
the President won in their place. Class, remember however that this is a prohibition against
appointment. When Senator Angara lost in his bid for Vice-Presidency, almost immediately
thereafter, he was tapped for the Department of Agriculture as the Secretary of the Department of
Agriculture, but of course, he labored under this disqualification. In the meantime during the 1
year period, he was elected through the shares of stocks held by the Philippine Government in
the Philippine National Bank, elected to the Board of the Philippine National Bank and then
elected subsequently by the Board as Chairman of the Board of Philippine National Bank. That
did not violate the Constitutional prohibition because he was elected, he was not appointed.
Even if he, as member of the Board was nominated by government, nonetheless, he was elected
as member of the board by virtue of the shares of stocks owned by the government in the
Philippine National Bank. Election, alright.
The second prohibition or disqualification, is that which we already mentioned in the case
of Flores vs Drilon, in the case of elective public officials. Elected officials cannot be appointed to

149

any office during their tenure. Obviously, if a public official, elective public official is appointed
and he forfeits his elective office, that would be valid. But he cannot during his tenure, in a little
while we will look at the distinction between term and tenure. Tenure is the period of time during
which the public officer holds the public office. So if he holds the public office then he is
appointed or he holds another appointive office, that means simultaneously with the elective office
he is holding, that is prohibited by the Constitution, alright.
The third disqualification is found in the second paragraph of Section 7 of the
Constitution, and this time, it speaks of appointive public officers. In their case, they may not hold
any other office in government, unless otherwise provided by law, unless allowed by law in fact,
or by the primary functions of their office, alright.
First, an appointive public officer cannot hold, as a rule, cannot hold any other office in
government, unless, the law expressly allows him to do so. If the law is silent on the matter, he
may also hold another public office when dictated or mandated by the primary functions of the
office. So, for instance, we have the Secretary of Agriculture who is in fact prohibited under
Article 7, in fact prohibited from holding any other office in government. But the Secretary of
Agriculture, automatically seats as a member of the Board of Land Bank of the Philippines, so
thus the Secretary of Agrarian Reform in an ex officio capacity. Both, because the law creating
Land bank provides for that, and because the primary functions of the office dictate that this
public officers also seat as members of the Board of the Land Bank of the Philippines considering
the nature of the functions of the Secretary of the Agrarian Reform, and the nature of the
business engaged in by Land Bank.
You know very well from your mastery of the
Comprehensive Agrarian Reform Law that it is the Land bank of the Philippines who eventually
pays the amount of just compensation in terms of both money and Land Bank bonds, and since,
it is the Secretary of Agrarian Reform who is supposed to preside over the implementation of the
Comprehensive Agrarian Reform Law necessarily his duties and functions as Secretary come into
very close contact with and inter-relationship with Land Bank of the Philippines, alright. Class, in
the case Civil Liberties Union vs Executive Secretary, the Supreme Court pointed to this, the
second paragraph of Section 7 of Article 9-B and Section 13 of Article 7, in so far as the
disqualification of the President, Vice-President, Secretaries, Undersecretaries and their
assistants are concerned. Notice, that under Section 7 paragraph 2, while there is a prohibition
against holding any other office, that prohibition accepts of two exceptions:
First, allowed by law and second, allowed by the primary functions of the office. In the
case of Section 13, were the Constitution, Article 7, were the Constitution prohibits the President,
the Vice-President, Cabinet members, Undersecretaries and their assistants from holding any
other office in government, the Constitution says, unless otherwise allowed by the Constitution.
Unless otherwise provided by the Constitution, no other office may be held by these people.
Class, the exceptions we said when we were discussing this, were in the case of the President of
the Philippines because by the express provision of the Philippines, the Vice-President may be
appointed as member of the cabinet and the appointed shall not require confirmation by the
Commission on Appointments. Second, under Article 8, the Secretary of Justice is under the
Constitution designated as an Ex Officio member of the Judicial and Bar Council. While then do
we allow the Secretary of Agriculture, the Secretary of Agrarian reform to seat in the Boards of the
Land Bank of the Philippines, or in other financial institutions. Again, class, Article 7 Section 13,
even as its speaks only of Constitutional exceptions, or an exception that is provided by the
Constitution, must also recognize the Ex Officio character of certain positions held. So that in
Civil Liberties Union vs Executive Secretary, even as the Supreme Court said, Executive Order
280, I think it was, was unconstitutional because under the Executive Order the President allowed
the Secretaries of the cabinet to hold two other offices in government in addition to their being
cabinet members. The Supreme Court said, this is unconstitutional. But even as the Supreme
Court distinguished the two provisions and said, the first provision covers, the provision in the
Civil Service Article, covers all government officers and employees appointive, while Section 13 in
effect makes a separate class of the President, Vice-President, Members of the Cabinet, the
Secretaries and assistants. What eventually is not allowed? Is not so much Ex Officio holding of
another office because that is mandated or dictated by the functions of the office, but accepting
compensation for this other office. Even as in the case of Civil Liberties Union vs Executive
Secretary, the Supreme Court declared that the cabinet members who had held two other offices
pursuant in government, pursuant to the executive order were considered de facto public officers,
in so far as their holding the other offices were concerned. And by virtue of their being de facto
public officers, they were entitled to compensation. But after Civil Union vs Executive Secretary,
no more compensation. And so, even as you move forward perhaps to the National Housing
Authority, were a cabinet member is supposed to seat as an Ex Officio member of the Board and
the cabinet member does not seat anymore because he has so many things to do, he just
appoints somebody, just appoints a representative to seat in the board for him. On the issue of
compensation for the representative because after all, sabi ng representative, after all the
prohibition against compensation is only against the cabinet member, can the representative then

150

be entitled to payment of compensation for his actual holding and performing the functions of
member of the board of the National Housing Authority for instance? The Supreme Court said,
No of course! Not. The Supreme Court said, if the principal himself is prohibited, then, the agent
should not be given better rights or privileges than the principal. Accordingly, since the principal
is not allowed to accept compensation then the agent cannot allowed to do so, okay,
Specific Disqualifications
Then, let me just take you briefly to the Constitutional provisions on specific
disqualifications. Specific disqualifications from public office. So, President, Vice-President,
members of the cabinet, undersecretaries, and their assistants are prohibited from holding any
other office in government during their tenure of course. The case of members of Congress, no
member of Congress shall hold any other office in government including government owned or
controlled corporations and the subsidiaries without forfeiting his seat in Congress. This is the
incompatible office we spoke of when we talked about disqualifications of members of Congress.
Incompatible, so that if a member of Congress accepts another office, he automatically forfeits his
seat in Congress without any, without need of any act, no enabling act required in order to forfeit
his seat in Congress. Then of course, the Constitution says that neither shall a member of
Congress be appointed to any office created nor emoluments have been increased while he was
a member of Congress. The second is what is called the forbidden office. Forbidden because a
member of Congress is forbidden from being appointed to the public office since he had a hand in
the creation of the public office, or a hand in increasing the emoluments attached to the office.
He should not be allowed to benefit, or to take advantage of the law on which he had a hand
which created the office, or granted greater emoluments to the office. Although, it is now very
clear as we said before that the prohibition lasts only for as long as the term to which the member
of Congress was elected, so that after the term of office expires, then the disqualification of the
member of Congress ceases and now he can be appointed to the public office created, or the
emoluments thereof increased while he was a member of the Congress.
For members of the Judiciary, Justices of the Supreme Court and Judges of lower courts,
the prohibition is against being designated to any position in government performing quasi-judicial
or administrative functions. We have a case here, In Re Manzano, involving the RTC Judge of
Ilocos Norte. When, sino nga yung Governor of Ilocos Norte who became a Congressman? Yun
meron transportation company, Farinas, yes. When Governor Farinas was elected governor for
the first time, he created, he had innovations in the government, in the provincial government of
Ilocos Norte. One of his innovations was the creation of certain committees in the office of the
governor presumably to advice him on matters that came within the competence of the
committees. One of the Committees he created was a committee on justice by executive order as
Provincial Governor. And then, he designated as head of the committee on justice the RTC
judge. The RTC judge had to go the Supreme Court first to seek advice on whether he could
validly accept the designation. Thats why the Supreme Court came out with In Re Manzano, In
Re Judge Manzano, and there the Supreme Court said, that the committee clearly performs
administrative functions and comes within the express prohibition found in the Constitution,
alright.
Constitutional Commission members, the Ombudsman and deputies prohibited from
holding any other office during their tenure, of course. Then the Ombudsman and deputies may
not be candidates for public office in the election immediately succeeding their cessation from
office. Members of Constitutional Commissions should not have been candidates in the election
immediately preceding their appointments.
Of course, members of the Constitutional
Commissions and even the Ombudsman are supposed to hold office for a period of 7 years
without reappointment. And then, finally the prohibition on the President in appointing spouse
and relatives within the fourth civil degree by consanguinity or affinity as members of
Constitutional Commissions, Ombudsman, cabinet members, heads of bureaus or offices, or
heads government owned or controlled corporations. These are specific disqualifications found in
the Constitution, class, against your Constitutional officers.
De Facto Officers
So that takes care of our first subject area on eligibility and qualification. We move on to
the de facto concept. This is a very simple concept really in the Law of Public officers. The de
facto concept that tells us that the acts of a de facto public officer are valid in so far as they affect
the public, they are valid, not for the protection of the public officer so-called, but for the protection
of the public who may have dealt in good faith with the de facto public officer not knowing that
there was stain in that title of that de facto public officer. And so, a de facto public officer is one
who appears to be a public officer that he assumes to be, but is not a good public officer in law,
that means, his title is not complete that is why he is not a de jure public officer. Even when we
spoke of de jure and de facto governments, we said, it is the de jure government that has title, a

151

de facto government does not have clean, full, legal and valid title to the office, that is why he is
only de facto. So what are the requisites of a de facto public officer?
Requisites
First, there must be a validly existing public office. Class, although, I do not anticipate
any problem on this, just make sure that in the event a problem should be given, you look at the
facts again in light of these three requisites. On the first, the first is a mandatory requisite
because if it is the public office itself that is not existing, if it is the public office created by an
invalid law, then, you cannot even talk of a de facto officer if there is no public office to speak of,
okay. The second is a question of fact. The officer must have physical position of the office. He
must be holding the office. The Third is what makes him only de facto because instead of having
full, legal, valid title to the office, he has only color of title, he does not have valid legal title to the
office. And so, how does he acquire color of title to the office? There are four situations
contemplated by law which may give rise to color of title;
First, by reputation and acquiescence. Reputation and acquiescence the public without
inquiry accept him as the public officer that he is supposed to be. So, this usually happens when
over the years, ito na lang ng ito ang taong nakikita dun sa opisina na yun, everybody assumes,
tama nga ito, because of reputation and acquiescence over a long period of time, so that the
people accept him already without any question, without inquiry, sabi ng law without inquiry,
without any question, okay. Thats one.
Two, under a known and valid appointment or election but he does not conform with a
duty mandated by law, such as, precisely qualification. If he does not qualify, does not take the
oath of office, or being an accountable officer he does not post his bond, then he could be a de
facto public officer because his title to the office is not complete since he lacks the performance of
an act required by law in his entering into the performance of the functions of his office.
Third, a situation, under a known election or appointment, void election, void because
either the appointee or the party elected is ineligible or ineligibility, or there is want of authority on
the part of electing or appointing authority, or there was an irregularity in the appointment or in the
election provided that such ineligibility, such want of authority, or such irregularity is not known to
the public. And thats why the public deals with him. This happens in almost all cases to
candidates who are proclaimed, they take their oath, they assume office even while there is
protest filed against them on their election. And so, it takes three years to finish the protest and
finally the protest is resolved, and the tribunal says, you are not the duly elected officer, ito yun
duly elected public officer. So, bababa ka na, he assumes office for two days, isa, the day when
he takes his oath and the second time when the Congress adjourns finally for the ano, thats what
happened to Congressman Carino of Pasig. Pero okay lang naman kay Congressman Carino,
smile lang naman sya ng smile dun, ni hindi na sya nabigyan ng pagkakataong magsalita doon
eh, so we were telling him, you took your oath of office on the day the Congress adjourned, okay,
adjourned ang sessions, so ano na lang ang participation mo doon sa canvass, gumawa ka
naman ng mahaba-habang speech to explain your vote kung bakit ka bumuboto kay ano, o kung
kanino man, kung ayaw mo ng committee report, para naman magkaroon ka ng pagkakataon.
His explanation did not last for three minutes, anyway, he was in good mood all the time, that
speaks well perhaps of the man, of course, he is a multimillionaire on top of that, so he does not
have to frown when you have a lot of money, may be you can smile, alright.
Finally, under a known appointment or election, void, because the election or the
appointment is made pursuant to an unconstitutional law before the law is declared
unconstitutional. Yan ang sinasabi ko sa inyo, if it is the law, if the law declared unconstitutional,
is the law authorizing the election or the appointment, then, the person who was elected or
appointed under such unconstitutional law prior to the declaration of its unconstitutionality would
be a de facto public officer. But if it was the law creating the office that was unconstitutional, then
there was no office in the first place and so there can be no talked about a de facto public officer if
there was no office at all, alright.
Entitlement to Salaries
The only thing, class, left for us in this matter of the de facto officers, left for us to discuss
is the matter of entitlement to salaries, okay. When a de facto officer co-exist with the de jure
officer, such as, the de facto officer physically ousted the de jure officer from the office and the de
facto officer assumed office started performing functions, etc., etc., then, the de facto public
officer is not entitled to the emoluments attached to the office. He is under obligation to give the
salaries and other emoluments to the de jure public officer. We have a relatively recent decision
here, General Manager PPA vs Monserate. Ang nag-assume ng office was a de facto public
officer but there was a de jure public officer who unfortunately could not hold office. Ang nangyari

152

ng Supreme Court nito, the de facto public officer was required to pay, pati nong ano, kasi hindi
naman sya nagbabayad nong, even from his retirement, nong mag-retire na, pinagbayad pa rin
sya ng pinagbayad doon sa ano, alright. But, class, when there is no de jure public officer, then,
the de facto officer is entitled to the salaries and emoluments of the office because he has been
or is performing the functions of the office. Wlang de jure kaya sya ang babayaran. And so, we
have a lot of decisions there, yun kamukha ng Civil Liberties Union vs Executive Secretary, ano
ang nangyari? The members of the cabinet, undersecretaries and their assistants, who were
allowed to hold two other offices in the government, assumed office, performed the functions of
the office, there was no de jure public officer in any of these positions, so the cabinet members
accepted and were entitled to the emoluments at least until the executive order was declared
unconstitutional. In the case of Sampayan vs Daza, for example, ang sabi kasi ni Sampayan,
disqualified yang si Daza, because he holds a green card, he is not entitled to seat as member of
Congress, and on top of that the petition filed with the Supreme Court, also asked the Supreme
Court to order Congressman Daza to refund everything that he have received while he was sitting
as Congressman. The Supreme Court said, of course, dismissed the petition, because the
Supreme Court said, it did not have jurisdiction, after all jurisdiction is vested in the House
Electoral Tribunal. Pero, on the issue of refunding the money that Daza received, sabi ng
Supreme Court, Daza was proclaimed duly elected member of Congress, took his oath, entered
into the performance of the functions of his office, and there was no de jure officer at the very
least, Daza, is a de facto public officer and therefore, entitled to the payment of salaries and other
emoluments. In the case of Menzon vs Petilla, for those of you people here who are from Leyte.
Later we will take the case of Petilla himself, yung ano, no not Petilla but Larazabal, when we
take up Election Laws. But, class, ang nangyari dito, na-proclaim ang vice-governor at members
of provincial board, hindi na proclaim ang winning candidate for governor dahil may
disqualification case which had been filed and then, consistently Section 6 of Republic Act 6646,
hindi pwedeng i-proclaim. So, in the meantime, pag dating ng July 1, the vice-governor, the
proclaimed vice-governor-elect became acting mayor. Yung number 1 board member nagassume din sya, hindi sya agad nag assume, nagpunta sya sa Secretary of Local Government.
The Secretary of Local Government issued an appointment, you are hereby appointed acting
Vice-Governor si Menzon, so yun. Nong kumukubra na ng sweldo si Menzon for vice-governor,
ayaw pirmahan ng acting Governor Petilla, thats why Menzon went to Court, thats why its
Menzon vs Petilla, magkasama lang sila noon sa ticket, pero nong ano na, nag-aaway na sila.
The Supreme Court said, at the very least, Mengson is a de facto public officer since there was
no de jure public officer he was entitled to receive compensation for his being de facto vicegovernor of Leyte, alright. All cases, we have a relatively new one, pero ito na ito, were the
Supreme Court reversed a decision of the Commission on Elections. When the Commission on
Elections ordered the losing candidate to refund, pay to the winning candidate. Ganito yun,
election, pagkatapos, ordered winner by the RTC itong si X, so, assumed office, etc., even as the
case was with the Commission on Elections. The COMELEC decided, why is the real public
officer having been elected, so, the COMELEC ordered X to pay to Y all that he have received.
When the Supreme Court decided the case, the Supreme Court said, NO! at least because he
was ordered proclaimed by the RTC and it was pursuant to that he assumed office, it is at the
very least, a de facto public officer, and since he was a de facto officer, there was no de jure
public officer at that time, he should therefore, receive compensation. When may the person who
had held physical possession of the office be compelled or be ordered to pay whatever it was he
has received? Well, after everything it is decided, that somebody else is entitled to the office, he
may be ordered to do so if he is not a de facto public officer but a usurper. And so, if a problem is
given, and the problem zeros in on whether or not the fellow should be made to pay of whatever it
was he received to the winning candidate, etc., etc., test the facts of the problem. If the fellow,
being made to pay is a de facto public officer then he cannot be made to pay, he is entitled. But if
he is merely a usurper then he may be made to pay, or to refund, or to reimburse, or to deliver to
the winning candidate whatever that it was he received by way of compensation, salaries or other
emoluments incident to the office, okay.
Commencement of Official Relations
So that takes care of the de facto concept of public officers. We move on to the meat of
Public officers. Official relationship, commencement of official relationship. What do we mean by
official relationship? Official relationship is the relationship between the individual and the public
office. There is this, the vinculum that ties the public officer to the public office, that is your official
relationship and so, what commences this official relationship. Official relationship is commenced
either by appointment or by election. Election we will take up tomorrow, second part of
tomorrows session, we will already start with Election Laws. Hindi ko lang tiyak kong matatapos
ngayon, hindi na yata natin kaya ng buo ang public officers ngayon, so may be, bukas we will
take up termination of official relationship and the second part of tomorrows session will start
already with Election Laws. And since, katatapos pa lang ng election medyo interesado pa kayo,
bagamat mukhang natabunan na ni Angelo dela Cruz ang politica, mukhang hindi na matutuloy
ang pag protesta ni FPJ, okay. Bukas na lang natin pagusapan yung election (laughs), bukas

153

kasi marami akong istorya dyan sa mga election nay an, tatlong araw tayo sa istorya, kalahating
oras tayong mag didiscuss ng law (laughs), istorya tayo bukas ng mga election, alright.
Commencement. We speak of appointment, appointment as the mode of commencing
official relationship. First, the definition of appointment. Appointment is the selection by the
authority having the power of an individual who is to perform the function of a given of public
office. It is distinguished from designation, in that designation officially, is merely the grant of
additional duties to one who is already in public service. It is also distinguished from the
commission, because the commission is the written evidence of the appointment.
Appointment
Appointments may be classified into permanent or temporary, and special qualifications
of appointments made by the President, regular and ad interim appointments. A permanent
appointment is one extended to a person who possesses all the requisites qualifications for a
given public office including the Civil Service eligibility required by law for the position. And it is
intended really to be a permanent appointment and the appointee does acquire security of tenure.
On the other hand, a temporary appointment may be issued to one who does not possess all the
qualifications but which may be, nonetheless, because of an emergency perhaps, or one who
does not possess, have possessing the standard qualifications requirements but not possessing
the required civil service eligibility for the position. A temporary appointment is necessarily an
acting appointment, it can be revoked at will with or without cause, okay.
Certain principles relating to this, una, as we said, the characterization of appointment is
a prerogative of the appointing authority, so, as to whether the appointment is permanent or
temporary depends on the appointing authority. However, if the appointment is issued as a
permanent appointment, the appointee must possess all the qualification requirements prescribed
by law for the position including the Civil Service eligibility required by law. Thus, class, were the
appointment is intended as permanent but, the appointee does not possess the requisite Civil
Service eligibility, even if it is intended as permanent, it is merely temporary. Hachakuso vs
Macaraig, on the POEA Administrators position. Hachakuso was appointed as Administrator of
the Philippine Overseas Employment Administration, there was no characterization of the
appointment as temporary so the presumption was it was a permanent appointment. Later, the
President decided to replace Hachakuso. Hachakuso refused to vacate, said his appointment
was permanent, he is covered by the Civil Service Law and therefore, he may not be removed
without just cause and not in accordance with the procedure prescribed by the Civil Service Law.
It was determined that one of the qualification requirements for purposes of the Civil Service
anyway, for the appointment of the position of Administrator is that the Administrator appointed
must possess career executive service officer eligibility. It seems that Hachakuso did not possess
a CESO eligibility. Accordingly, the Supreme Court said, the appointment was merely temporary,
even if it was intended as permanent appointment. But as I said, class, early on, even if the
appointee has 1 thousand eligibilities, if the appointing authority says, hindi, hindi pa ako
naniniwala sayo, temporary ka lang, temporary lang ang appointment. If it is denominated or
characterized as a temporary appointment by the appointing authority, then, the discretion
prevails even if the appointee has all and more of the qualification requirements, alright. And so,
in Gloria vs Court of Appeals, ito ang unang Gloria case, a person appointed without Civil Service
eligibility, so, necessarily temporary, not the requisite Civil Service eligibility. While he is in the
position of the office he acquires the required Civil Service eligibility, he now demands, he now
says, that his appointment has been converted into a permanent appointment. Wrong!
Acquisition of the required Civil Service eligibility, will not convert a temporary appointment into a
permanent appointment. There is need for another appointment, this time a permanent one to be
extended to the person appointed because now he has already the requisite Civil Service
eligibility. Note, that in a number of cases, nagkakaiba-iba ang Supreme Court, kung minsan ang
tawag doon acting appointment, temporary appointment, and in one case at least, there was the
mistake in use in the term designation. When designation is used to convey an appointment,
instead of merely giving additional duties to one who is already in public service, when
designation is the term used to the issuance of the appointment, then, it has always been held to
mean temporary appointment, not a permanent appointment. And so, class, may mga cases ibaiba, paisa-isa lang, then tignan natin, we do not have to take them all up. In the case of
Romualdez, for example, he was a, Norberto Romualdez , the third or the fourth na yata ito, si
Botung, who at the time of the EDSA revolution, after the first EDSA revolution, had already been,
was in fact, an attach, he held that office permanently. He came back to the Philippines and
accepted a temporary appointment as deputy administrator of PHILCOA, I think it was,
temporary. After his temporary appointment lapsed, he wanted to go back to his being an
attach, the Supreme Court said, NO! When you accepted a temporary appointment, you
abandoned your permanent appointment, now that your temporary appointment has lapsed you
cannot return to your original position because you had already abandoned it and therefore had
forefeited that position already. When an appointment is subject to certain conditions, the fact

154

that certain conditions have yet to be fulfilled makes the appointment a temporary one instead of
a permanent appointment. However, even if the appointment is temporary, class, if there is a
specified period for the appointment, specified period for the duration of the appointment, that is
temporary
July 20,2004
except for cause. Appointment na may specific period prescribed. And so, notice the
distinction between permanent and temporary in the matter of security of tenure, were one is
appointed to a permanent, permanently appointed to a position in the government, in the Civil
Service, one enjoys security of tenure and that means he cannot be suspended or dismissed
from the service except for cause, anyone of the causes prescribed in the Civil Service Law or
repeated in the Administrative Code and only in accordance with the procedure prescribed by the
Civil Service Code. But only if you are a temporary appointee, then, you can be terminated at
anytime, except, yung ating sinabi na may specific period for the temporary appointment, alright.
The other classification of appointments is, of course, the classification of appointments
into regular and ad interim. We discussed this already when we discussed the power of
appointment of the President. There is just one thing Id like to remind you about. First, a regular
appointment is a permanent appointment. An ad interim appointment is also a permanent
appointment, alright. Second, a person who has been appointed under an ad interim
appointment may, the appointment may cease when the Commission on Appointments by passes
the appointment, or when the Commission on Appointments fails to act on the appointment within
the 30 day period prescribed under the Constitution, okay. However, Matibag vs Benipayo, the
Supreme Court said, he may be extended another ad interim appointment. For that matter, if
Congress should adjourn again without the Commission on Appointments acting on the second
ad interim appointment, he may be given a third ad interim appointment, or a fourth, and a fifth,
kung hindi parin ina-action-nan, unless, the Commission on Appointments disapproves the
appointment because when there is a disapproval by the Commission on Appointments, then,
that disapproval is final upon the appointing authority, upon the President of the Philippines. The
President can no longer appoint the individual whose appointment has been disapproved by the
Commission on Appointments. Many years ago, when Cory Aquino appointed Miriam Defensor
Santiago as Secretary of the Department of Agrarian Reform and she had to face Congress and
the Commission on Appointments, and she quarreled with the members of the Commission on
Appointments during the hearing and when she went out of the hearing, confronted with media
people, she called the members of the Commission on Appointments as fungus face, and, kung
ano ano kaya ang sinabi(laughs).
The Commission on Appointments disapproved the
appointment of, yun ang disapproval talaga, kasi ang Commission on Appointments normally
hindi naman talaga nag di-disapprove yan kung hindi medyo, panay lang ang kanilang by-pass,
yun dinis-approve lang talaga yun, lalo lang naman nag-init si Miriam, panay naman ang banat
nya, mga ignorante daw yun mga, brains as big as, lays eggs na ano, talaga namang matinding
matindi si Miriam noon, sabagay matindi pa rin naman ngayon (laughs). Isipin mo sasabihin ba
naman kay Fernando Poe, Jr., mag-aktor ka na lang uli, huwag ka ng ano, alright. So, yun lang
kasi, ang bago-bagong concept, of course, class, huwag nyong kalimutan yung Sarmiento vs
Mison, na yung apat lang. The classification of appointments into regular or ad interim may be
used only in the case only of four classes or sets of appointments, appointment of heads, of
executive departments, appointments of ambassadors, other public ministers and consuls,
appointments of the Armed Forces of the Philippines from the rank of colonel and naval captain,
and appointments of officers whose appointments are expressly vested in the President under the
Constitution. All others do not require confirmation and therefore, may not be classified either as
regular or ad interim, okay.
Appointments, well, siguro yun mga steps in the appointing process, kasi, for regular
appointments, meron munang nomination, the nomination is sent to the Commission on
Appointments. And so, the nomination must be acted upon by the Commission on Appointments
and the next step is approval by the Commission on Appointments. With the approval comes the
issuance of the commission and of course the acceptance of the appointee. Class, the Supreme
Court has said that the appointment must be accepted by the person to whom the appointment is
issued because no person can be compelled to accept a public office, except, in the character of
an office required under the Constitution in defense of the State, required of the citizen, would be,
in defense of the State, required would be personal military or civil service. Otherwise, this would
be tantamount to involuntary servitude, alright. Now, the other thing is, of course, when the
appointment is made to the career service of the civil service, then, there this is need for
attestation by the Civil Service Commission, that appears to be a necessary element, necessary
step, and therefore, theoretically the appointment is not yet complete until the attestation is given
by this Civil Service Commission.

155

Note, class, that the Civil Service Commission, in connection with this has jurisdiction.
Jurisdiction over appointments, promotions, transfers, reinstatement, re-assignment, detail,
separation, dismissal, etc., and so, a petition for quo warranto filed in court to protest the validity
of an appointment in the Civil Service by a person who claims to be, to have better title to the
position, will not lie. The Court cannot entertain that petition for quo warranto. First, because the
Civil Service Commission has jurisdiction and therefore, under the doctrine of exhaustion of
administrative remedies particularly the doctrine of primary administrative jurisdiction or the
doctrine of prior resort, it is the Civil Service Commission that must first be invoked before any
court action is taken, alright. Second, the Supreme Court also rule, that the Civil Service
Commission can recall an appointment which it had earlier attested when it is shown that the
appointment was obtain with fraud, or with misrepresentation, etc. Third, the Civil Service
Commission can conduct an investigation of cases brought up to it originally or on appeal,
although, as a rule, an original case filed with Civil Service Commission will be referred by the
Civil Service Commission to the agency concerned. But theoretically it can assume jurisdiction
over the same. And so for example, in the case of cheating in Civil Service exam, the Civil
Service Commission can undertake an investigation into this. In a relatively recent case, in the
case of Cruz vs Civil Service Commission, the Supreme Court said, there is no violation of due
process even if conducting the investigation is the Civil Service Commission, prosecuting is the
Civil Service Commission and eventually, deciding the case will still be the Civil Service
Commission. There is no violation of due process of law there. The Civil Service Commission is
vested with the authority to do so. But in the matter of attesting appointments, class, the
Supreme Court said, the Civil Service Commission does not enter as a surrogate agency in
charge of the appointment. What are we saying? The matter of attesting an appointment
involves only a determination of whether or not the appointee possesses the minimum
qualification requirements prescribed by law for the office. Therefore, it cannot, the Civil Service
Commission cannot substitute its discretion for the discretion of the appointing authority. And so,
we look at the discretion of the appointing authority. Discretion as to the character of
appointment, sinabi na natin yun, discretion as to who is to be appointed. Marami ng kaso yun,
while under the Civil Service Law there is a provision to the effect that an officer or employee in
the Civil Service enjoys preference in promotion, that preference granted by law cannot prevail
over the discretion of the appointing authority in selecting the individual who is to be appointed.
Wala tayong problema dun, masyado ng maraming kaso yun. Note, however, class, that the
position to which the person must be appointed, is to be appointed, must be vacant, because
were the position is not vacant then there can be no valid appointment. Maraming cases yan.
That is very, very self explanatory, class, bat marami tayong naging kaso dyan, bakit? Kasi,
either pinaalis ng isa at nag appoint na dito sa posisyon na inalisan, e hindi pala umalis at
lumaban pala yun pinapaalis, e di hindi bakante ang posisyon. Maraming cases na ano, o di
kaya may promotion, we will talk about that in a little while, yun automatic reversion rule under the
Civil Service Law. The automatic reversion rule, maraming appointment, simultaneous,
promotion on appointments, anyway.
On the matter of judicial review, class, as a rule the exercise of discretion by the
appointing authority is a political question. Kaya lang talaga lang sa government offices, those of
you who is working in the government, know very well na lalo pa ngayon na LLB ka na ganyan,
pag labanan ng promotion sa opisina, ang hindi pa rin na, what we have failed miserably to get
from the Commission on Higher Education was a resolution to the effect that that the Bachelor of
Laws degree should be really considered as a Masteral Degree man lang, particularly for original
appointments, because, the Commission on Higher Education has already issued a resolution
that for purposes of promotion in government agencies, an LLB degree should be considered as
a Masteral Degree for promotion purposes but for entry into the government service, LLB is
considered only a Bachelors Degree. We had been fighting for this since 1997, hindi pa rin
makuha. When the Board of Legal Education will eventually be constituted, hopefully, the Board
of Legal Education will then come out with this. At hopefully, hind lang Masteral Degree, Doctoral
Degree na (laughs), aba apat na taon itong pinaghirapan, four years e di doctoral na yun, sa
ibang courses, one year and a half, masteral na, another one year and a half, may doctoral
degree ka na, we should come up with ano, and call this JD, already, Doctor of Jurisprudence.
Isipin nyo yan! (laughs). Papasok kayo sa opisina kung saan, Doctor! (laughs). Noong, when I
was Undersecretary of Education, when I was new in the Department of Education, talagang ano
eh, pag pinakilala sayo si doctor ganyan, si doctor ganya, nahihilo ka na puro doctor ito, tanungin
mo nga, mga doctor, ano bang pwedeng gamot sa sipon? (laughs). Wala dahil puro doctor of
education ang mga yun, Doctor of Philosophy and Education, Doctor, nagbiro ako minsan doon,
dito lang ako nakakita, I think it was a Monday convocation, noon lang ako nakakita ng doctor na
hindi man lang makagamot ng sipon, wla man lang tumawa doon sa ano, hindi na ako umulit
(laughs). Pagmumurahin ako ng mga ito, alright. So, thats it, class, ang LB, kasi, those who are
employed in the government know very well, that with an LLB, this is added credentials, added
qualifications ito, for purposes of being rated for promotions, ayos na ayos ito, atsaka yun na nga.
I understand that the CHED has already a resolution to this effect that this is really treated as a
Masteral Degree already for promotion purposes, although not for entry, okay. Ang isa pa, na

156

gusto ng CHED gawin noon, pwedeng pumayag sila na for entry ang LLB be considered Masteral
Degree already, pero sabi ng CHED, we will consider that, provided that, ang LLB is coupled with
passing the bar, sabi ko, hay naku, you think your LLB, your employees with LLB degrees when
they pass the bar they will leave your offices, hindi na magtyatyaga sa suweldo nyo, ang laki ng
kita ng mga abogado sa labas (laughs). Naalala ko lang si Justice Fernandez, professor namin
yan sa Criminal Law, tinawag ako nyan sa recitation, nakita nya nakalagay ang kamay mo sa
bulsa, Oh, a lawyer should never be found with his hands inside his own pockets, it should be
found in the pocket of another person (laughs), yun ang ibig ko sabihin, malaki ang kita pag
abogado na, ang kamay in the pockets of others already, hindi na magtyatyaga sa opisina. So,
alright. Then we move on to appointments in the Civil Service.
Civil Service
Civil Service, it is at this point that we look at Article 9-B, first, on the Civil Service Commission.
The Civil Service Commission, of course, is composed of a Chairman and two Commissioners
who must be natural born Filipino citizens and at the time of the appointment at least 35 years of
age with proven capacity for public administration and must not have been candidates in the
election immediately preceding the appointment. They are appointed by the President with the
consent of Commission on Appointments for a term of 7 years without re-appointment. Just like
all the other Constitutional Commissioners, they cannot be appointed or designated in a
temporary or acting capacity, and for this purpose, you have Brillantes vs Yorac. Sixto Brillantes,
Jr., the lawyer of FPJ went to the Supreme Court to contest a designation made then by
President Cory Aquino. It was a designation of Heidi Yorac as acting Chairman on the
Commission on Elections even as the appointment was predicated by a statement that this is not
really an appointment or a designation, that this was merely being made because there was no
chairman on Commission on Elections at that time, and it was made only for the purpose of
orderly administrative operations of COMELEC. Atty. Brillantes, nonetheless, went to court on
this, and the Supreme Court upheld Brillantes and said, that was a designation, nonetheless, in
an acting capacity and so, contrary to the Constitution, alright.
The only other thing, but which you have already mastered in Labor, I understand that
when you talked about the jurisdiction of NLRC, this is the first thing you learned. The scope of
the Civil Service, the Civil Service embraces all branches of divisions, instrumentalities and
agencies of government, including government owned or controlled corporations with original
charter. Class, earlier, we were talking about government agencies and in connection with State
Immunity from suit. We spoke of government agencies with charters, those that are incorporated.
Were looking for at government owned or controlled corporations that were created by special
law, the law creating this government owned or controlled corporations. This government owned
or controlled corporations were created by law and that law that creates or vests additional
powers to the government owned or controlled corporation is the charter of the government
owned or controlled corporation. And so, you have a number of cases there already, for example,
in the matter of National Housing Authority. The National Housing Authority is of course, merely a
continuation according to the Supreme Court of the PHHC, The Philippine Homesite and Housing
Corporations which was really a private corporation. A corporation without an original charter,
and so, NLRC has jurisdiction. In the case of University of the Philippines, Water districts, the E.
Rodriguez Memorial Hospital in Marikina, the Philippine National Red Cross, these agencies
according to the Supreme Court have their respective charters and therefore, they are embraced
by the Civil Service. The Civil Service is supposed to be the central personnel agency of
government and so, it is vested with the authority precisely to pass upon all of those
appointments including various steps or various other personnel actions, and then of course, it
has quasi-judicial powers, Civil Service Commission has quasi-judicial powers, and the Civil
Service Commission passes upon issues such as protests over appointments as well as
administrative disciplinary cases involving public officers and employees who belong to the Civil
Service. As we said earlier, the Civil Service Commission has both appellate and original
jurisdiction over such disciplinary cases. Although, if one files a complaint directly with the Civil
Service Commission, the Commission may refer the matter for initial investigation to the agency
concerned, although, theoretically it may also assume original jurisdiction over the complaint. It
assumes appellate jurisdiction over personnel actions, decisions, made by other administrative
agencies, the agencies that are embraced in the Civil Service, alright.
Classes of Civil service
Now, we go to the classes of service in the Civil Service. There are now only two classes
of service, the career and the non-career service. And so, please, class, if you should read all of
those other cases were there are a number, non-classified, non-classified, exempt service, wala
na yun. So, when you also read cases about appointments other than temporary and permanent,
wala na rin yun classification na yun, kamukha ng provisional appointments, there are no longer
any provisional appointments in the Civil Service, wala na lahat yun, so, noon mga unang

157

panahon pa yun. In 1995, I recall that one of the questions in the bar exams had to do with the
provisional appointment because I think in 1993 or 1994, the Supreme Court decided a case of
Regis vs Osmena, involving provisional appointments. That case actually was decided only in
the 1990s but it started at the time when Sergio Osmena, Jr., was still mayor of Cebu City and
that was a long, long time ago, long before you were born, so, never mind that.
So, we move on to the career and non-career service. A career service of the Civil
Service is supposed to be governed by certain principles or characteristics such as entry or
appointment made on the basis of merit and fitness to be determined as far as practicable by
competitive examinations. Those who belong to the career service have preference for
promotion, opportunity for advancement to higher positions that is, and of course, security of
tenure. And security of tenure, again, means that the public officer or employee cannot be
suspended or removed from public office without just cause and not if it is, if the investigation is
not conducted in accordance with the procedure prescribed under the Civil Service Law. So,
what are the career service groups that are supposed to be included? First, the open career
which covers actually most of the offices, branches, subdivisions, instrumentalities and agencies
of government were entry is really based on merit and fitness to be determined as far as
practicable by competitive examinations. This is a misleading statement, class, because the
competitive examination is not an examination given to all the applicants who compete for
specific government positions. The examination is given at large and so one acquires career
service, professional or non-professional eligibility and having acquired that eligibility one is
presumed to be fit and meritorious already for purposes of appointment. Little does the
Constitution know that the appointment of government is still, based on, well, based on eligibility
among others but mainly on who you know, alright. Congressmen can always threaten the head
of agency who does not appoint his recommendee by saying that the budget of the agency will be
cut or whatever, so ayun, that is the more important eligibility required, okay. Closed career
mainly for technical people in the Department of Science and Technology for example, are certain
items or positions that belong to the closed career of the Civil Service. Third, the career
executive service which is supposed to include high level officials in government including
Regional Directors, Bureau Directors, Assistant, Secretaries, and Undersecretaries, they are now
required to have the appropriate career executive service officer eligibility, in fact, in other offices,
for example, in Department of Education I understand that even Division Superintendents or
Assistant Division Superintendents are already required, to acquire CESO eligibility. In the
Department of Works and Highways, District Engineers who are simply regarded as Provincial
Heads or District Heads of the DPWH are now required to acquire the career executive service
eligibility. Then, we have other career service positions that are not included in the career
executive service class, for example, in the Department of Foreign Affairs now, they have a
special career service, I dont know, career service class if you were to consider that. You have to
acquire the kind of eligibility that is given only by the Foreign Affairs Department to qualify you for
foreign officer, whatever. Eventually, leading up to your becoming head of mission or
ambassador, although, there are still political ambassadors and political ministers that are open,
these are the people who do not have to acquire that kind of eligibility because they have higher
eligibility than that, being close to the appointing authority, okay (laughs). Then of course, we
have the Armed Forces of the Philippines, although, they have a separate merit system. And
then, we have personnel in the government owned or controlled corporations with original
charters. Personnel, not the governing boards because the governing boards are peopled by
appointees not to the career but to the non-career service. And then, you have permanent
laborers were the skilled, semi-skilled or non-skilled. Now, lets go back to the career executive
service because we have two cases there and we have a new concept precisely of appointments
in the career executive service. We have the case of General vs Rocco, and the 2002 decision in
the Dimayuga vs Benedicto. In both cases, the Supreme Court said, the requirement for
acquiring security of tenure, the requirements for acquiring the security of tenure in the career
executive service are;
First, acquisition of the appropriate, of the corresponding career executive service
eligibility. Which just have given of course, by the Civil Service through the Career Civil Service
Board, maano ito, medyo mahirap ng konti ang exam na ito, especially for those, na hindi pa
incumbents of the positions, to which they aspire for, kasi maraming steps ang pagiging CESO
eligible eh, until finally, you take the Math B muna and then you go through interview, noon you
are required to go even on some kind of workshops, seminar and yung pupunta ka pa sa,meron
ka pang pupuntahan na mga lugar pra i-apply mo doon, and then, marami masyado, pero. So,
first, acquisition of the appropriate or of the career executive sevice eligibility;
And number two, appointment by the President to the career executive service rank. The
appointment is to the rank, not to the position. And then, so the concept, class, the concept is
new as far as we are concerned because the CESO officer is not appointed to an office, to a
position, he is appointed to a rank and so if he is appointed to a rank and he is, for example,
given a rank of Bureau Director or Assistant Secretary in one Department, can he be transferred

158

to another department? Bureau Director, can he be transferred to another Bureau, to another

Bureau in another Department? Because this, you know, this revolutionizes are concept that
transfer that is unconsented is a violation of security of tenure clause of the Constitution. Anyway,
in General vs Rocco, emphasized yun, rank! And in Dimayuga vs Benedicto, rank! Not position.
What does this mean? This means that if you are a Bureau Director in the Bureau of Land, Land
Management, for instance, you can be transferred to another Bureau without violation because
ang sabi ng Supreme Court, you are appointed to the rank not to the position. As long as you
retain your rank, your salary is based not on the position but on the rank to which you were
appointed by the President of the Philippines. When the President granted you, when you
acquired the CESO eligibility and the President granted you the appointment to your rank, so, ito,
kasi noon akala natin, before this decisions came out, ang akala natin noon, na kasama lahat
yan. If you are undersecretary in a department, we thought all along then, that if you are a CESO
eligible, then, you can no longer be removed, replaced, transferred, but its not correct pala, yun
na, this is how the Supreme Court explained it, rank. Rank ang iyong appointment. And so, you
cannot claim that you have been demoted in salary, your salary is based on rank not on your
position. You cannot claim that you have been demoted in level or in rank because you retain the
same rank. Status, you cannot claim that, because again, the determining factor is your rank not
your position. Ngayon, so, that is the, ewan ko kung itatanong sa bar exams, pero hindi ako
naniniwala, anyway, it is there, so yun, alright.
What constitutes the non-career service? The non-career service is supposed to be
characterize by appointment based on other things, not necessarily merit and fitness based on
competitive exams, merit and fitness pa rin pero iba ang considerations doon sa merit and fitness
na yun. And then, of course, the position normally carries with it a specific term or period, fixed
period, or in during precisely at the pleasure of the appointing authority, or co-terminous with that
of the appointing authority. And so, there is no security of tenure in that sense, although, for
example, in the case of member of a confidential staff of an elected official, since the elective
officers as well as the confidential staff belong to the non-career. In the case of confidential staff,
if a member of a confidential staff is dismissed, removed, or replaced, what happens? There is
no removal, there is expiration of term. And, the basis of the changed, for the transfer or removal,
or replacement is not at all any of the cases mentioned in the Civil Service Law, it is basically lost
of confidence. So, what are those embraced in non-career? Elective officials and their
confidential staff, heads of departments, cabinet ranks and their confidential staff, chairman,
commissioners with, those with appointed for a specific term and their confidential staff, and then,
contractual personnel, except, that here, the law comes in and says, that contractual personnel
appointed and falling within this non-career service are those who possess certain skills or
knowledge not available in the agency. And so, there is need for the agency to contract the
services of this individual who is supposed to pursue or to undertake specific project or contract
not to exceed one year. And he is not supposed to be directly under the supervision any one of
the agency. And then, of course, seasonal or emergency laborers. Now comes the case of
Montecillo vs Civil Service Commission, in Montecillo vs Civil Service Commission, even as we
have had this listing of positions that belong to the non-career service, the Supreme Court said, it
is within the authority of the Civil Service Commission to add to these positions that are
considered non-career. I think Montecillo is 2001, decided in 2001 by the Supreme Court.
The confidential staff normally of your executive, your cabinet members, of your elective
officials, hold office co-terminous with that of the elective officials, the cabinet members, the
heads of the commission boards, etc., normally co-terminous. I think it was in Urcullo vs Civil
Service Commission, were the Supreme Court spoke of this co-terminous, co-terminous officials
and employees, They may be co-terminous with the creating or appointing authority in which
case, kamukha nyan, appointed by a cabinet member, co-terminous lang to the duration of the
cabinet members. It can be co-terminous with the incumbent, co-terminous with the incumbent
means that if the incumbent leaves already then the position will automatically be abolished. It
can be co-terminous with a fixed period of time, so, that when the fixed period lapses, then, the
position is also deemed abolished. Class, sabagay, mabuti na lang ito pag practice, but I dont
think that the examiner will be interested with this, co-terminous, anyway.
Except from the requirement of examination, merit and fitness to be determined as far as
practicable by competitive examination are a number of positions, policy determining, primarily
confidential and highly technical positions. One is said to be a policy determining position when
the incumbent lays down principle and fundamental guidelines or rules, or, formulates a method
of action for the government agency to follow. Cabinet members are of course, in that position,
policy determining. Then, we have the primarily confidential positions, the definition is a little bit
pornographic. It speaks of were, primarily confidential denotes not only confidence in the aptitude
of the appointee for the duties of the office, but primarily close intimacy that ensures freedom of
intercourse without embarrassment, doon ang medyo ano (laughs), or freedom from misgivings
or betrayals on matters of State, on confidential matters of State. And so, we have a number of
cases, class, Montecillo nanaman. In Montecillo, which is the relatively recent decision, the

159

Supreme Court said, that the Civil Service Commission under the Administrative Code of 1987
can classify positions into primarily confidential. But when the law, for example, when the law
passed by Congress itself provided that the positions are primarily confidential, such as, what
happened in the charter of PAGCOR. Is this determination by Congress, binding upon the
courts? In PAGCOR vs Salas, Civil Service Commission vs Salas, Civil Service Commission,
PAGCOR vs Salas, the Supreme Court said, NO! In fact, in PAGCOR vs Reliorasa, earlier, the
Supreme Court said, NO! This is merely an executive determination, executive or legislative
determination which is not binding on the courts because the Supreme Court said, the primarily
factor in determining whether a position is primarily confidential is still the nature of the functions
of the position, nature. And so, the Supreme Court said, without declaring as unconstitutional, the
provision in the PAGCOR charter to the effect that all positions in the PAGCOR are considered
confidential without saying so, the Supreme Court nonetheless said, that is not binding because
nature of the functions. The Supreme Court went back to an old, the old Civil Service Law, and
said, that even if the present Civil Service Law does not speak of nature it is still the main factor in
determining, the main criterion in determining whether or not the position is primarily confidential.
In fact, the Supreme Court, in the Salas case, made a reference to yet another old decision were
there was mention, and the Supreme Court mentioned this with approval that you even speak of
the proximity rule in relation to a primarily confidential position. Ano yun proximity rule? You even
look at were the employee or the officer works. Is his or her office really proximate to, very near,
were the boss works to allow precisely for freedom of intercourse without embarrassment
perhaps (laughs), alright. Pero, the Supreme Court quoted with approval that old case of Piniero,
on the proximity rule. So yun, class, thats what the Supreme Court has said, the new thing is
that even in Salas, the Supreme Court spoke of the President also having authority to declare a
position primarily confidential. Now we have Montecillo, were the Supreme Court said, that the
Civil Service Commission can and has authority and classify certain positions as primarily
confidential. Then of course, the case of highly technical positions were technical training and
expertise is required in a high or supreme degree and I am glad to tell you that in a series of
decisions made by the Supreme Court, the Supreme Court has declared the Office of the City
Legal Officer or City Attorney, although, it partakes of both, the characteristics of both highly
technical and primarily confidential is really also considered as highly confidential. In other
words, acquisition of, being a lawyer, means that you have knowledge and training of technical
things and technical skills in high or supreme degree, so, yun, at least ang abogado tinitingala ng,
kasi mga abogado rin kasi sila sa Supreme Court kaya ganyan, alright.
So, these are your career and non-career positions and your positions that are exempt
from the requirement of merit and fitness determined through competitive examinations. Let us
look at other personnel actions;
Promotion
First, promotion. Promotion is movement within the same agency, movement from one
position to another that entails additional duties, additional responsibilities and as a rule also is
accompanied by an increase in salary and compensation. So, if you look at the Civil Service Law
or Administrative Code for that matter, you have that preference in promotion enjoyed by
members of the career service of the Civil Service. But again, of course, class, remember that
this preference in promotion does not prevail over the discretion of the appointing authority. In
the matter of promotions, the appointing authority can of course, pick somebody outside the
agency and decide not to promote any one in the agency. Pick someone from the outside and
appoint him to the position even as you have many people below waiting to be elevated or
promoted to the position. Then we spoke of the automatic reversion rule, automatic reversion
rule, it speaks of several promotions were the appointments or promotion of the appointments are
made simultaneously and so, if this is position number 1, position number 2, going up, for
example, so A, dito muna, C is promoted to position 4 which is higher, B therefore, now is
promoted to position 3, A is promoted to 2. This is supposed to be a domino. The Civil Service
automatic reversion rule says, that if these are simultaneously made and simultaneously
submitted to the Civil Service Commission, and the appointment to the higher position is
disapproved, then, automatically, all the others are disapproved and automatically those who are
deemed promoted are reverted to their original positions.
Promotion
Alright, then of course we have what is provided for in the civil service law, the right to
preference in promotion. This is also known as the next in rank rule which provides that generally
the officer holding the position next in rank shall be given preference in the matter of promotion
whenever the position next higher in rank shall be vacated. Nonetheless we have already
mentioned this at least twice that this preference in promotion does not prevail over the discretion
of the appointing authority. It is still the appointing authority who still selects the appointee even if
he is not next in rank. As long as he possesses the minimum qualification requirements

160

prescribed by law to the office and possesses the requisite civil service eligibility required for the
position.
Vacation and Sick Leave
Then of course the right to vacation and sick leave.
Class, while before mayors,
governors were not supposed to be entitled to sick and vacation leave benefits because mayors
and governors, local government heads did not have specific hours of work which is true enough
a mayor may be playing mahjong and somebody comes to see him while he was playing
mahjong asks the mayor to sign a voucher or whatever and so between pongs the mayor signs
the voucher and whatever time of day it may be. But now under the Local Government Code, it is
specifically provided that the elective local public officials are now entitled to these benefits of sick
leave and vacation leave. The entitlement is to 15 days of sick leave and 15 days vacation leave
for every year of satisfactory service and then the rule today is you can accumulate as many
many of the leave credits you may have. Before the rule was you can accumulate only up to 300
days of vacation leave credits. Beyond that you forfeit and so you should take a vacation in order
you wont forfeit additional accumulated sick leave credits, now ah, vacation leave credits. Now,
you can commute, commute means convert to cash, commutation of vacation and sick leave
credits and of course class at one point, at one point the, some government agencies would
make a deduction. Even when you are paid on a monthly basis, when you are absent on a
Monday, or youre absent on a Friday, you are also considered absent also on Saturday and
Sunday. And so the corresponding deduction is made on your salaries. The Supreme Court
finally came out and said that is not possible since you are not required, even if you are absent
on a Friday and Monday, on the following Monday, then you should not be considered absent on
Saturday and Sundays because Saturdays and Sundays you are not required to work so you
cannot be absent so no corresponding deductions should be made on your salaries.
Maternity Leave
Alright, then the right to maternity leave. I dont know ano na ngayon ang right to
maternity leave then we also have the right to paternity leave under the, even in the private
enterprises. Maternity leave used to be 2 months. 2 months of maternity leave with pay. With
full pay. Ordinarily a woman employee who is pregnant will not take kasi, she is supposed to take
her maternity leave of about 2 weeks before expected delivery and then 6 weeks after delivery.
But most of women employees do not take advantage of the maternity leave prior to delivery and
they start their maternity leave only on the date of delivery. So that they have full 2 months for this
purpose. You know class, I have had the opportunity of looking at social insurance benefits in
other countries when I was with the GSIS, I had the opportunity to go abroad and look at and
compare social insurance benefits of Filipinos and even lately for example in Canada today, in
Canada a lady employee who gets pregnant may choose whether to go on leave with full pay for
6 months or go on leave with half for one whole year after delivery. Canada of course is underpopulated they are encouraging people to have children. On top of that, when you give birth to a
child from date of birth, the child is given allowance about $300 a month by the Canadian
government. And so, Filipinos who are prolific should go to Canada and make as many children
to be entitled an allowance of $300 a month, Canadian dollars a month for each child. And the
social insurance benefits are so, are so unbelievable class. Here was, the last time I was there a
Filipino who was already a Canadian citizen, a foreigner Filipino already a Canadian Citizen just
gave birth, yung babae. I asked the husband. She stayed in the hospital for 2 days, 2 days lang,
normal delivery after 2 days umuwi na sila. Doctor ng asawa nito, yung lalake. How much did
you pay the hospital for your wifes medical bills and hospital bills? Sabi sa akin 4 dollars. 4
dollars? What were those $4 actually for? Sabi niya well ordinarily it would have been free but I
have to pay $4 because I have to pay $1 for telephone and $1 a day for the television in the room
of my wife. Ganun, ganun ang..Anyway, we will probably get there. I dont know the Philippines
will probably get there not maybe during our lifetime ladies and gentlemen. Ok.
Retirement Benefits
Retirement benefits also. Ito nga eh, ang retired, retirees dun ganun din iba ang social
insurance nila. Ang retirees dahil halos may mga sakit na yun, may mga maintenance dosage ng
kanilang kanilang iniinom nila. I talked to one former Filipino again, former Filipino. He was
preparing to come to the Philippines for an extended vacation of 3 months. So sabi niya
kailangan bumili siya ng mga gamot na tinitake niya, maintenance etc. prepare everything for his
prospective 3 months of vacation in the Philippines. You know how much he spent for all of these
3 months medical, medicine ano, $16 para sa 3 months na yun. Kaya ok.. even retirees they
enjoy but of course iba rin naman yung mga retirees during winter they have to you know shovel
snow at malamig di kamukha dito. For them Philippines is still paradise except we cannot afford
to give them the same social insurance benefits. In America, our Filipinos want to come here.
Filipinos who have become American citizens really want to come, what they are afraid of

161

especially the older ones, what they are afraid of is they should get sick in the Philippines
because no adequate medical or social insurance benefits are available to them. Anyway, so I am
not If you are, I am not saying you should migrate or whatever noh, but there, but if ever you
should decide to migrate then you should take up nursing or physical therapy or be a caregiver. I
think these are the things that they need in America and in Canada now. On retirement benefits
class, the case of retirement benefits the rule enunciated in the case of Perfecto vs. Drilon and
consistently up to now was that, retirement laws shall be interpreted liberally in favor of the
retiree. Accordingly, we have a lot of retirement laws may mga special retirement laws like
Republic Act 910 for members of the Judiciary. And under the 910 amended na yung sinasabi
nating when a judge retires at age 70, he gets a lump sum equivalent of, equivalent to 5 years
salary. 5 years salary plus allowances received. So its not only computed on the basis of basic
salary but even all the allowances that a judge or a justice receives. Yun. 5 years after
retirement then he starts to receive pension benefits. And as I told you yesterday the pension
benefit is based on the actual salary received by an incumbent. So if there are increases in the
salary of the incumbent there will be automatically an increase in pension benefits. Ganun lang
ka simple yun. Of course, as we have talked about retirement Ill try to look around and see if
theres anyone that is retireable, I dont see anyone who is retireable. But you have a number of
laws, you have the GSIS charter kasama pa ba ito sa labor and social legislation? You have the
new GSIS charter you still have of course Republic Act 1616 and so yung mga yung 1616 says
that you can optionally retire after rendering 20 years of service and your retirement benefit can
be paid by your last employer and it is supposed to be paid on the basis of 1 month salary for
every year of service. If for the first 20 years and then 1 and salary happening every year of
service from the 11th , ay no from the 21st to the 30th year and if you exceed 30 years of service in
excess of the 30 years the basis of the computation will then be 2 months salary for every year of
service after the 30th year. Well, if you have already rendered the 30 years of service, I dont
know if you want to retire under Republic Act no. 1616 in any case the Supreme Court has said
that when a person, when a public officer or employee has reached that point that he may choose
to which law he wants to retire under. It is his personal choice that will prevail and not the
employer or agencys choice. So he can choose to retire under any of the retirement laws
prevailing at the time of his retirement.
Ibalik natin dun sa, because just now, Atty. Delson again talked to me about the pensions
in gratuitis. He asked if its possible for a public officer to receive both separation pay and
retirement benefits. Of course our rules speak of, if you have already retired and you have
received, you are already receiving pension benefits from your retirement and then you are
reemployed, you can continue to receive both your pension and your salary from your current
employment. But at the end of your current employment, you cannot tack, tack the many years of
service that you have rendered under which you have retired or from which you have retired and
for which you are receiving pension benefits to these number of years you have rendered under a
new agency or instrumentality. That is what would violate the constitutional prohibition against
additional, double indirect compensation. And so in a recent decision, Gamu-gamo vs. PNOC,
the Supreme Court said this fellow working with the Department of Health could not tuck his
services in the Department of Health to his service in 2 government-owned and controlled
corporations without an original charter for purposes of receiving bigger separation pay.
For those in government service, terminal leave benefits, terminal leave benefits are
benefits from accumulated leave credits. The rule is the payment of your terminal leave benefit
credits shall be based on the highest salaries you have received. In the case of De Lucena vs.
Secretary of Finance, the Supreme Court said that the retiree who at one time was acting
Secretary of Finance should be entitled of terminal leave benefits on the basis of the salary of the
Secretary of Foreign Affairs, ay Secretary of Finance rather, the salary of Secretary of Finance
because that is the highest salary received in which the highest, the highest salary that he
received in his capacity as acting secretary of finance. Incidentally class, hindi natin na i-take up
yun dun sa salaries noh. If you are designated Acting public officer, you are an undersecretary,
you are designated acting undersecretary then you are entitled to the salary of a secretary and to
the benefits, representation, and transportation etc, you are entitled to that. If you are merely OIC
(officer in charge), you are not entitled to the salary of the secretary. The designated Officer in
Charge of the Department because of the absence of the secretary, you are undersecretary you
are not entitled to receive the salary of the secretary.
Other Rights and Benefits
Alright, what are the other benefits other rights? Yung right to reimbursement for
example; incidentally class we have that case of Domingo where the Supreme Court said that
when a public officer is entitled to the use of a government vehicle, he is no longer entitled to
claim a transportation allowance. Hindi naman ito itatanong na sa bar exams para nalang ito sa
inyo na nagtatrabaho sa gobyerno. Ok.

162

Then of course, yung right longevity pay. Siguro naman di magtatanong ang ating bar
examiner. So those are among the important rights of our public officers. WE move on to the last
part of the Law of Public Officers and we talk of termination of Official relationship.
Modes of Terminating Official Relation
Early, yesterday when we talked about commencement of official relationship, we said
that official relationship is the vinculum that ties a public officer to a public office and we said that
this official relationship is commenced either by appointment or election. We have since the
spoken of appointment as the mode of commencing official relation. Now we look at the modes of
terminating official relationship. When this vinculum is severed, is cut and so what are the modes
of terminating official relationships? There are so many, class,ako ang akin lang meron akong
code dito. Expiration of term or tenure, reaching the age limit, recall and removal , acceptance of
a new compatible office, abandonment, abolition of office, and a number of authors include
accomplishment of the purpose for which the public office was created. Apat din, then
prescription. Then of course, death, impeachment, failure to assume elective office, conviction of
a crime involving moral turpitude and filing of a certificate of candidacy. Yun. Ang importante lang
kasi yung unang sampu, isa lang ano, madaling madali maaalala.
July 21, 2004
that public officer will not terminate the official relationship of everyone with the board, it
terminates only the official relationship of that individual who dies. Impeachment, for this purpose
let us look at Article 11 of the Philippine Constitution. Impeachment is defined as a national
inquest into the conduct of public men and for your purposes memorize the impeachable officers,
these are, the President, the Vice-President, members of the Supreme Court, members of the
Constitutional Commissions and the Ombudsman. Class, all Constitutional Law authorities are
unanimous in saying that the enumeration of impeachable officers is exclusive, you do not add to
any of these. Accordingly, when President Marcos then, issued his Presidential Decree creating
the Sandiganbayan, providing among others for the Sandiganbayan to be composed of a
presiding Justice and two other Justices, initially, tatlo lang yun, two Justices and providing in the
same Decree that these Justices of the Sandiganbayan may be removed only by impeachment.
There was of course, a lot of people who said that that provision in the Sandiganbayan Decree,
providing that the Justices of the Sandiganbayan can be removed only by impeachment is
unconstitutional. First, the list of impeachable officers in the Constitution does not include
Sandiganbayan members and of course, under the 1987 Constitution, there is one other
Constitutional principle that such a provision would violate and that is the Constitutional principle
that the Supreme Court shall exercise administrative disciplinary supervision, disciplinary
jurisdiction over judges and justices of lower courts and of course, the Constitution provides that
the Supreme Court may order a dismissal of any justice or judge of a lower court, alright.
Impeachment
Then, of course, class, the grounds for impeachment. Again, the enumeration in the
Constitution is deemed to be exclusive. What are the grounds? Culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes and betrayal of the public
trust. These, well, culpable violation of the Constitution perhaps, treason, bribery, graft and
corruption are, shall we say more or less defined by law. But, well, anyway, culpable violation is a
little bit ambiguous for me, we do not see, kung ano talaga ang, what areas, pero, okay, were
there is a Constitutional mandate and there is a clear violation that could come within culpable
violation of the Constitution. Now in the matter of other high crimes, the interpretation given by
Commissioners of the Constitutional Commission, has been, that this will refer to crimes as grave
as treason, bribery, graft and corruption. And betrayal of the public trust is another general
statement there. It could mean anything, and so, for example, in the abortive impeachment
proceedings against President Joseph Ejercito Estrada, one of the charges against him was
supposed to be betrayal of the public trust. In the articles of impeachment, this was number four
in the articles of impeachment against him and under this betrayal of the public trust, there were
allegations such as his pakialam in the Philippine Charity Sweepstakes, his pakialam in the
Bureau of Customs with the vehicles and mga canned goods, and whatever, etc., ganyan, and
this never came to be even talked about in the impeachment proceedings because of the aborted
proceedings with the non-opening of the second envelop, okay, alright.
Where is the power vested? The sole power of initiating impeachment is vested in the
House of Representatives.
And how is an impeachment initiated in the House of
Representatives? It is initiated by a verified complaint filed by any member of the House of
Representatives or by any citizen of the Philippines upon a resolution of endorsement by a

163

member of the House of Representatives. If the verified complaint is made at least by 1/3 of all
the members of the House of Representatives, then, the fact that 1/3 or more of the members of
the House of Representatives have signed the complaint is sufficient to initiate an impeachment
case and the complaint shall become immediately the articles of impeachment and this complaint
which is now the articles of impeachment shall forthwith be transmitted to the Senate. Where you
do not have 1/3 or more of the House of Representatives signing the complaint even in the matter
of endorsing the complaint, then, the Constitution comes in and says, the verified complaint shall
be included in the order of business of the House of Representatives within 10 session days and
referred to the appropriate committee within 3 session days thereafter. The appropriate
committee is given 60 session days within which to conduct a hearing and to arrive at a decision,
the corresponding resolution. The resolution of the Committee in this case, the Committee of
Justice, in the House of Representatives, the resolution of the Committee may either be for
impeachment or for the dismissal of the verified complaint against impeachment. Class, the
Constitution says that a vote of 1/3 of all the members of the House of Representatives shall be
sufficient to affirm a resolution recommending impeachment or to overrule, overcome a resolution
recommending dismissal of the complaint of the impeachment. So, all you really need is 1/3 vote
of all the members of the House of Representatives in order that an impeachment complaint may
prosper. The issue in the case of Francisco vs House of Representatives, which is not included
officially. Officially its not included. I dont know if you were told that cases that are of first
impression and cases that have gotten full media mileage even if the promulgation of the decision
was made beyond the cut-off period you have in your bar exams coverage may be asked. And
so, class, in the case of Francisco vs House of Representatives, the Supreme Court said, una,
the rules adopted by the House of Representatives on impeachment even as the Constitution
provides that the House shall have the power to promulgate its own rules on initiating
impeachment cases. Sabi ng Supreme Court, the rules were infirmed constitutionally. Una,
initiating impeachment, sabi ng Supreme Court dito sa Supreme Court, an impeachment case is
initiated upon the filing of the complaint. So, what did the Supreme Court actually say, it said, that
the rules adopted by the House in so far as initiating impeachment is concerned is
unconstitutional, it is invalid, because in the rules adopted by the House it is provided that
impeachment is deemed initiated only when the complaint, the verified complaint is signed by at
least 1/3 of all the members of the House, isa yun, or when the House votes on a committee
resolution and decides by a vote of 1/3 of all of the members, vote of at least 1/3 of all the
members, the resolution of the committee indorsing the complaint in impeachment is favorably
acted upon or affirmed or the committee resolution seeking the dismissal of the complaint is
overturned. Prior to the plenary decision, when the Committee submits the resolution, that is the
only time when the impeachment is deemed initiated in accordance with the rules of the House.
The Supreme Court said, mali yan, mali. It is deemed initiated upon the filing of the complaint.
Then, second, kaya sinabi ng Supreme Court na, the filing of the complaint against Chief Justice
Davide, was also already a second complaint because there was an earlier complaint filed by
Joseph Ejercito Estrada against all the members of the Supreme Court. This complaint was
actually deliberated upon by the Committee and the Committee voted to dismiss the complaint
and even as the Committee had not yet submitted the resolution of the Committee, inabutan ng
Fuentabilla vs Davide, were a member of Congress actually signed the verified complaint against
Chief Justice Davide. In light of the Constitutional provision that impeachment may be initiated
against an impeachable officer only once within a period of one year, the Supreme Court said,
since initiation refers to filing of the complaint, and since, this is the second complaint within one
year filed against Chief Justice Davide, therefore, it was error for the Committee on Justice to
even take cognizance of the case considering that the Constitution prohibits the initiation of
impeachment proceedings against an impeachable officer more than once within a period of one
year. What was declared unconstitutional was the rule that said that initiation commences only
when a filing of a complaint with the signatures of at least 1/3 of the members or upon the
submission by the appropriate committee to the House in plenary of its resolution either
recommending impeachment or recommending dismissal of the complaint.
Yun ang
unconstitutional doon, according to the Supreme Court, okay. Then, class, it is the Senate of the
Philippines, rather, on the basis of the committees resolution, if the committees resolution
recommends filing or recommends impeachment and 1/3 vote is obtained, then the House shall
prepare the articles of impeachment which is of course, the specification of the charges against
the impeachable officer. And forward the same, to the Senate which under the Constitution has
the sole power to try and decide the impeachment case. The Senators are placed under oath or
affirmation when they seat as members of the impeachment court. Here is the President of the
Philippines who is facing impeachment, then, the Chief Justice shall preside over the Senate,
although, the Chief Justice cannot vote. A decision with the concurrence of at least 2/3 of all the
members of the Senate are required for the purposes of convicting the officer in the impeachment
case. Once, a decision of guilt or of conviction is obtained, then, the impeached officer shall be
automatically removed from office and disqualified to hold any other office in the government.
Furthermore, the public officer impeached may be subjected in criminal and civil cases. Recall in
this connection, first, Harque vs Disierto, were an impeachable officer is required under the
Constitution to be a member of the Philippine Bar, no proceedings for disbarment may prosper

164

until after the public officer is impeached. In the case of members of the Supreme Court or any of
the impeachable officers, no criminal investigation shall proceed without filing the appropriate
criminal information against the impeachable officer until after the impeachable officer has been
impeached because the effect of a criminal prosecution if a judgment of conviction is obtained
would be to remove the public officer from office through criminal conviction. Conviction of an
offense involving moral turpitude, that according to the Supreme Court, in In Re Raul Gonzales,
would be unconstitutional because these people are removable only through impeachment,
alright. Of course, class, once the impeachable public officer no longer holds the public office, he
may be subjected to criminal as well as civil suits, since he will no longer enjoy the immunity
granted to impeachable officers, okay.
So, we go to Section 11 of Omnibus Election Code. The failure of a elective official to
take his oath of office within six months from proclamation shall result in the public office being
declared by law vacant. And so, this is a mode of terminating official relationship even before the
public officer takes oath precisely because he fails to take oath even if he has already been
proclaimed elected and there is as it were by election the commencement of official relationship.
Conviction of an offense involving moral turpitude, recall in this connection Monsante vs
Factoran, were the Supreme Court said, that even a plenary and an absolute pardon cannot
restore public offices already forfeited by the conviction and so, when a person is convicted of an
offense involving moral turpitude, necessarily, there accompanies the penalty, the principal
penalty, the accessory penalties of disqualification. Because of the accessory penalty of
disqualification upon conviction by final judgment, the disqualification immediately sets in and if
he is incumbent in a public office then, his right to the pubic office terminates automatically by
virtue of the conviction which carries with it the penalty, the accessory penalty of disqualification.
So, even if he is given granted plenary or absolute pardon, the public office had already been
forfeited by the conviction and can no longer be restored. Accordingly, conviction is a mode of
terminating official relationship. Filing of the certificate of candidacy, the Omnibus Election Code
provides that appointive public officers including those in the Armed Forces of the Philippines and
the government owned or controlled corporations shall be deemed ipso facto resigned from public
office upon the filing of certificate of candidacy, Deemed ipso facto resigned, it does not matter
apparently, class, if later he withdraws his certificate of candidacy because it is supposed to be
the filing of the certificate of candidacy that will toll the termination of the official relationship,
alright.
So, we go to the top ten. Expiration of the term or tenure. Earlier we mentioned the
distinction between term and tenure. Term referring to the period of time during which the public
officer has a right to hold the public office and tenure referring to the period of time during which
the public officer actually holds office, alright. In, when you speak of the mode, we speak not only
of the expiration of term but even of the expiration of tenure which is a little bit difficult to
understand. Expiration of term walang ka proble-problema yan dahil, were the law or Constitution
fixes the term of office, upon the expiration of a term of office fixed in the law or Constitution then,
there is termination of official relationship. In the case of cabinet members, public officers who
hold office at the pleasure of the appointing authority or those who enjoy confidential positions in
government. Note, as we already mentioned yesterday, that when they are replaced, there is no
removal, when they are replaced that does not mean removal within the legal sense, what
happens is, that there respective terms of office expire. When does expiration of tenure takes
place? Medyo, immediately after the EDSA Revolution, the first EDSA Revolution, President
Aquino sought the courtesy resignation of Presidential Appointees in all of the government
agencies, departments and agencies. And almost all of them actually handed in courtesy
resignations. Since, class, courtesy resignation is not a valid resignation at all because of the lack
of voluntariness. The Supreme Court in a number of cases, in Ortiz vs Commission on Elections,
in the matter In Re Justice Britannico, declared that the mode of terminating official relationship in
those cases was not resignation but expiration of tenure. In a parliamentary government were
members of parliament are elected for a term of say, five years, but say on the third year,
parliament is dissolved, there is a call for general elections. The termination of official relationship
would not be expiration of term because the term of office provided in the Constitution would be
say five years, what then would be the mode? Neither is it removal, neither is it abolition of office
because the office remains. What would happen would be expiration of tenure. But the important
thing to remember in connection with expiration of term or tenure is not those but the principle of
hold over. The hold over principle states that a public officer may continue to hold office even
after the expiration of a term of office until his successor shall had been duly elected or appointed
and shall have qualified. If there is no express or implied Constitutional or Statutory prohibition
against his continuing in office. So, what is the reason for the doctrine? The Supreme Court said,
the doctrine is to be adopted because we should prevent a hiatus in public service. If the public
officers term of office expires and he immediately has to step down without his successor having
yet been elected or appointed and having qualified for office, there would be a lapse of time
during which there would be no public officer. And thus, public service will suffer. Accordingly, he
is allowed to continue holding the office, and during the period of hold over, even as the term of

165

office may have already officially expired, the public officer remains a de jure public officer not just
a de facto public officer, okay. Class, the problem is finding out whether there is, wla problema
kung may express, if there is an express prohibition, then, wla tayong problema but finding out if
there is an implied Constitutional or statutory prohibition against hold over, ang sinasabi lang,
going by general principles in the Law of Public Officers taken from Anglo-American
jurisprudence, when the Constitution or the law, specifies the date when the term of office
commences and when it expires, that provision of the law or Constitution is implied prohibition
against hold over. Accordingly, there can be no hold over in the office of the President. The
Constitution provides that a term of office shall commence at noon on the 30th day of June next
following the election and shall end 6 yrs thereafter. There is also no hold over allowed for
members of Congress, as again, there is a specific date mentioned in the Constitution on when
the term of office commences and ends. It would seem then, that as a rule, your elective officials
may not hold over. We have the case of Licaros vs Sandiganbayan, however, were the Supreme
Court justified the hold over of a Sangguniang Kabataan Chairman because of the failure on the
part of the successor to take his oath and to qualify for the position, justifying the hold over.
Because according to the Supreme Court, there was no express or implied prohibition against
hold over, okay.
We move to the Rs, reaching the age limit, thats retirement and we just talked about the
right to retirement pay a little while ago. Ang akin lang, maximum or the ceiling date, the
compulsory retirement age for judges, 70. Compulsory retirement age for others in government,
65 years old. Now, class, because we have many retirement laws, for one, under the charter of
GSIS, a public officer or employee may already retire at age 60. What are we saying first? Dito
ang R na una, is reaching the age limit, because even under RA 1616 for example, if you joined
government service at age 21, by the time you reached age 41, you may already retire, under
RA1616, after having rendered 20 years of government service. So, if you do retire at the age of
41, therefore, there is termination of official relationship kasi wala ka na, you are no longer a
public officer, okay. What with be the mode of terminating official relationship? Officially reaching
the age limit. But its not the age limit 70 or 75? No. That would still be reaching the age limit
because the mode was retirement. Kaya dapat siguro palitan na natin yung isang R na yan, hindi
na reaching the age limit kundi Retirement para maliwanag. We have two cases involving the old
GSIS charter. Under the law, in order to be entitled to retirement benefits, upon reaching the
compulsory retirement age of 65, a public officer or employee must have rendered at least fifteen
years of government service to be entitled to the benefits provided in the law, okay. And so, it
happens in a number of instances that a public officer reaches 65 but has only rendered 13 years
of government service. That denies him the benefits for retirement granted under the GSIS law,
what happens here is return of retirement premiums lang with interest on his premiums and the
corresponding government counter part without interest, yun lang ang kanyang matatanggap,
hindi na nya matatanggap ang iba pang binipisyo, katulad ng entitlement to pension later, etc.,
hindi na nya matatanggap yun. So, under the GSIS law, there is a provision to the effect that
when a person has not yet rendered a minimum of 15 years even if he has reached the
compulsory retirement age of 65, he may then be allowed to continue working so that he can fulfill
the minimum 15 years of government service which is only fair lang naman lalo na kung 14 years
and 11 months na sya, isang buwan na lang, hindi ka pa makakatanggap ng ano. So, the law
allows for an extension in the government service beyond the compulsory retirement age of 65.
But now comes the Civil Service Commission with a memorandum circular to the effect that any
extension in government service of a public officer or employee who has reached 65 shall not
exceed one year. Kaya kung 13 years ka lang, one year, plus one, 14 lang, wala pa rin silbi ang
iyong extension. In the case of Cena, the Supreme Court said, the Civil Service Commission
memorandum circular should yield to the provisions of the law, the GSIS law, which allows for an
extension in order to enable the public officer or employee to complete 15 years of government
service. But then, less than a year after Cena vs Civil Service Commission, the Supreme Court
decided Rabor vs Civil Service Commission, when the Supreme Court turned around and said,
hindi, the GSIS law should be read together with the Civil Service Memorandum Circular and both
should be given effect. And so, if we are to give effect to the Civil Service Memorandum Circular
we must therefore limit any extension in the government service of one who was already reached
compulsory retirement age of 65 to only one year. And thus, deny the spirit behind the GSIS law
in allowing continued extension until the 15 year period, the 15 year service shall had been
attained. But that is Supreme Court, so, wala tayong magagawa. The other principle we spoke
up kanina on retirement apply equally to this reaching the age limit, alright.
The next R is resignation. Resignation in Ortiz vs Commission on Elections, according to
the Supreme Court, is the expression by the public officer in whatever form whether express or
implied of his intention to surrender, renounce or relinquish the public office that he holds.
Compare resignation and abandonment because both modes of terminating official relationship
partake of the voluntary surrender or relinquishment by the public officer of the public office. It is
a statement that he is no interested in holding the public office anymore. Ayoko na. Natatandaan
ko dun sa, kasi noon, even now, the normal mode of resigning here in the Philippines, recognized

166

mode is in writing. There is used to be a requirement na the resignation, the tender should be in
writing. Of course, in light of Joseph Ejercito Estrada vs Gloria Macapagal Arroyo, we have
implied resignation. Kasi yung in writing, inis na inis ka na sa opisina na walang kakwentakwenta, ayoko na nito, ayoko na. When I was teaching the undergraduate years, I asked the
question, So, is it necessary that it be in writing, your resignation? Yes. Apparently the formal
requisite is that it should be in writing and transmitted to the officer who has the power to accept
the same. Inis na inis ka na sa opisina kaya kalat mo papel dyan, pagkatapos eh, wala ka ng,
tinapon mo na mga lapis, so wala ka ng pansulat, inihian mo lang, I resign! (laughs). Is that a
valid tender of resignation? Yan ang mga tanong ko sa undergraduate classes ko noon, pero
hindi naman itatanong sa bar exams, okay. So, two basic requisites for a valid resignation.
Number one, voluntariness. Second, acceptance by competent authority, okay. So, even as
before, we were told that there is some kind of a formal requisite for resignation and that is should
be in writing obviously in light of the decision of the Supreme Court in Joseph Ejercito Estrada,
even earlier of course, this was intimated already were the expression of the intention may be
expressed or implied. We have implied resignation, as long as the element of voluntariness is not
vitiated. So, ano ang sabi ng Supreme Court? There was a clear intention on the part of Joseph
Estrada when he left Malacanang, a clear intent to resign. Ano yung mga sinabi ng Supreme
Court dyan? Si Joseph Estrada recognized the oath taking of Gloria Macapal Arroyo. He said
that he was leaving the palace to hasten the healing of process. Third, he thanked his supporters
and the Filipino people for the opportunity of having served them. Fourth, he said that he will not
shirt from any future responsibility that the people would call him to undertake. And five, he called
upon everyone to join him and support the building of national spirit of reconciliation, etc., etc.
Congressman Delangaleng, hindi naniniwala dyan.
Ang sinasabi lagi ni Congressman
Delangaleng, one Justice of the Supreme Court at 3:30 in the morning, open the bible and so,
there a phrase about restoring Zeon, and so he rushed to the Chief Justice, yun ang sinasabi
nya. Anyway, that is what jurisprudence tells us, wala tayong magagawa dyan, yan na yan.
Accordingly, class, ang importante lang for our purposes, yung voluntariness and then
acceptance. So, a courtesy resignation does not carry with it the voluntariness required for a
valid resignation, does, it may be repudiated. It is not a valid resignation. Resignation obtained
through fraud, duress, force, can be repudiated, therefore, because of the lack of voluntariness.
Second element is acceptance by competent authority. So, ano, acceptance, ang akin lang, is
the acceptance to be expressed or implied also? Because in the case, for example, of elective
local public officials, the Local Government Code, expressly provide for the public officer to whom
a resignation must be tendered and who is deemed the authority to accept the resignation. And
so, Governors, Vice-Governors, City Mayors, City Vice-Mayors in highly urbanized cities and
independent component cities must tender their resignation, and the resignation must be
accepted by the President of the Philippines. City Mayors, City Vice-Mayors in component cities;
and Mayors and Vice-Mayors in municipalities tender their resignation to the Governor who must
accept the same in order that the resignation be valid. Baranggay officials tender their
resignation with the Mayor who is vested with authority to accept the same. Sangguniang Bayan
members, Sangguniang Panglungsod members, Sangguniang Panlalawigan members tender
their resignation to the Sanggunian itself. And it is the Sanggunian itself that is supposed to
accept, although, of course, there is a provision in the Local Government Code that 15 days
thereafter, if there is no indication then it is deemed accepted, okay. In the case of the President,
who is competent authority to accept? The general rule in the Law of Public Officer states that in
the case of elective public officials were there is no law that provides for the competent authority
to accept resignation, then, it is the officer or the agency that has the power to call an election for
the election of the successor to the public officer who resigned. And so, the President of the
Philippines, and the Vice-President, who can call for the election to fill up the vacancy?
Congress. Apparently, in the case of the resignation of Joseph Ejercito Estrada, there was no
prior indication man lang, nor was there any actual acceptance by Congress of this implied
resignation of Joseph Estrada. Apparently, this was also implied. If there is an implied tender,
there can also be an implied acceptance, puro na lang implied ang mga ito (laughs), yun. You
see, class, the need for acceptance has also another function. The other function is to determine
when resignation takes effect because were the resignation specifies a date in the tender of
resignation, were the tender specifies a date, and that tender is accepted, and of course, the date
mentioned in the tender is the date of effectivity of resignation. But were there is no date, the
resignation is deemed effective upon notice on the part of the public officer that his tender has
been accepted. This notice may be constructive or actual. And thus, in that old case, yung sinabi
natin kahapon, Lao vs Tochief, yung mga Justices ng Court of Appeals, na accepted na by Cory
Aquino yung kanilang resignation. Implied acceptance by virtue of the appointment of
successors. The notice was given to the security guard of the Court of Appeals, and the
Supreme Court said, there was constructive notice already to the Justices concerned because
the security guard is an employee of the ano, ganyan. A case in point on the need for acceptance
is, magandang istorya sa Nueva Ejica, Juson vs Nario. Para lang mabuo ang conflicting groups
nila Governor Juson, the old man, Governor Juson and then Nario, Vice-Governor, who became
Justice, he retired as Justice of the Sandiganbayan, just retired last year, okay. Ito ang ginawa
nila, the old man who was Governor, undefeated Governor of Nueva Ejica for many, many years,

167

matanda na, medyo mahina na, pero wala par in katalo-talo. So, ran for Governor, in the ticket,
kinuha nila si Nario to be Vice-Governor, tapos one of the sons of Governor Juson would run for
the provincial board, siguradong mag to-top yun. Kaya si Governor Juson will slowly fade away
kasi matanda na nga, Nario will then succeed to Governor. But the arrangement was, when
Nario succeeds, as Governor, Nario would tender his resignation then kasi Nario goes up as
Governor, then, the younger Juson na sigurado namang number one na board member will then
become Vice-Governor, then Nario will resign as Governor, so that the younger Juson will
eventually become Governor, yun ang usapan. Maliwanag na usapan yun, okay. So, nangyari
na, as anticipated, panalo silang lahat. The old man Juson then stepped down, Nario became
Governor. Nario consistent with the arrangement, with the agreement, tendered his resignation
with Malacanang through the Secretary of Local Government. At that time, the Secretary of Local
Government was Luis Santos, Cory Aquinos time ito, okay. Di si Luis Santos, e-fo-forward lang
kay Presidente yun, sasabihin na, Madam President, let us accept this, ito nag re-resign naman
itong si Governor Nario. Pero hindi, tinawag si Governor Nario ni Secretary Santos, sinabi, ano
ba ito, matagal mo ng ambisyon the maging governor ka ng Nueva Ejica, ngayon hawak mo na,
bibitiwan mo pa, huwag ka ng mag-resign, ito isasauli ko sayo tong resignation. Hindi
inaksyonan, nakumbinse itong si Governor Nario na, abay oo nga pala, mahaba-haba pa ito,
Gobernador ako, etc., etc. Binawi na lang nya. And so, hindi na sya nag-resign, hindi na naaccept ang resignation. The younger Juson went to Court, because he had a copy of the
resignation which was filed with Malacanang through the DILG. The Supreme Court said, the
resignation tendered by Governor Nario never took effect because it was not accepted, so yun,
okay.
The next R, is recall. Recall is the termination of official relationship of a local elective
official before the expiration of his term for loss of confidence by the will of the electorate. And so,
first, class, what we are talking about is local elective officials. Only local elective officials. You
cannot recall the President of the Philippines. You cannot recall other national officials, you can
recall only local elective officials. The modes of initiating the recall process. First, through the
PRA. There are two modes, ito baka hindi na magtagal ito dahil masyadong maraming umaangal
even in Congress, marami na ang may gustong palitan na itong, preparatory recall assembly,
PRA. Of course, the other mode is through a direct petition signed by at least 25% of the
registered voters in the constituency. Preparatory Recall Assembly, kung sakali, class,
magtanong dito at nahihirapan kayong mag-memoria ng preparatory recall assembly na yan,
madaling-madali, kasi, you just go down one step. Governor, sino ang members ng preparatory
recall assembly to recall a Governor or Vice-Governor? All the municipal mayors, the municipal
vice-mayors, the Sangguniang members, Sangguniang Bayan members of the component
municipalities, and if there is a component city, mayor, vice-mayor, Sanggunian, yun. Sino PRA
ng mayor or vice-mayor? Lahat ng Baranggay chairmen, and members of the baranggay
assembly, sangguniang baranggay, yun, ganun lang yun, you just go down one step, yan lahat ng
yan ang members ng PRA. In the case of Sangguniang Panlalalwigan members, elected by
district, e di yun ding mga mayors, vice-mayors, and sangguniang bayan members in the district,
yun lang, you just go down one step, that is your preparatory recall assembly. And what is
required for the preparatory recall assembly to meet? A meeting must be held. And in the case
of Garcia vs Commission on Elections, the Supreme Court said, notices must be sent to each and
every member of the preparatory recall assembly. Failure to send notices to some is fatal and the
meeting must be attended by a majority, at least. And a resolution adopted by the majority of the
members of the PRA. After which, a copy of resolution adopted by the majority of the members
of the PRA shall be served on the Commission on Elections. On the other hand, pwede rin
direkta, at least 25% of the voters in a public place in the constituency, announced ito, in the
presence of the COMELEC official, in the presence of the person to be recalled, or his
representative, signing of the petition for recall. After which, publication for at least 10 days para
ma-verify, those whose names are there na may signature na hindi naman pala sila ang pumirma,
sabihin nila sa COMELEC na hindi amin yan. And then, the COMELEC once satisfied of this, or,
of the resolution adopted by the PRA will now announced, we are accepting certificates of
candidacy for an election that will be held not later than 30 days in the case of city, municipality or
baranggay, and not to exceed 45 days in case of provinces. The public officer sought to be
recalled will be automatically a candidate without having to file a certificate of candidacy. And
there is deemed to be a recall, only upon the election and proclamation of the winning candidate
of a successor in the event that the candidate other than the public officer to be recalled won the
elections. That is when recall is deemed complete. If the public officer sought to be recalled
obtains the highest number of votes, then, recall fails because confidence in the public officer is
restored by the virtue of his having obtained the highest number of votes, okay. Ano na lang ang
kelangang malaman dyan, the limitations. Only once, during the term, recall may be taken
against a public officer only once during the term, and second, can be commenced only after the
expiration of one year from assumption and not within one year from a regular election. And so,
in as much as we have a three year term for local elective officials, you really have only a window
of one year after assumption, one year before the election, you have only that window which is to
effect your recall. However, class, there is already a Supreme Court decision to the effect that

168

you can commence the recall proceedings even before the one year period expires, the one year
from assumption. In other words, you can call the PRA to a meeting, as long as, the recall
election is held not within the prohibited period. You can start designing, for example, even
before the one year period from assumption expires. Now, then of course, not within one year
before a regular election, the regular election is the election at which
July 21, 2004
Regular election, so kung may Sangguniang Kabataan election that does not matter. If
the recall is for the mayor, Sangguniang Bayan elections, Baranggay elections, in between will
not prevent the recall election, alright. Notice, class, that the matter of recall is provided in the
Constitution. In Article 10 of the Constitution, there is a mandate for Congress to pass a Local
Government Code which among others should contain an effective method of recall for local
government officials, elective local government officials. And so, the recall process is really a
process already mandated by the Constitution given flesh by the Local Government Code, alright.
Removal, as a mode of terminating official relationship, perhaps, we look at the Civil Law for this.
Yesterday we spoke of the security of tenure enjoyed by those who belonged to the career
service of the Civil Service, security of tenure. And under the Constitution it is provided that no
Civil Service officer or employee shall be suspended or dismissed except in accordance with the
law. What are we saying again? The grounds for disciplinary action against public officer and
employees are found in the Civil Service Law and in other laws such as the Code of Ethics, the
Code of Conduct and Ethical Conducts for Public Officers and of course, your Criminal Laws. But
you see, class, we are looking at an administrative manner of removing the public officer,
administrative mode. This means then, that there is a procedure prescribed under the Civil
Service Law for the manner in which to remove the public officer or employee. The causes, the
grounds for disciplinary action against public officers and employees in the Civil Service are
enumerated in the Civil Service Law. There are 35 or 36 causes, just causes for disciplinary
action. I have never been able to memorize them, but I know one. I have at least retained in my
memory one of this causes, that is habitual drunkenness (laughs), so, habitual drunkenness is a
ground for disciplinary action, in case you do not know gentlemen, I am telling you now that is a
ground for disciplinary action, alright. Procedure, the procedure is outlined precisely in the law
and this goes into the matter of administrative due process. Denial of the procedure will result to
a denial of due process of law. Who has jurisdiction over these cases of administrative
discipline? It is of course, the agency. The head of the agency, bureau or agency, or department
is vested with quasi-judicial authority relative to administrative discipline. And so, the
Administrative Code and the Civil Service Law say that an administrative disciplinary case if
decided and resulting in the imposition of a fine equivalent to 30 days salary or a suspension of
30 days from office shall be immediately executory, final and executory. In all other cases, appeal
may be made to the Civil Service Commission or to the higher administrative agency if this is on
the level of a bureau then one can appeal to the office of the secretary. Provided, however, that
any and all decisions while the case is on appeal shall be executory except were the decision
imposes a penalty of dismissal from the service which will become executory only when affirmed
by the secretary of the department, the department head himself. As we said yesterday, the Civil
Service Commission, may take cognizance of a complaint against a public officer or employee
directly filed with it. Even as the Civil Service Commission also has an appellate jurisdiction over
personnel actions decided by the various agencies and departments of government.
Preventive Suspension
The matter of preventive suspension, I think we already more or less took this up. The
law provides that the disciplining authority may place the public officer or employee under
preventive suspension during the investigation. If the public officer is charged with dishonesty,
oppression, grave misconduct, neglect of duty or any other offense where there is a probability
that a penalty of dismissal from the service will be imposed on the public officer concerned. And
so, we said, the period of preventive suspension shall not exceed 90 days. At the end of which it
is assumed that administrative investigation has been terminated because if the administrative
investigation has not yet terminated, then, the public officer or employee is entitled to automatic
reinstatement even while the case has not yet been finished provided only that the public officer
or employee himself was not the cause of the delay in the investigation. Incidentally, class, para
na lang sa ano, a complaint is filed against, a complaint, it may come from outside the agency, it
may come from inside the agency, it may come from the head of the agency itself. Ordinarily, if it
comes from outside, may parang preliminary na titignan muna ng ano, kung talagang may basis
ito. Then, when the agency finds that there is a basis, then the agency prepares a formal charge
against the public officer or employee. The formal charge contains the nature and the cause of
the accusation against the public officer or employee. This is accompanied by a directive for the
public officer or employee to answer the formal charge, answer in writing. Normally, in a period
not less than 3 days, not to exceed 5 days. And in his answer to indicate if he is willing to submit
the case for decision on the basis of his answer or if he elects a formal investigation for the

169

purpose. If he elects a formal investigation, then, a formal investigation has to be held. This is
the part of the right of the public officer or employee. Now, habang nariyan lang tayo, because
the investigating officer may be an officer, maybe a committee, a panel, not necessarily the head
of the bureau, or the agency, or the head of the department, even if it is the head who has the
quasi-judicial power, the disciplining authority, okay. I just would like to call your attention to
Fabella, Secretary Fabella vs Court of Appeals, were the Supreme Court said, that an
administrative disciplinary investigation of teachers by virtue of the provision of Magna Carta for
public school teachers, the committee conducting the investigation must have among its
members a representative of the teachers organization. And in Fabella, the Supreme Court said,
the representative of the teachers organization should not be the one designated by the
Secretary of Education. That representative has to be chosen by the teachers' organization itself,
not by the Secretary of Education, not by Secretary Fabella, so yun, alright. So, if the public
officer elects a formal investigation, then, you have the 7 cardinal rights of an individual in
administrative proceedings, okay. Ang Tibay vs CIR. Then, magde-decide, its the decision will
have to be made, of course, by the agency, or the bureau head, yun. Ang ating inilustrate noon,
decision, removal, found guilty, he is dismissed from the service with forfeiture of all benefits.
Incidentally, Class, we have jurisprudence to the effect that were the public officer, rather, were
the decision in the administrative case is for the public officer to forcibly resign, that has the effect
of removal. And, consider, class, that while transfer as a rule, transfer of a public officer or
employee constitutes a violation of security of tenure, nonetheless, transfer may also be a penalty
imposed on the erring public officer or employee, alright. So, removal, in order that finding of
removal may become immediately executory, it has to be affirmed by the Secretary of the
Department, the Department Head himself. And so, appeal, appeal to the Civil Service
Commission. The Civil Service Commission says, removal. Appeal to the Court of Appeals, the
Court of Appeals says, removal. Appeal, well, by way of petition for review or certoarari to the
Supreme Court. The Supreme Court finally says, exonerated. Recall what we already said, in
the case of Gloria vs Court of Appeals, the Supreme Court distinguished between preventive
suspension during investigation and preventive suspension on appeal. The Supreme Court said,
on appeal, if the penalty imposed is suspension, or removal from the service, then, the period of
appeal, since a penalty of suspension is immediately executory, immediately executory din
naman ang penalty of suspension. During the entire period of appeal, considered preventive
suspension pa rin yan, if it ends in exoneration. Dahil if it ends in affirmation of the decision of
removal, from here, removal na yun, wla ng preventive suspension, dahil wala na eh, hindi na
makakabalik itong ating bida, alright. But if it ends in a decision exonerating the public officer or
employee, then, this is preventive suspension during appeal, while this is preventive suspension
during investigation. And as we said, the Supreme Court has declared that a decision of
exoneration entitles the public officer to payment of back salaries during the period of preventive
suspension on appeal, not the period of preventive suspension during investigation because
according to the Supreme Court, in the case of preventive suspension during the appeal there
would be no legal basis, valid legal basis for the preventive suspension once the case ends with
exoneration. Here, however, we have the law that says, that when a public officer or employee is
charged with dishonesty, oppression, grave misconduct, neglect of duty or any other offense that
will merit a decision of dismissal from the service, then, he may be preventively suspended.
Since there is a valid basis for a preventive suspension, well, according to the Supreme Court,
then, the public officer is not entitled to payment of back salaries, alright. Meron pang isang
punto, in a number of cases, class, the Supreme Court said, dito, decision of the government
agency removal affirmed by the department head, appeal made by the public officer to the Civil
Service Commission. The Civil Service Commission exonerates the public officer. Palagay mo
DPWH ito, can DPWH appeal to the Court of Appeals the decision of the Civil Service
Commission on exoneration? The Supreme Court in a series of decision said, no! Because
under the law only a party adversely affected by the decision may appeal, and the Supreme Court
said in a series of decisions that the government agency is not adversely affected by a decision of
exoneration. Of course, class, if the Civil Service Commission affirms and says removal the
public officer X may continue to appeal because he is adversely affected by the decision. Now,
ito naman, dumating dito, appeal na sa Court of Appeals, the Court of Appeals says, exonerated.
Can the Civil Service Commission and the DPWH appeal this to the Supreme Court the Court of
Appeals ruling exonerating X? Yes, yes. That old series of decisions saying that the agency is
not adversely affected by a ruling exonerating the public officer is now changed. In the case of
Civil Service Commission vs Dacuycuy, the Supreme Court said, the Civil Service
Commission and the agency for that matter certainly would be adversely affected by a decision
reversing the findings of the department or of the Civil Service Commission itself, so, therefore, it
is a party adversely affected by the ruling, and therefore, it may then appeal. Of course, class,
dito pa lang pwede ng motion for reconsideration, etc. Of course, again, the Civil Service Law
comes in and says, yung motion for reconsideration shall be made only if anyone of the following
is present;
One, newly discovered evidence; Two, the decision is not supported by existing evidence
on record or there are grave or serious errors of law in the decision itself, so, you asked for

170

reconsideration. We are looking at administrative appeal, class, of course, pagdating mo dito,

tuloy ka na sa Court of Appelas and so, if your books still speak of what the Constitution says
from a decision of the Civil Service Commission, one goes to the Supreme Court through a
petition for certiorari under the rule 65 of the Rules of Court. That is no longer correct because
your reviewing Court now is not the Supreme Court, it is the Court of Appeals in cases of
decisions of the Civil Service Commission, okay.
On the 4 As. Accomplishment of the purpose for which the public office created. The
best example of that would be the Board of Canvassers, the office of the Board of Canvassers
after the Board of Canvassers shall have canvassed the election returns and shall have
proclaimed the winning candidate, then, the Board of Canvassers ceases to exist because it has
accomplished its purpose. It has accomplished the objective for which it was created. This is not
abolition of office because the office itself is not abolished, it just ceases to exist having
accomplished the purpose for which it was constituted, okay. The next A is abandonment, the
Supreme Court has said, that abandonment is a species of resignation. Indeed, as we earlier
mentioned, abandonment and resignation actually refer to voluntary relinquishment of ones right
to the public office, surrender of the public office. The Supreme Court said, but while resignation
partakes of a formal character, abandonment is simply non-user. Kamukha ng nasa opisina ka
na, pikon na pikon ka na, aalis na nga ako, umalis hindi na bumalik, thats abandonment, alright.
Related to this, class, of course, are existing Civil Service Rules on the matter, for example, when
a public officer or employee decides to go on leave, he is supposed to file an application for leave
of absence. Because if he does not, and he is absent, then, he is deemed to be considered
AWOL, absent without leave. And if one is absent without leave for a period of 30 days under the
Civil Service rules his name may be stricken off the roll of employees or public officers, okay.
When a public officer has earned a lot of credits, vacation leave credits, for example, he may go
on leave and exhaust all of his leave credits. Even when all his leave credits have been
exhausted he may still go on leave for a period of 1 year without pay. Of course, he has to file an
application and his application has to be approved because his services may be needed but that
is what a lot of people do. Mag-aapply ng leave para e-exhaust ang lahat ng kanilang leave
credits, pupunta ng Amerika, maghu-hunting sa Amerika ng magandang trabaho, nakakita ng
medyo okay na trabaho, balik dito, ubos na yung leave credits nya. He files another leave of
absence, application for leave of absence for one year without pay, tutal pag balik nya sa Amerika
meron na syang trabaho, pero titignan-tignan muna nya dahil kung medyo mahirap talaga yung
trabaho na yun, babalik na lang sya dito within one year and go back to his position, so ganun.
After the one year leave of absence without pay expires, then, there is need for the public officer
or employee to go back, failure to go back will, of course, constitute abandonment and his name
may be stricken off the roll of public officers and employees. Although, under Civil Service rules it
is also incumbent upon the public office or agency to give final notice to the public officer or
employee at his last know address, or if there is a known address where he is at the time of the
expiration of one year period without pay, so yun. In the old case of Quezon vs Borromeo, the
Supreme Court said, this is necessary because nobody can compel a person to continue working
for government if he no longer wants to. In the old, old case of Floresca vs Catullo, Justice of the
Peace before the war, ng matapos ang gyera, hindi na sya bumalik na maging Justice of the
Peace dahil murang-mura naman ang sweldo ng Justice of the Peace noon, and so he was
deemed to have abandoned. Ito lang, a 2001 or 2002 decision, hindi ko na matandaan, the case
of Philippine Coconut Authority vs Garido, nag file ng application for leave of absence, hindi
inaksyonan ng agency for more than 60 days, hindi inaksyonan, so he assumed of course, that
his application was approved. And then, after the lapse of two months, here comes notice that
his application was not approved and that since he has been absent for 60 days, his name is
therefore, to be stricken off the roll of employees. Sabi ng Supreme Court, mali naman yun,
because the lack of action for more than 60 days on his application of leave of absence raised the
impression that the leave of absence application was approved. He cannot be considered as
having been on AWOL for more than 30 days if he was given notice only after 60 days, na disapprove ang kanyang application for a leave of absence. Still, in a recent decision, in the case of
Adiong vs Court of Appeals, this has to do with a municipal employee, who, medyo pinaginitan ng
bagong mayor, pag-assume ng mayor, the mayor expected that all municipal employees
especially heads of various offices dun sa munisipyo mag co-courtesy call sa kanya, okay. Ito
hindi nag courtesy call, e di pinaginitan ito, sinabing, uy, hindi ka nag-courtesy call huwag ka ng
pumasok, okay, sinabi ng empleyado, a lady employee said, aba its a violation of my
constitutional right to security of tenure, I am a permanent employee, I am covered by the Civil
Service and so, I cannot be terminated without cause. Nonetheless, the mayor said, hindi ka
makakapasok, wala ka ng papasukan, etc. Imagine, the case dragged on for several years and
when the issue of abandonment was raised because the lady employee did not go to the office
anymore, the Supreme Court said, that was because she was being prevented from going back
to office. Ang importante lang dito siguro is her absence from office was not considered of
course, absence without leave, it took several years before the case was eventually decided.
And so, under our doctrine, it is as if, she never left public office, as it is as if, she was never
absent at all and therefore, entitled to payment of back salaries. The Supreme Court said,

171

however, the amount of back salaries to which she is entitled should not exceed back salaries for
5 yrs, so yun. Municipal employee ito sa Mindanao, alright. In the case of elective public official,
class, constitutional officials, members of Congress, may be suspended or expelled by a vote of
2/3 of all members of the House of Representatives on a finding that he has committed, well, any
of the acts which under the rules of the House will merit that but there has to be a vote of at least
2/3 of all members of the House, that the same is true with Senate. The term used for the
misconduct is disorderly behavior. And in the case of Osmena vs Pendatun, the Supreme Court
said, that each House has full discretionary authority to determine what act or acts constitute
disorderly behavior. The President, and Vice-President, the administrative mode of dismissing
them is of course, impeachment. What about local government officials? Alright, we will talk
about the grounds for elective local government officials for the removal or the discipline of the
elective local officials. The Local Government Code enumerates a number of causes for
administrative disciplinary action against local elective government officials. We will take them up
before, by Monday, Im sure, we will have finished by then, okay.
Tapos na tayo ng abandonment, then, accomplishment, then acceptance of an
incompatible office. Our best example, of course, is in the case of members of Congress, who
upon acceptance of any other office in government, including government owned or controlled
corporations will automatically forfeit their seat in the House of Representatives or in the Senate.
Note, the definition or what makes an incompatible offices. What makes for incompatible offices
were the relationship between two offices is such that it would not be proper for a person to hold
both offices because of the contrariety and antagonism that will result by one person to discharge
impartially the duties of the office towards the incumbent of the other. The contrariety and
antagonism that would result. Of course, class, other than the Constitutional provisions
prohibiting Constitutional offices from holding other offices in government, in the case of
appointive public officers, we already spoke of that yesterday, in the case of Section 7, elective
officers also, Section 7 paragraph 1 on elective officials and paragraph 2 on appointive officials,
Section 7 of Article 9-B of the Constitution. And so, we do not include as incompatible offices,
offices that are held by a public officer or employee in an ex officio capacity. Since these other
officer held in ex officio capacity are precisely held by reason of the public officers occupancy of
that first public office. And so, there is normally no need for any proceedings in order to forfeit
one public office were a public officer accepts another incompatible office, another office
incompatible to the first. Wala na tayong problema dyan.
Next, abolition of office. Who has the power to abolish government offices? Congress;
provided that they are statutorily created public offices. In the case of constitutionally created
public offices, congress does not have the power to abolish them. We also have jurisprudence,
the case of Mama vs Court of Appeals, were the Supreme Court said, that a local government
unit has a power to abolish offices which are fully supported by municipal funds. The Supreme
Court has been consistent in saying that when there is a law abolishing a public office, the
abolition must be attended by good faith. In one case, the Supreme Court said, attended by good
faith with a clear intent to do away with public office to be abolished, not for personal or political
reasons. And of course, class, were as in a number of cases, matagal-tagal na, kahapon meron
tayong na mention dyan. In the case of Rama vs Court of Appeals, were the Supreme Court
even ordered the members of the provincial board of the province of Cebu to personally respond
in the damages to the employees of thr Cebu Provincial Engineering District whose items were
abolished in bad faith, obviously, by the provincial board, so, yan. And then, in relation to the
organization of government offices. Primarily, the reorganization of government offices effected
after the EDSA revolution and then later which continued only later, even until the, even after the
adoption, the ratification of the 1987 Constitution. The recognition of the authority of government
to reorganize government offices, in fact, this was supposed to be continuing reorganization
under Section 16 of Article 18 of the 1987 Constitution. The Supreme Court recognized that there
was a valid delegation by President Cory Aquino of the power to reorganize government offices,
were Cory Aquino delegated the authority to department heads and bureau or office heads, but,
the Supreme Court said, the authority granted could not be exercised in excess of and even over
that power of the President herself because even that power of the President was circumscribed
by certain standards. The common standards of simplicity, economy, and efficiency in
government service to justify the abolition of a number of offices or positions in certain
government offices. Reorganization which then had the effect of abolishing certain items, valid,
except that the Supreme Court in the case of Mendoza vs Quisumbing said, talagang, were the
heads of the departments thought that with one stroke of the pen, they could dismiss government
employees who were covered by the Civil Service, then, certainly the reorganization was contrary
to law. Again, even in government corporations, the Supreme Court has declared that the
abolition or reorganization of government corporations, government controlled or owned
corporations must be attended by good faith. Good faith is of course, the first and basic criterion
in abolition of offices.

172

Finally, class, prescription, the last mode of terminating official relationship. Under the
rules of court, a public officer who is ousted unlawfully from the public office to which he was
elected or appointed has one year within which to file an action in court to recover the public
office from which he was ousted illegally. If he does not take advantage of the one year period to
institute an action, to recover the public office, then his right recover the public office prescribes.
And the mode of terminating official relationship would then be prescription, it could also be
abandonment, his abandonment of the right to recover. Although, at the outset, the premise is
that he was unlawfully ousted, there was no voluntary relinquishment of the office himself, alright.
So, the one year period is supposed to run and is not interrupted even when the public officer
institute some action by way of an administrative remedy. So, administrative remedies will not
interrupt the running of the one year period. The intention according to the Supreme Court of the
one year period provided in the rules of court is that the uncertainty over public office should not
be made to pen for a long time and of course, it has to do with a person being awake and
conscious of his rights and taking advantage of his rights. All this, class, are basic principles
relative to prescriptions and we have however, an aberration here, an aberrant decision in the
case of Cristobal vs Melchor. When President Marcos was elected to office, a lot of subordinate,
lower ranking employees in the office of the executive secretary in Malacanang were dismissed
ostensibly in violation of the Civil Service Law. A number of them went to the Civil Service
Commission, kasi ang Civil Service Commission at that time was under the office of the
President, so, a lot of them decided went to court taking advantage of the one year period except
one. One of them went back to Malacanang and nakiusap doon and so medyo na anuhan sya,
mabuti naman hindi ka na pumunta ng court, huwag kang mag-alaala ibabalik ka maghintay ka
lang ng konti, alright. Sa madaling istorya, after one year pabalik-palik sya, maghintay-hintay ka
lang, malapit na, malapit na (laughs), okay, so yun na nga. After several months more ganon pa
rin ang sinasabi sa kanya. In the meantime nanalo na ang kanyang mga kasama sa court, nagappeal ng ano, so, may panalo na, sya pabalik-balik pa rin sa Malacanang. Oo, madali na lang,
sandali ka na lang, ma-aapoint ka na. To make the story short, inabot ng pitong taon ang pabalikbalik nya and yun. Until, finally, by that time, there was already a Supreme Court decision in the
case filed by his other co-employees. The finding was of course in favor of the employees and
so, they were ordered to return to work. Ay, ito namang kawawang bida (laughs), yung kanyang
mga kasama nakabalik na sya pinangangakuan pa rin, huwag kang magalaala, susunod ka na.
So, he went to court after 7 years. Because of the peculiar circumstances, however, class, the
Supreme Court said, we should allow him to go to court and he should then be entitled to the
benefits given to his fellow employees that should also benefit him even if he seemed to have
slept on his rights. Apparently, class, the Supreme Court recognized the fact and believed him
when he said that he was really went back to Malacanang several times, he was promised that he
would be reinstated anyway. So, that was the reason why he did not go to court, even if it took
him 7 yrs to realize that he would not be reinstated at all, okay. Alright, so that takes care the Law
of Public Officers.

ELECTION LAWS
So, we move on to Election Laws. Tsk, my favorite subject. Noong after 1987, I ran in
1987, I lost. I ran again in 1992, and I lost. Noong nag-lelecture ako sa Political Law sabi ko sa
mga estudyante, I hope you do not equate my knowledge in Political Law with my miserable
record in politics (laughs), alright. Election Laws, you know that I lost in the election nanaman,
baka hindi kayo, baka sabihin nyo anong nalalaman sa eleksyon nyan e talo ng talo naman
(laughs), alright. Anyway, marami tayong istorya dito. Let us just go to, para lang hindi na ito
pag-usapan bukas, at least yung Constitutional provisions on the Commission on Elections. But
before that, of course, the other Constitutional provisions in Article 5, well, the definition of
suffrage, wala naman sa Article 5, but it has to do, of course, with the right to vote in the election
of people who are suppose to represent the people in government and also in for the
determination of important political questions. Yung mga iba, basahin nyo na lang, except, the
Constitutional mandate found in Article 5, I think its in Section 5 of Article 5. Una, it is a mandate
to Congress to devise a system that will ensure, of course, the sanctity, the secrecy and sanctity
of the ballot. And provide for absentee voting for qualified Filipinos abroad. This has already
been done, the one on absentee voting. Class, in fact, we have, pero, again this is beyond the
cut off period, the case of Macalintal vs Commission on Elections on certain provisions there,
absentee voting. Then, to provide a system were by the disabled and the illiterate can vote
without the assistance of anyone. This has not yet been done by Congress. And so, today, even
in the matter of registration of illiterates and disabled, they may register with the assistance of a
relative within the fourth civil degree by consanguinity or affinity or with the assistance with the
election officer or with the assistance of anyone representing a duly accredited citizens arm, duly
accredited by the Commission on Elections. During the voting, the illiterate or the disabled has to
have what is know as an assistor, I dont know, for want of any term mukhang hindi sila

173

makakuha ng, ayaw nila ng assistant kaya assistor ang tawag nila (laughs). Assistor who must
be a relative or member of the household or a member of the board of election inspectors, a
member of the BEI in the precinct were the disabled or the illiterate is expected to vote.
Maraming nanyayari nito sa election, ang member of the board of election inspectors, unlimited
ang pwede nyang e-assist, he can assist an unlimited number within the precinct who are
disabled or illiterate voters. So, tinatanong nung assistor, sino bang iboboto mo? Syempre si X.
Marunong ka bang bumasa? Hindi po. Ilalagay nya Y (laughs), okay.
Alright, so, before we go to the registration of voters, class, sa registration ng voters yung
continuing registration law, yun lang, konti lang naman dun sa continuing registration law. Then,
we go to the filing of certificate of candidacy. Doon medyo meron tayong pagusapan, including
the authority of Commission on Elections over certificates of candidacy. And then, after that,
most of these are reading matters already. Yung campaign propaganda, yung mga prohibited
ano doon, and then the board of election inspectors watchers, etc., the casting of vote, the
counting of votes, rules on counting of votes, then, canvass and proclamation, basically, what is
canvass and the duty to proclaim after canvass. And then, so, tomorrow we will talk about
registration of voters mainly. Then, certificates of candidacy and then we will glide through the
others, and then, discuss pre-proclamation contest and election contests, more comprehensively.
I hope we can finish. But tonight we will try to finish.
The Commission on Elections is one of the Constitutional Commissions, one of the three
Constitutional Commissions institutionalized in the 1987 Constitution. It is to be composed of a
chairman and six Commissioners who are to be appointed by the President with the consent of
the Commission on Appointments for a term of 7 yrs without reappointment, alright.
Qualifications, natural born citizens of the Philippines, on the day of the appointment must at least
be 35 yrs of age, holders of a college degree, provided however, that the majority including the
chairman must be members of the BAR, with at least 10 yrs practice of law behind them. And
must not have been candidates in the election immediately preceding the appointment. As usual,
no temporary or acting appointment or designation shall be made, Brillantes vs Yorac. We
mentioned that yesterday, alright. Important, very important, the COMELEC seats either en banc
or in division, in two divisions in fact. Provided, however, class, that all election cases including
pre-proclamation cases shall first be taken cognizance of and resolved by the Commission on
Elections in division. Provided however, that the motion for reconsideration shall be resolved by
the Commission En Banc, alright. In the case of Sarmiento vs Commission on Elections, there
were more than 40 companion cases all of which the Supreme Court dismissed because they
were taken cognizance of by Commission on Elections en banc, the Supreme Court said, no!
Kailangang division muna.
July 21, 2004
All cases appealed from the municipal of the Municipal Trial Court, all of these cases
including pre-proclamation cases must be decided by the Commission in division before it can be
decided by the Commission en banc. However, the Supreme Court has sustained the contention
of Commission En Banc that in the matter of correction of a manifest error, the matter can be
taken cognizance of directly by the Commission En Banc, even if the correction of the manifest
error may involved what may be an issue in a pre-proclamation contest. What is the nature of the
manifest error, for example, that requires correction? Sabi ng Supreme Court, merong bagong
case dito, Jaramilla, its a 2003 decision kaya hindi na, ang Jaramilla is really also a reiteration of
swords of the ruling of the Supreme Court in Torres vs Commission on Elections. So, Torres ang
nasa inyong notes, Jaramilla is really September or October of 2003 already. But ganito lang, the
error consists in an erroneous copying of the number of votes credited to a candidate. Copying of
the figures appearing in the election return and transferring these figures in the statement of
votes. And so, the petition for correction of the manifest error, is for the correction of the clear
error appearing on the statement of votes which does not correspond to the figures appearing in
the election returns which were the one canvassed. Ito, ang election returns ang kina-canvass
dito, hindi yung certificate of canvass kasi ang canvassing board, election return ang kinacanvass so iyon ang pinabasa, meron namang staff na meron ding mga alalay ang mga
kandidato doon na nanonood talaga na tama ang sa statement of votes. Ganito ang procedure,
canvassing, binabasa sa election return ng board of canvassers, municipal board of canvassers,
election returns eh, alright. GMA, 100. FPJ, 2, (laughs), alright. Dito sa ano, part of the staff of
the board of canvassers are people who will, g yugagawa ng statement of votes, alright. Precinct
number 22, GMA, 100, FPJ, 2, ganyan. Later, class, doon sa local municipal level, yung
statement of votes will be the basis already, the basis for the certificate of proclamation. Iproproclaim na ang Mayor-elect, Vice-Mayor-elect. Members of the Sanggunian, pag e add-up the
lahat dito sa statement of votes. Ayan si ano, lalo na sa, nagkakadayaan yan ng madalas sa
Sanggunian dahil kokonti lang ang difference ng mga yun, medyo sadyain lang na mali ang
ilagay na number para ang total. So, what are we looking at? We are looking at a correction of a
wrong entry in the statement of votes because what appears in the election return is not reflected

174

correctly in the statement of votes. So, the Supreme Court said, this is a simple clerical
correction to be effected, eh simple clerical matter. So, hindi na kailangang dumaan pa sa
division, etc. It can be taken cognizance of directly by the Commission En Banc at i-order lang, o
i-correct nyo lang. Ang usual na reason naman ng mga staff nyan na nagkamali, kasi hatinggabi
na dalawang gabi na kami, hindi kami natutulog kaya sinadya namin (laughs), alright. So, thats
it. Almost all other things, division. Pero, again, dyan sa division, we are talking of quasi-judicial
powers only. When, yan, election cases, it entails the use of quasi-judicial powers of the
COMELEC because kung purely administrative matter, hindi kailangang na it must first be heard,
decided, in division before it is decided by the Commission En Banc, pag purely administrative,
hindi quasi-judicial. Pag quasi-judicial talagang En Banc muna, except yung correction of
manifest error which made form part of pre-proclamation contest, allowed yun by virtue of your
jurisprudence. Now, when the Commission on Elections, for example, decides to award a
contract for the supply of ballot boxes na gagamitin sa election. It doesnt have to be coursed
through the Commission in division and then on motion for reconsideration Commission En Banc.
Hindi na, the Commission En Banc will rule on that directly, take cognizance of the case directly
because this does not entail an exercise of quasi-judicial powers, okay.
And so, related to this case, class, the matter of seeking review of the COMELEC
decision from the Supreme Court on a petition for certoarari. Una, you cannot go to the Supreme
Court from the decision of COMELEC in Division, you are mandated to file a motion for
reconsideration with the Commission En Banc. Ang motion for reconsideration is taken
cognizance by the Commission En Banc and it is only the Commission En Banc decisions that
may be brought to the Supreme Court for a petition for certoarari. Second, again, you go up to
the Supreme Court on a petition for certoarari only in cases of decisions of the Commission En
Banc which were arrived at in the exercise of the quasi-judicial powers. Because if the
COMELEC En Banc simply acted within its own purely administrative, acted in the exercise of
purely administrative powers, then, you do not go to the Supreme Court on a petition for
certoarari. You go to the appropriate court of general jurisdiction or a tribunal that has primary
administrative jurisdiction. For example, in a matter of appointment, sa Commission on Elections.
The Commission decides to appoint X as Division Chief, the appointment is contested by
somebody who claims that he has better title to the position because he is better qualified, he has
more experience, he has etc., etc, okay. You do not go to the Supreme Court on a petition for
certoarari. You go to the Civil Service Commission, you appeal the decision on the appointment
based on being a personnel action. You go to the Civil Service Commission, then to the Court of
Appeals, then so on. Award involving a contract for the supply of ballot boxes, you contest the
decision. You do not go to the Supreme Court on a petition for certoarari, you go to the RTC
because this is a purely administrative matter, yun ang kauna-unahang, agad-agad. Una, yung
En Banc and then yung division and then, yung pagkakaiba ng purely administrative and quasijudicial functions, okay.
Then, of course, class, the Constitutional powers and duties of the Commission on
Elections;
One, enforce and administer all laws relative to the holding of the elections, plebiscites,
referenda, initiative and recall, alright. The initial, among the first decisions of the Supreme Court
after the 1987 ratification of the Constitution, was its statement to the effect that under the 1987
Constitution the Commission on Elections is granted vast powers in order to attain the
Constitutional objective for which the Commission has been created mainly to ensure the holding
out free, orderly, honest, peaceful, credible elections, yun. So, what are included here? Included
here are in fact some provisions in the Constitution itself which includes, for example, this is part
of the power to enforce and administer laws relative to elections the fact the provision that the
President may not extend any pardon to one who has been convicted violating election laws,
unless, there is a favorable recommendation by the Commission on Elections. The Constitutional
provision also that the Commission on Elections shall have the authority or the power to regulate
media and transportation, franchises covering media of communications, etc. And for this
purpose, I would like to call your attention to a number of cases starting, for example, with
Sanidad, I think we have mentioned this, the second Sanidad vs Commission on Elections were
the Supreme Court said, that while the Constitution recognizes the authority of the Commission
on Elections to regulate media of information, it does not have the authority to regulate
practitioners of the media. And of course, class, the Philippine Press Institute, were the Supreme
Court said, that the COMELEC resolution requiring that newspapers to give for free page in
every daily issue of the newspaper for use by the Commission on Elections is not a valid exercise
of the police power because the Commission on Elections has not shown that there is any
imperious public necessity to warrant the taking of newspaper space. It is instead an exercise of
the power of the eminent domain. Accordingly, the COMELEC must pay. Then, of course, in
Social Weather Stations vs Commission on Elections, the latest of our cases here, the Supreme
Court said, that the participation of the Commission on Elections in prohibiting the publication of
results of exit polls made ostensibly on the basis of the Constitutional grant of authority that it can

175

regulate media including media communications, mass media included, is limited. Ito na paulitulit na sinasabi ng Supreme Court. Intervention of the Commission on Elections in these areas of
freedom of expression limited to ensuring equal opportunity, time, space, and right to reply, paulitulit na sinasabi ng Supreme Court yan sa mga cases, mula pa sa Philippine Press Institute
hanggang sa Telecommunications of Broadcast Attorneys, doon pa sa Osmena vs Commission
on Elections, hanggang sa ABS-CBN, and then, itong SWS, paulit-ulit yan. Limited to ensuring
equal opportunity, time, space, and right to reply, okay. So, vast ang powers ng Commission on
Elections in connection with enforcement and administration of all laws and regulations relative to
the conduct of elections and other political exercises.
In a little while, or may be tomorrow na lang, we will see also that these powers, so-called
power of the Commission on Elections to enforce and administer laws. This is supplemented by
statutory powers granted to the Commission on Elections by Congress in a number of legislative
measures passed by Congress. Including, for example, the authority granted to the Commission
on Elections to punish for contempt under statutory grant, alright.
July 22, 2004
Commission on Elections
We continue with the COMELEC. Yesterday we finished on the constitutional powers and
functions of the COMELEC. The enforcement and implementation of all rules, conduct, etc.
relative to the conduct of elections, plebiscite, referenda, recall let me just call your attention first
that in connection with the exercise of the power of the COMELEC to investigate cases prosecute
violation of election laws, this is not supposed to be in the exercise of quasi judicial powers by the
COMELEC. And this is classified merely as one for those purely administrative powers. But you
will see the distinction more or less when we go to the 2 nd and the 3rd of the constitutionally
provided powers and functions of the COMELEC. Part of the enforcement powers of the
COMELEC and by virtue of the grant of powers to the commission under the law, the COMELEC
may also declare failure of elections. But note class of the provision in the Omnibus Election
Code in this respect, there are supposed to be only 3 instances, one where no voting actually
takes place in the polling place on account of fraud, terrorism, force majeure or analogous
causes. 2nd when the election has been suspended even before the time for the closing of the
voting on account of force majeure, fraud, violence, terrorism etc, and 3 rd, when in the preparation
and transmission of the ER as well as the canvassing and custody of the same, nonetheless
there still results failure to elect on account of force majeure, etc. The 2 nd of the constitutional
powers and functions of the COMELEC is precisely the authority the commission has over
election cases and the constitution provides that the COMELEC shall have exclusive original
jurisdiction over all cases involving the election returns and qualifications of regional, provincial
and city elective officials. Exclusive original. And exclusive appellate jurisdiction over cases
involving ER and qualifications over municipal as well as barangay elective officials.
1st on the exclusive original jurisdiction. So any and all cases relating to ER and
qualifications of regional. Provincial and city elective officials shall be cognizable by the
COMELEC. The cases however must be decided and held by division before a reconsideration
may be decided by the commission en banc. In the matter of the appellate jurisdiction which the
COMELEC has over RTC and MTC decisions involving municipal and barangay elective officials,
note that even as the constitution speaks of the decision of the COMELEC as final and executory,
nonetheless the SC has ruled that this has not foreclosed the exercise by the SC of its certiorari
decision over the decision of the COMELEC. Remember again that these cases on appeal of the
RTC or the MTC heard and decided in division before a motion for reconsideration may be
resolved by the COMELEC en banc.
Next, class that note that in connection with the exercise of its quasi judicial powers of
under the 2nd paragraph of section 2, the constitution also vests in the COMELEC as in fact it also
vests the same authority to the 2 other constitutional commissions the power or the authority to
promulgate rules governing pleading and procedure in the COMELEC, subject of course to the
overall authority of the SC where in the constitution in article 8, you find the provision to effect that
rules in the pleading and practice and procedure in quasi-judicial agencies shall be valid unless
disapproved by the SC. Note again that just as on all other rules are subject to certain limitations,
these rules promulgated by the COMELEC shall not diminish, increase or modify substantive
rights. But in this connection, this will illustrate the COMELECs full discretion or authority over its
own rules that even as the COMELEC for example has rules relative to the payment of docket
fees, the payment of appeal fees, requirement on a certification on non-forum shopping, the SC in
a 2003 decision has declared that it is within the authority of the COMELEC to relax its own rules
on this such that even if there is no payment of appeal fees or docket fees despite decision on
earlier cases to the effect that the appeal is not perfected without the payment of the appeal fees,
the SC has said that it is within the authority of the COMELEC precisely to waive all these
because after all it has the discretion to promulgate these rules. Second, notice the procedure

176

prescribed by the COMELEC in appealed cases to it. The matter for example the appeal to be
made within 5 days from the decision of the RTC or by the MTC, appeal to the COMELEC and a
MR in the RTC or MTC is a prohibited pleading. Then the matter of execution pending appeal.
While the COMELEC has appellate jurisdiction over all of these cases, in the RTC or MTC, the
SC has declared that it is not within the authority of the COMELEC to deny the right or the power
of the RTC to issue writs of execution pending appeal. Of course again in a 2003 decision, the
SC said that these writs of execution pending appeal must be exercised cautiously by the courts
and the SC has declared that only in highly meritorious cases may the trial as it were issue writs
of execution pending appeal. The SC in this recent 2003 decision mentioned that the following
may be considered for purposes of issuing a writ of execution pending appeal, 1 the will of the
electorate in a public interest involved, 2 where the shortness of the remaining portion of the
term which has been used in a number of cases, this is deemed to be a meritorious case in
granting execution pending appeal, and the 3 rd is the length of time during which the election
contest is pending which is of course has to do with the length of time that will remain in the
public office being contested. Then of course procedurally the motion for the issuance of the writ
of execution pending appeal should be made before the expiration for the period pending appeal,
so that the court still has jurisdiction over the case prior to the expiration of the period pending
appeal. Relatively old cases include the case of Flores, where the SC declared unconstitutional
the law passed by the congress granting appellate jurisdiction over election cases involving
barangay elective officials to the RTC. This is a clear violation of the constitution. And of course
again the authority of the COMELEC to issue in appealed cases writs of certiorari, prohibition or
mandamus where the SC declared that the provisions of the old election code were not actually in
this respect nor amended by the new legislation. Recall also that in connection with the exercise
of the power to punish contempt, the COMELEC can punish contempt when it is exercising these
quasi-judicial powers. In the exercise of its exclusive original jurisdiction over cases involving
regional, provincial and city officials and in the exercise of its appellate jurisdiction over municipal
and barangay electoral contests. The third of these constitutional powers and functions of the
COMELEC is the power to decide save those involving the right to vote all election matters,
including the location and number of polling places, the appointment of election officials, etc.
Clearly then, in this connection, the constitution vests In the COMELEC administrative NOT
quasi-judicial powers. Purely administrative powers, and thus we go back to the proposition that
when the COMELEC exercises merely administrative powers then you do not go the SC on a
petition for certiorari. The action of the COMEELC may be questioned before a court of general
jurisdiction such as the RTC. We have a 2003 decision where the SC said that in the conduct of
a special election, I think it was Kawasa vs. COMELEC, it is still the COMELEC that ultimately
decides the location of polling places and so where without COMELEC authority the voting was
transferred from the regular polling place to another place, the SC said that such transfer since it
was made without authority from the COMELEC was illegal. In the same case concerning the
appointment of election officers, the SC also declared that the designation of military personnel to
act as board of election inspectors was invalid. Not only did the appointment or designation of
military personnel violate the authority of the COMELEC, the constitutional authority to appoint
election official, it also violated the law itself, the Omnibus Election Code under its provision that
the board of election inspectors shall be composed of public school teachers. In the event there
are not enough public school teachers for this purpose, then even private school teachers may be
tapped. In the event even private school teachers are not sufficient in number for this purpose
then other civil service officials and employees may be tapped for this purpose. Of course other
government officials belonging to the civil service of known probity and competence which is up
to the COMELEC again. Now the constitution says, decide all questions save those involving the
right to vote, true it is not th eCOMELEEc that has the authority to decide questions regarding the
right to vote, it is the court and in fact in yet another paragraph in section 2 of article 9(c), you
read in the constitution the fact that the COMELEC may upon complaint of any person or on its
own find, petition for its inclusion or exclusion. The decision on questions involving the right to
vote is supposed to be resolved by the court in inclusion and exclusion proceedings. But in the
matter of registration of voters which is another of the constitutionally granted authority, the matter
of registration of voters, the COMELEC through the registration boards, may initially rule upon a
question involving the right to vote because there is the need to register a person who wishes to
vote so he registers and when he registers he can be questioned there. And the initial
determination on the question shall be made by the registration board and the registration board
is authorized by the COMELEC. In that sense, the COMELEC does in fact rule initially, albeit not
finally, questions involving the right to vote. And so again class, when exercising anyone of these
purely administrative powers under paragraph 3, the COMELEC cannot punish anyone for
contempt as held in the case of Guevarra. In Guevarra, what happened was Guevarra wrote an
article that apparently did not seat well with the COMELEC, but the article had to do with the
procedure for the bidding of the supply of ballot boxes. When the COMELEC sought to punish
Guevarra for contempt, and Guevarra went all the way to the SC court, the SC said that the
COMELEC even if it granted by law the power to punish contempt, nonetheless may not exercise
its power under the circumstances because it was not performing quasi-judicial functions.

177

Next we have the power of the COMELEC to deputize, with the consent of the president,
law enforcement agencies and for that matter officials and employees in government. Deputize
them in order that they may perform what are called election duties for the purpose of ensuring
free, orderly, honest, peaceful, credible elections. One thing you only have to remember: Tan vs.
COMELEC. These are people who belong to various executive departments. Most of them and
unang-unang nyan teachers deputized by the COMELEC. And then military personnel may be
deputized by the COMELEC. Then of course policemen may be deputized by the COMELEC. In
the matter of imposing sanctions if these deputies violate COMELEC rules or violate election
laws, administratively these deputies may be punished, administrative penalties may be imposed.
First, in Tan vs. COMELEC, the SC said the COMELEC is in the best position to conduct and
investigation because after all the act or omission of these deputies were done while they were
deputies of the COMELEC. So the investigation may be made by the COMELEC but the
COMELEC cannot impose the penalties themselves on these deputies. The COEMELC can only
recommend to the president through the appropriate department or agency the imposition of such
administrative functions as may be proper under the circumstances after the COMELEC has
investigated and has found the deputy to have committed such violation. Next, the power to
register political parties, organizations, coalitions after sufficient publication and hearing as well
as to accredit citizens arms. Look at your party list system law, including the definition of a
political party, the kinds of political parties, what are sectoral organizations and so on. For your
purposes, perhaps the definition of a political party, a group of citizens advocating ideology and
platform, principles and policies for the general conduct of government and for the immediate
implementation of this. Generally they regularly nominate and support leaders as well as
members as candidates for public office. So perhaps what you really have to memorize is the
constitutional provision on the groups that may not be registered as political parties, religious
denominations and sects, those who seek to achieve their goals through violence or unlawful
means, those who do not uphold or adhere to the constitution, and those supported by foreign
governments. Of course in the law on the party list system , the registration of a political party
may also be cancelled for anyone of those reasons including if it is a religious sect or
denomination or a religious organization or an association organized for religious purposes. If a
group advocates the use of violence or unlawful means or its goals. If it is supported by a foreign
government or if it is a foreign association or if it is supported by foreign governments even
indirectly by foreign organizations. And then if it has violated any of the laws, rules, etc, if the
petition contains untruthful statements and if it has ceased to exist for one year and finally where
the political party has not participated in the lections or having participated in the last 2 elections it
does not obtained at least 2% of the total number of votes cast in the constituency where the
politicial party has fielded candidates. Note yung 2%, this is a threshold under the party list
system. One of the parameters, the 2% threshold that will entitle a political party registered under
the party list system participating in party list elections to a seat in the House of Representatives.
And so perhaps recall also. Ang Bagong Bayani OFW, Labor Party vs COMELEC on the basic
requirement that in order to be entitled to a seat in the house of representatives must represent
marginalized or unrepresented sector and that even the nominee must himself represent a
marginalized or unrepresented sector. Perhaps it is in this connection also that we should look at
the constitutional provisions on the party system. Ours according to the constitution is an open
party system. It is also known as a multi-party system as distinguished from the 2-party system
that we used to have under the 1935 Constitution. Its a multi party system. However the
constitution provides that no political party shall be entitled to be voted upon unless it is registered
with the COMELEC. For purposes of acquiring juridical personality, a political party shall acquire
juridical personality as a political party only when it shall have been registered with the
COMELEC. Even if having registered with the SEC it acquires juridical personality as an artificial
person, nonetheless it cannot acquire juridical personality unless registered with the party-list
system and class, no vote shall be counted or any vote cast upon any party shall be counted and
the entitlement to watchers shall be availed of only once the political party has been validly
registered under the COMELEC. Then the next important constitutional power of the COMELEC
is the power of the COMELEC to file upon complaint of a person or again motu proprio petitions
for inclusion or exclusion and the power to conduct investigation and in appropriate cases
prosecute violations of election laws. So these are two separate powers, the power to file
petitions for inclusion and exclusion which we will take up in little while and the power to conduct
an investigation and after finding the existence prima facie case file the corresponding criminal
action and prosecute the case in court. This is vested in the COMELEC and so the authority and
discretion is vested in the COMELEC. So what do we mean by that? For example in the case of
Judge Inting. It was error for the judge to require the provincial fiscal to sign the criminal
information because it was sufficient for the COMELEC officer to do so. Second, the prosecution
service of the DOJ may however be validly delegated this authority to investigate and to
prosecute. But even when there is such a delegation as in fact there is such a delegation, the
COMELEC still retains control of the prosecution of the case in court. Accordingly when there was
for example a decision by the trial court to dismiss the criminal action filed, it is not the prosecutor
who determines whether or not to go up for a petition for review or a petition for certiorari. It is the
COMELEC which is vested with such authority. And then of course the current rule that the

178

exercise of this power does not go into the quasi-judicial powers of the COMELEC and that this is
merely an exercise of administrative power. Then of course to recommend to Congress
measures to minimize election spending and fraudulent acts etc. measures that will ensure the
conduct of orderly, honest, peaceful, credible elections. That is of course a dream of the framers
of the constitution. I recall when chairman Christian Monsod was chairman of the COMELEC, the
COMELEC drafted what would have been a new election code. This was submitted to congress.
Congress did not enact that code. Congress merely picked some of the provisions that members
of the Congress wanted and those provisions were the ones made into law. Ayaw nila ng
mashadong maraming reforms. Tama lang yun dahil so many reforms will make it difficult to cheat
in the elections so ayun mahirap ng konti. And finally, the need for the COMELEC the report to
the president and the Congress after the conduct of an election, plebiscite. Referendum, initiative
or recall. Then we look at even briefly although we will go into each one of these in connection
with the electoral process already the statutory powers of the COMELEC. Again the more
important statutory powers of the COMELEC include the power to punish contempt, the power to
declare failure of election, the power to call for special elections and of course its being the sole
judge of pre-proclamation contests. So that takes care of the constitutional provision. Meron pang
isang constitutional provision, article 5, well take this up in connection with voters and registration
of voters. Class, siguro we just go through the electoral process mula sa registration of voters
etc. mas maganda siguro tingnan ang electoral process from that perspective instead of taking
individual provisions of the Omnibus Election Code. So mas maganda ito dahil mas exciting to.
Voters, the right of suffrage, who may exercise the right of suffrage, section 1 of article 5 of the
Constitution provides, Filipino citizen, resident of the Philippines for at least 1 year and in the
place where he proposes to vote for at least 6 months before the elections and 18 years on the
day of the elections and not otherwise disqualified by law. What are the disqualifications? Simple.
Conviction of an offense where the penalty involved is imprisonment for more than one year,
conviction of an offense involving disloyalty to the Republic of the Philippines and an insane or
incompetent as declared by competent authority. So, yun lang. Then of course we have the law
on continuing registration. The law simply says that registration shall continue day in and day
out, well of course during office hours office days you can register, except 120 days before a
general election, 90 days before a special election. And so for example when in the case of
Akbayan youth vs. COMELEC, the Akbayan youth went to court asking the court to order the
COMELEC to provide more days for registration of youth who will then be able to vote for the
sangguniang kabatan election because according to the Akbayan youth which is the youth arm of
the Akbayan political party under the party-list system, there were more than 4 million qualified
voters who were not able to register for the sangguniang bayan elections. The SC dismissed the
petition because the COMELEC was just following the law because it was certainly much much
later that the 120 days before a general and 90 days before a special election. Siguro wala
naming challenges to register. Yung registration of an illiterate or disabled voter, we mentioned
this already in the matter of registration. The actual filling up of voters affidavit may be
accomplished by a relative within the 4 th civil degree of consanguinity or affinity or by a member of
the registration board of the COMELEC or by a accredited member of the citizens arm of the
COMELEC. Then the matter of inclusion and exclusion proceedings. Note that the jurisdiction
over the inclusion and exclusion proceedings is vested in the Metropolitan Trial Court in cities and
Municipal Trial Courts in municipalities. Where a person finds that his name has been erased
from the registry list or voters or where he fails to register or where he was denied registration, he
may on his own complaint go to the COMELEC or the COMELEC may file a petition for inclusion
provided the at the petition is filed not later than 105 days in a regular election and 75 days in a
special election. Notice , u do this primarily when the continuing registration has stopped and so
tingnan nyo, when the continuing registration stops before 120 days in a general election, you
only have 15 days within which to file a petition for inclusion. Ganun. On the other hand, you see
that the name of the person who has lost his Philippine citizenship for example or no longer
resides in the place or has since then been convicted of an offense yet his name is still in the
registry in the list of voters, a petition may be filed for the exclusion of that individual. So yun
yung inclusion and exclusion proceedings. The idea is for the court to rule on the matter as much
as possible finish this in 15 days para masama pa or matanggal ang pangalan as the case may
be. Of course from the decision of the Municipal Court or the Metropolitan Trial Court appeal may
still be made to the RTC whose decision shall become final and executory on the matter. And so
given these, look at the grounds for deactivation of ones registration as a voter. Yun ding 3 na
cases, conviction of an offense where the penalty involved is imprisonment for more than one
year, conviction of an offense involving disloyalty to the Republic of the Philippines and an insane
or incompetent as declared by competent authority. And then where a person has failed to vote
for 2 consecutive elections, then his name is stricken of, his registration is deactivated. We talk of
regular elections. Then where of course by virtue of a court order his name is excluded from the
registry list of voters pursuant to a decision in an exclusion proceeding. And finally where the
registered voter loses Filipino citizenship. Incidentally class remember that the qualification for
voting are found in section 1 of article 5. therefore, the requirement of registration is not a
qualification for voting. Sabi ng SC in a na old case, it ias merely a regulation not a qualification
for votee. Tingnan nyo, up to 120 days before the election registration. Kaya in the last few days

179

before the 120 days, nagkakandarapa na yung mga candidato para magdala ng mga tao na
magreregister. Then of course again kasunod natin ang mga political parties. We have discussed
that in connection with the power of the COMELEC to register and accredit political parties.
Pagkatapos nyan, normally, the filing of the certificate of candidacy. The first thing to remember
is you file a certificate of candidacy for a particular public office, you must know the qualification
prescribed by the constitution or by law for the public office. Because the candidate must
possess all the qualifications and none of the disqualifications. So the qualification for each of the
elective public office differs from one another, depending on the positions. But the
disqualifications remain the same. The disqualifications under the Omnibus Election Code, 1)
insane or incompetent, 2) conviction of an offense involving insurrection or rebellion or any other
offense where the penalty offense involved is more than 18 months imprisonment. 3) conviction of
an offense involving moral turpitude and 4) where the candidate is a permanent resident of or
immigrant to a foreign country. Sa moral turpitude, conviction of violating Batas Pambansa 22 is
apparently a case involving moral turpitude and so in the case of Villaver vs. COMELEC where it
was congressman Cagas who filed the case for disqualification considering that his opponent
had been convicted of violating BP22 which carries with it moral turpitude. Then on the matter of
immigrant to or permanent resident to a foreign country, that relative old case of Caasi vs.
COMELEC, in the case of a mayoral candidate who possessed a green card, the SC took judicial
notice of a fact that when a person is in possession of a green card, he an immigrant to or a
permanent resident of the USA. Accordingly he is disqualified from running for elective public
office. Then we have sec 40 of the LGC for the disqualifications of local elective public officials.
We will discuss them in connection with local governments. Whatever elective position you wish
to aspire for, you must first file a certificate of candidacy. The COMELEC prescribes the form for
the certificate of candidacy. Let me ask you to recall the fact that the form has to be
accomplished under oath because there is supposed to be an undertaking and a declarative
statement to the effect that one has all the qualifications, that one adheres to and upholds the
constitution of the Philippines and that one undertakes to support such constitution and all the
laws of the Philippines. These undertaking if you will remember Mercado vs. Manzano and Vallez
vs. COMELEC, in the case of dual citizens, this undertaking is sufficient for purposes of
undertaking Filipino citizenship and for the purpose of renouncing as it were the other citizenship
or others if there are many because the SC said that that representation, undertaking and oath is
sufficient. However, the SC has declared that the mere absence of the oath, where the certificate
of candidacy is not notarized is not sufficient. Di notarized ang certificate of candidacy. The
Supreme Court said that is only a formal defect.
Where do you normally file a certificate of candidacy? If it is for a local position, it has to
be filed with the Commission on Elections office of the locality, where it is for a provincial office,
then with the provincial officer of the Commission on Election. This is material or this issue was
raised as a material issue in the case of Loreto Go vs. COMELEC, on whether a candidate who
files for a certificate of candidacy, must also, when he decides to withdraw, also file his withdrawal
in the office where he filed his certificate of candidacy. The SC said it is not necessary. After
having filed the certificate in the appropriate COMELEC, and later you decide to withdraw your
certificate of candidacy; your withdrawal under oath need not be filed in the same office. It may be
filed In the provincial office, if you file a certificate for a municipal position, or it may be filed even
in the central office of the COMELEC. So you are supposed to file your certificate of candidacy
within the time frame prescribed by the COMELEC. It is the COMELEC that prepares the
calendar for this purpose. And what are the effects of the filing of the certificate of candidacy for
appointive government official and employees including those working or employed in the
GOCCs even corporations without original charter, they shall be deemed ipso facto resigned
from the appointive public office. In the case elective public officials there is no longer any
prohibition. Basta, if you are an elective public official, you do not resign from the elective public
office, even if you file a certificate of candidacy for some other public office.
Then, withdrawal of certificates of candidacy. Of course, when a verified withdrawal is
filed with the COMELEC, then the effect of such withdrawal is to cease as a candidate for the
public office. But the withdrawal can be withdrawn, so the withdrawal of the withdrawal will revive
the certificate of candidacy originally filed provided that the withdrawal of the withdrawal be not
later that the deadline or the last day for the filing of certificates of candidacy. When a person
files 2 certificates for 2 different public offices, then he is not considered as a candidate for either.
But having filed 2 certificates dahil hindi pa sha sigurado kung san sha papasok, before the
deadline for the filing of the certificates of candidacy, he withdraws one, then he is deemed to be
a bona fide candidate for the other, from which he did not withdraw his certificate of candidacy. In
the event of death, withdrawal, or disqualification of a candidate, up to noon of election day, a
substitute candidate may file his certificate of candidacy provided however that the replacement
candidate belongs to the same political party certified by the political party concerned. Such a
substitute may therefore file his certificate of candidacy not later than noon of election day. In a
recent decision of the SC, the question was asked, what happens in the case of barangay
elective officials? What happens when there is death, disqualification or withdrawal of the

180

barangay candidate or a candidate for a barangay public office, can he be replaced or

substituted? The law in the case of barangay officials, remember class, the barangay elections
are supposed to be non partisan. Political parties are not allowed to participate in barangay
elections. that is another lie that they have been telling us all along no, ok pero sige nalang we go
with it, no partisan considerations. E papano, how can the substitute be named on the basis or
this provision in the Omnibus Election Code. Kasi nangyayari talaga ito, namatay yung lalaki na
candidato, the wife substituted and the wife won in the election. The question was, is she a
qualified candidate since she was merely a substitute. The SC said yes, Pero in the process,
declared as invalid the resolution of the COMELEC, may resolution ang COMELEC that no
substitution in barangay elections. The SC said the COMELEC resolution is not valid.
Ok, then where do you file your certificate with the COMELEC? And when the certificate
of candidacy is filed with the COMELEC as a general rule, the COMELEC has nothing but the
ministerial duty to accept and to acknowledge receipt of that certificate of candidacy. Ministerial
duty on the part of the COMELEC except in the following cases. There are 3 cases when the
COMELEC may inquire into the validity of the Certificate of Candidacy and declare the candidate
disqualified. So either cancel the COC or later declare the candidate who filed the Certificate of
Candidacy disqualified. First, with respect to nuisance candidates. In the case of nuisance
candidates, the COMELEC can outrightly refuse to accept or upon a petition made, conduct a
hearing and declare the nuisance candidate in the Certificate of Candidacy. Sino yun, si Eddie
Gil saka si Pamatong. A Nuisance candidate is one who has no bona fide intention to run for the
public office for which he filed a Certificate of Candidacy. The intention in filing the certificate
being merely to put the election process into this mockery of disrepute or to confuse the voters
because of similarities of names or for whatever other reason , he is clear that he has no bona
fide intention of running for public office. In the case of Eddie Gil or Pamatong, they had the
intention! Gusto nila talaga. gustong gusto nila, but the SC said hindi kasi dinagdagan na ng SC
yung kanilang standards for candidacy. Dinagdagan na nila ang standards na ito,nanloloko ka
lang,hindi totoo and intention ganyan. The second where there is a material misrepresentation
made in the Certificate of Candidacy. False entry in the certificate. The Certificate of Candidacy
section 74 of the Omnibus Election Code provides what the Certificate of Candidacy should
contain. If you have seen a Certificate of Candidacy you will see, we remember among the
information required in the Certificate of Candidacy are information related to the qualification of
the candidate: Citizenship, age, residence as a voter may be able to read and write. The SC said
where the misrepresentation is made with respect to a matter material to the election because it
goes into a requirement or a qualification prescribed by the constitution or by the law to be a
candidate. Then anyone any party interested any file a petition with the COMELEC within 25 days
from the filing of the Certificate of Candidacy for the cancellation of the Certificate of Candidacy.
Even as we are jumping to the last portions of the election law here class, ganito ito. This is
supposed to be the equivalent of a petition for a Quo Warranto because the question is for the
eligibility. This is the counterpart of a petition for QW. A petition for QW is filed after the
proclamation. But before the elections, this is your counterpart because you cannot file a petition
for QW before the elections to contest the qualifications of a particular candidate on the basis of
this petition to cancel the Certificate of Candidacy of the individual candidate. In the case of
Frivaldo, the petition was filed long after the election. But the SC still entertained the petition at
mashadong ang kaunaunahang kaso ng Frivaldo vs COMELEC, marami ang shortcut dun
procedurally. In the case of long, the question was age, kulang daw ang age but the petition was
filed beyond the 25-day period and so the petition was not acted upon. Now, so since this has to
refer to a requirement or a qualification, basically citizenship, age, residence registration as a
voter in the concurring opinion of Gutierrez, sinabi ni Gutierrez, because of what happened to
Frivaldo where the issue raised is citizenship, then the 25 day period need not be strictly
enforced. However, Where the issue raised is on any of the other qualifications as held in long vs
COMELEC, the 25-day period has to be complied with. Then, class, a petition for disqualification
of the candidate or if already elected is still a petition for disqualification for any of the grounds
mentioned in section 68 of the Omnibus Election Code, yung mga vote buying na terrorism,
violation ng prohibition of black propaganda, contributions, expenses, yung mga prohibitions on
campaign materials, destroying the campaign materials of another candidate etc. and anyone of
the election offenses mentioned in section 261 of the Omnibus Election Code. In any of these
cases, the COMELEC is not bound by the ministerial character of its duty in receiving accepting,
and acknowledging receipt of the Certificate of Candidacy. The COMELEC can then go into the
merits of the contention each year. Balik tayo sa material misrepresentation. The case involving
the Larrazabals of Leyte in the late 1988 elections. Mr. Larazzabal filed a Certificate of
Candidacy for the position of governor of Leyte. A petition to disqualify him under this paragraph 2
was filed with the COMELEC alleging that he was not a resident of Leyte. Not a resident of Leyte
in the sense that being a registered voter in Ormoc because of the charter of ormoc city, a
registered voter of Ormoc does not vote for the provincial officers of Leyte and therefore they
cannot be voted for. The COMELEC said Mr. Larrazabal is disqualified. The SC finally said
disqualified. So beyond the deadline for the filing of the Certificate of Candidacy, they had to look
for a substitute. Sabi ni Larrazabal, ang dami ko nang nagastos malaki nang gastos ko sa

181

kampanya na ito. I will only agree if my wife is the one who is made a substitute candidate. Those
who are close to him said, e papano your wife is also a registered voter in Ormoc. Your wife
could be subjected to the same disqualification one of the lawyers said puede yan, wag muna
tayo magfile ng Certificate of Candidacy, anyway under the law u have until noon of the election
day, basta Larrazabal lang ng Larrazabal ilagay. So they planned to file the Certificate of
Candidacy on a Sunday, the day before the election day paran wala ng time para magfile ng
petition for disqualification. Pero shempre lahat ng mga plano sa pulitika nalalaman ng kabila.
Maraming spy yan, the candidate for the governor, was the OIC governor Benjamin Abella, knew
about this and so he met with his advisers, lahat. They knew already that the plan of the
Larazzabals was for Mrs. Inday Larrazabal to be named subsitutte. So what did the Abella camp
do? Long before Mrs. Larrazabal filed her Certificate of Candidacy, the Abella camp filed a
petition in the COMELEC to disqualify her in the event she files her Certificate of Candidacy.
Class, it is only in election laws that you can do that, under what is known as a petition ex
abundante gaudelam, a petition ad gaudelam. So nakabinbin ang petition to disqualify. Ang
nakakatawa dun e kung nagiba ang isip ni Larrazabal at hindi si Inday ang nagfile as a substitute,
pero hindi tinuloy din nila. So they filed 1 day before the elections for Inday, there was no way for
the COMELEC to conduct a meeting to disqualify her. Election day na kinabukasan. And true
enough, the majority of the voters voted for Inday Larrazabal. However, as provided under section
6 of RA 6646, when there is a great probability of the candidate subject of the disqualification
being disqualified, the COMELEC may order the board of canvassers to defer proclamation of the
winning candidate.And so Inday Larrazabal was not proclaimed. There was a lot of legal action
muna sa COMELEC. And the COMELEC ordered that Larrazabal be proclaimed. The group of
Abella went to the SC and the SC declared Larrazabal as disqualified. This is the story behind
the Menzon vs. Petilla case, because Petilla was elected vice governor and Menzon was elected
no. 1 provincial board member. With the Final disqualification of Larrazabal, there was a vacancy
in the governor Petilla. Petilla succeeded as Governor and Menzon as vice governor. In the
following election, Gov. petilla did not run for reelection , it was his wife who ran for governor and
his wife won. In the recent election it was his son who ran for governor and it was his son who
won for governor. Dito, ganun din. Disqualification for any of the acts enumerated under sec 6
and here we have a recent decision in the case of Codilla vs. Jose de Venecia. Alam nyo itong
mga Ormoc mashadong magugulo sa election laws. Bakit? Madami tayong pinagaaralan dahil sa
kanila. Alright. Codilla was a candidate for congress within the 4 th district of leyte. The incumbent
congresswoman Victoria Larrazabal Locsin ran for the same position. In the course of the
campaign, Codilla was then incumbent city mayor Ormoc. A petition to disqualify Codilla was filed
with the COMELEC. Allegedly for using government resources, para magpadala ng mga
construction materials etc. the petition for disqualification was taken cognizance of by the 2 nd
division of the COMELEC. And one day before the elections , Codilla was ordered disqualified.
Codilla filed a MR later and on the day of the election voting, Codilla won by 17000 votes.
However, the COMELEC do not proclaim Codilla precisely because of the disqualification case
which was decided by the 2nd division of the COMELEC. Even as before finality in 5 days, Codilla
files a motion for reconsideration with the COMELEC en banc. In the meantime, the 2 nd division
directed the provincial board of canvassers to proclaim Locsin because according to the 2 nd
division, Codilla on the election day had already been disqualified and then therefore the votes
cast for him are stray votes and therefore should not be credited to him. On the basis of that, the
provincial board of canvassers proclaimed Locsin. When June 30 arrived, the COMELEC still
could not decide the motion for reconsideration so because Locsin was proclaimed, she took her
oath and entered into the performance of the functions of her office. And ayan na, she attended
sessions etc. even as the COMELEC still failed to resolve the motion for reconsideration. Later,
after oneyear or less than 1 yr, the COMELEC decided the Motion for Reconsideration and said
the proclamation of locsin is invalid and it is Codilla who is the duly elected congressman of the
4th district of leyte. Codilla said eto na meron nakong decision ng COMELEC. Locsin refused to
recognize the COMELEC resolution because according to Locsin the COMELEC already had lost
jurisdiction over the case because she was proclaimed, she took her oath, and she was
proclaimed a member of the house of representatives. Any question of election returns and
qualifications should be addressed only to the house of representative electoral tribunal division
on COMELEC. Ayaw ni Locsin umalis. And sabi ni Locsin, magfile ka ng QW sa electoral tribunal
para abutan ka ulit ng katapusan ng term. The locsin camp asked a registered voter to file a
petition for QW. You know a petition for QW can be filed by a registered voter and not necessarily
a candidate. Nagfile lang pero hindi naman finollow up dinismiss ng electoral tribunal. May QW
case na against him, dinismiss na ng electoral tribunal, with greater reason did she now say I will
not vacate., the COMELEC decision was rendered after it had lost jurisdiction, yun yung
opposition nila. So eto na naman, the codilla camp, panalo tayo ng mahigit 17000 votes, mahigit
1 taon na hindi makaupo yung nanalo. meron namng decision galling sa COMELEC. Codilla did
not bite yung dare na pumunta ka sa electoral tribunal because a QW is based on eligibility or
disloyotly so wala. Ofcourse the lawyers of Codilla were also not sleepy heads. Di naman sila
mga bobo ano. Magagaling din so finally and with the COMELEC resolution that had become
final and executory dahil hindi na pinareview ni Vicky Locsin because to ask review would be to
acknowledge that there is authority on the part of the COMELEC over her. Ayaw na nya

182

pinabayaan na nya nakakuha pa si Vicky Locsin ng opinion ng legal officer ng House of

Representative na the proper remedy is be to go the the HRET. So what did Codilla do? He went
to the SC for a petition for mandamus. Kaya Codilla vs De Venecia because the petition was filed
against the speaker of the HR to allow to take his seat in the HR pursuant to the COMELEC
decision proclaiming that he was the duly elected congressman from the 4 th district of Leyte.
Kaya maganda ang matagal ang mga issues. The SC said, una on this so called disqualification
of codilla which was the basis of the decision of the 2 nd division COMELEC, the disqualification of
the candidate must be final and executory already before the votes cast on him may be
considered stray votes because if the decision disqualification of the candidate is not final and
executory on the day of the elections, then the candidate is still a bona fide candidate and the
votes cast for him shall be counted as valid votes cast for him . not to count them would be to
disenfranchise the voters who cast their votes for him who has not yet been disqualified by final
judgment. Pagkatapos sinabi ng SC, on the jurisdiction of the COMELEC, the COMELEC en
banc still had jurisdiction over the case because the proclamation of Vicky Locsin was a nullity.
And so even if she had taken oath and entered into the performance of her official duties,
nonetheless, the proclamation being a nullity, then her continued performance of her function
would nevertheless have no effect, no title in her at all. The SC treated the contention of the
respondents that Codilla should go to the HRET it is at the height of the absurdity to ask the
winning candidate to go the electoral tribunal and file a petition for QW against the losing
candidate. Yun. So ok, yun ang ating rules dyan and of course class yun section 6 ng ra6646 na
the COMELEC MAY defer proclamation of the winning candidate kung meron nang decision ng
division even if that decision is not final disqualifying the candidate then of course the
proclamation may be deferred. Eto, balik tayo sa nuisance candidate. X was declared a nuisance
candidate and his Certificate of Candidacy ordered cancelled. He filed a MR pending with the
COMELEC en banc. In the meantime nagelection so binoto sha. The votes were counted even if
his declared a nuisance candidate since the decision has not yet become final. The winning
candidate is proclaimed and it so happens that the nuisance candidate is not the winning
candidate, the SC said the MR of this candidate declaring him a nuisance candidate has become
moot and academic since the winning candidate has already been proclaimed and elected. And
then finally, in the cases where the declaration of disqualification is not final on election day, the
candidate who obtains the 2nd highest number of votes is not proclaimed elected even if the
candidate who obtains the highest number of votes is disqualified. Again the candidate who
obtained the 2nd highest number of votes would to be to give credit to the candidate who was not
chosen by the people. This would mean disenfranchisement for the number of people who voted
for the winning candidate. Ofcourse he was eventually declared a disqualified candidate. So,
yun. Now from there Certificate of Candidacy so yung mga propaganda contribution, expenses,
campaign, etc. may I just ask you to read yung mga ano, I dont think naman P****** yung mga
examiner tanong yung mga enumerate the prohibited propaganda, yung kamukha ng mga
cigarette ligheter, fans, these are among those prohibited propaganda, pati yung mga size
limitado, posters, then yung contributions. For ex. It is prohibited for a candidate to contribute
money to a church. Daming humihingi. yung sa mga barangay, congressman, tatapusin naming
tong simbahan, tatapusin daw e P****** iisang poste lang ang nakatayo e! ako pa magpapatapos
nyan! Aynako. Isipin nyo and u tell them alam mo bawal yan under the Omnibus Election Code.
Anong mas gusto mo, yung boto naming o yung bawal, ano? Dukot ka dun dukot dun. Hayop na
buhay to. Maraming prohibited pati yung mga solicitaions ay sus madaming prohibited dyan. Ang
nakakatuwa lang dun e The current law on election is grossly unrealistic! Ay nako. Ok, so basahin
nyo nalang. Yan. Insofar as the requirement to file a statement of contribution of expenses, recall,
the SC said that even a candidate who files a certificate and who did not pursue his candidacy is
still required to file such statement of contribution and expenses. Ok. The n comes mageelection
day na. Magaapoint na yun gmembers of the board of election inspectors. Who must be public
school teachers? Sinabi na natin kanina , kung kulang private school teachers, kung kulang
padin, employees government officials or employees belonging to the civil service who are known
for probity and competence. Gusto ko lang ipakita sainyo na the Board of Election Inspector
(BEI), 3 public school teachers, they stay in the poling place precinct. Siguro naman di na
magtatanong ng qualifications of the BEI, o qualifications ng mga watchers, casting of votes, ditto
ang casting of votes. So, what are the things that happen to the precinct? The control of the BEI.
Dito sa baba, casting, counting of votes, appreciation of ballots, preparation of the election
returns. Ang last dito election return. So, casting of votes pagkatapos dyan the counting may
mga nasa law kung ano ang position ng ano, jkung nasan ang watchers. While the votes are
counted, you use the rules on appreciation of ballots. And the most common question on
appreciation of ballots are the principle of idem sonans where what is written in the ballot is a
misspelled name, but which when read out loud sounds like the name of the candidate, then the
candidate whose name sounds like the one written in the ballot shall be credited the number of
the ballot. It is in this counting of votes that you also look into the matter of valid or void ballots
dahil pagbukas doon, there is supposed to be a container, part of the ballot box contain spoiled
ballots while the vote is being cast. So, class these are the things that happen, casting of votes,
counting, and in connection with counting rules on appreciation. And then preparation of the
election return (ER) . Dito palang tayo rules on appreciation. Dito even on the matter of

183

appreciation the BEI can declare that a vote is a stray vote. Kaya I think it was in 1995 where the
bar exams in political law contain ed a question on stray ballots. There is no stray ballot. There is
a stray vote. There is void or valid ballot or there is a spoiled ballot because it may be a marked
ballot but the ballot itself is not strayed because if the ballot is filled up and for instance in the
space for president is written the name of a person who is not a candidate for president, that is
not to be credited because it is a stray vote, it is not a candidate for the president. The rest of the
ballot is not affected unless the name written there unless the name written there is intended to
identify the voter in which case that becomes a marked ballot and the entire ballot may be
invalidated. But walang nagaano dun sa precinto. Maski mga watchers na trinain mo. Pero ganun
saka dito sa counting, meron nang mga paper statement din yun, statement of votes while the ER
is supposed to prepared simulataneaiouls with the counting. The ER, malapad na papel yan,
kung ano yung mga precinto, certain info, data required. Finally , names of the candidate.
President, XYZ , yung tinatawag na tara. And then the total number in words and in figures.
Habang binabasa yung ballota, theoretically one of the members of the BEI is also filling this up.
Noon nung wala pa yung ibang mga rules na ito, sa blackboard nga lang ginagawa at chalk at
lilitratuhan lang. Then class, when this is finally accomplished, the ER is composed of 7 copies.
The ER are made of special carbonized paper so that an impression on the 1 st sheet makes an
impression on all the other sheets. This is intended to prevent possibility of error if u fill up each
individual copy. The 1st of this is sent to the Municipal Board of Canvassers (MBC). Ang mga ER ,
what happens in the Municipal Board of Canvassers? The MBC will now canvass the ER. Then
class what happens after the MBC or during the canvass, the MBC prepares a statement of votes
and at the same time a Certificate of Canvass. The statement of votes is the tabulation of the
number of votes obtained by each candidate by precinct based on the ER. And so, in the case of
Torres vs COMELEC for example, the SC said that a manifest error in the statement of votes
consisting of a diff figure from that found in the ER can be corrected even directly by order of the
COMELEC en banc without need of going through the commission division because this is a
mere clearly clerical matter of the figures here so that the statement of votes may reflect the real
figures here. Now the statement of votes is attached to the certificate of canvass. These two are
sent, 7 copies then to, sent to the provincial board of canvassers
July 22, 2004
title to receive copy of the ER. Ok dito meron din COMELEC etc. now the provincial
board of canvassers (PBOC). The PBOC will canvass parin. But the canvass is only of the
certificate of canvass hindi na yung ER kasi na nakakadating ang ER sa PBOC. Ang cinacanvass
nalang ang certificate of canvass. Kaya ang PBOC will canvass fewer documents because they
now come from the municipalities and there are fewer municipalities than there are electoral
precincts. Ok, canvass, for the national officials, statement of votes na naman which is the
tabulation of all the COC coming from the municipalities and then a COC. In the case of senator
and president, pag magissue ka ng COC, a copy of a COC is sent to the COMELEC which is
used by the COMELEC in the canvass of senatorial elections. A copy is sent to Congress which
is used by the Congress in the canvass of presidential elections. In the meantime, at this level,
the PBOC will proclaim the winning congressional candidate and the winning provincial
candidates. Here the Municipal Board of Canvassers (MBOC) will proclaim the winning municipal
candidate. Dito wala pa except a requirement under the law that the BOC in each precinct is
supposed to announce the number of votes publicly obtained by the candidates in the precinct.
Yun. That is the process class from the counting the casting ER, COC etc. when you speak of
canvassing then, in the case of canvassing in presidential elections for example. 9t is not only the
canvass in Congress. Even if the Congress is denominated as the canvassing board for
presidential and vice-presidential elections, but the canvass process starts with the canvass at he
municipality, the canvass at the province, and finally the canvass at Congress. In the same
manner that the canvass for the senatorial elections start here MBOC, PBOC and then the
COMELEC, which is the canvassing body or the canvassing board in the senatorial elections.
The canvass for congressmen or officials start here, MBOC and end with the PBOC. Winning
candidates are proclaimed at this level. Insofar as municipal candidates are concerned, ditto lang,
isang canvassing lang of the ER. Alright class, the jurisprudence on the matter of canvass have
always been that canvassing isa ministerial duty of the BOC. And as a rule, you cannot go
outside or beyond the document you are canvassing. At this point, the document you are
canvassing are the ER. At this point the document you are canvassing are the certificates of
canvass coming from the MBOC. Class, when in the Omnibus Election Code, under the chapter
on pre-proclamation contests, you see the words Election Returns, that phrase election return
should be understood to include COC because where the canvass is a the provincial level
already, you do not find an ER anymore and yet, you will still have an opportunity to file a preproclamation contest and since the omnibus election law provisions on pre-proclamation contests
speak only of ER, ditto lang and ER sa municipal hindi na aabot sa provincial and yet because
there is a canvassing being done at the provincial level, there are no ER there anymore, then you
just substitute COC for ER in your pre-proclamation contests provisions. After canvassing
municipal ditto, adding up of the votes obtained and then proclamation of the winning candidate
unless there is a restraining order of the COMELEC. If there is an order restraining the BOC from

184

proclaiming the winning candidates then any proclamation may by at this level, in violation of a
COMELEC order, restraining the board from proclaiming candidates will be considered null and
void. So, if there wiolb e 2 questions in the bar exams, I think your bar examiner will still ask you
on pre-proclamation contests. And so these are the things, let me go through pre-proclamation
contests briefly. A pre-proclamation contest according to the SC and to the records in Congress
on the debate when these provisions were being discussed and asked in the bar exams also.
Sabi ng bar examination question many years ago, what remedy is instituted under the law in
order to prevent the nefarious practice known as grab the proclamation, prolong the protest. The
answer to that is the pre-proclamation contest because it gives you an opportunity to challenge
precisely the proclamation of a candidate without having to file an election protest. Since you
limit the focus of your contest only to those issues provided in the law. It was easy enough to
delay protests. Ako I had only 1 opportunity to listen. I was still then very young but even then
some friends brought me to court dahil daw may hearing ng protests for governor. Isipin nyo
witness testified that from a mountain barrio he brought the ballot box from the municipal building
riding a horse etc. cross examination, abogado ng protestee, Mr witness you said that from the
barrio to the municipal building you rode a horse?, yes sir ,was the horse male or female? What
was the color of the horse? lahat nalang sa horse! isang oras puro sa horse! Isipin mo thats why
I would like you to remember that because precisely the question may be framed in that manner.
The Omnibus Election Code speaks of pre-proclamation contests are referring to any question
relative to the composing and proceeding of the BOC and questions arising out of the
preparation, transmission, custody, canvass of ER and the situations also mentioned in section
233, 234, 235, 236 of the Omnibus Election Code. We have a lot of decision s of the SC to the
effect that the issues that may be raise in the pre-proclamation contests shall be exclusively
found in the law itself. There are 4 paragraphs enumerating the issues that can be raised in the
pre-proclamation contests. Memorize. When you come right down to ti, pag tiningnan mo ng
mabuti ang 4 na grounds, the 4 grounds can be reduced merely into 2, 1 having to do with the
BOC and 2 having to do with the ER. The 1 st issue has to do with the composition or the
proceedings of the BOC. Paragraphs 2,3,4 all relate to ER. Again for this purpose class when you
read ER, you should also remember that that can also include COC. Before we go to the issues,
canvassing process dito sa MBOC, the BEIs ,when they prepare the ER, meron instruction dian
to how to fold the ER. Fold pagkatapos may paper seal, and then after it is folded it is placed in
an envelope provided for that purpose. And then the envelope is sealed by another paper seal
and then signed by the 3 members of the BEI. Each of these copies has its own envelope
provided for the purpose. Kasi may nakaaddress na kung saan pupunta yan e. And each of them
will have to be sealed and signed. And then sent. The BOC will now wait for the arrival of th eER
as the ER arrive, the board may canvas each ER. Pag canvass nyan ,the candidates, the parties
are entitled to a representative to be present at the canvass. The proceedings are recorded from
the time I dont know if some of you saw the congressional canvass. Pagbukas palang ng ballot
box, hindi pa binubuksan sinasabi na we are now opening the padlock. There is also a metal seal
so and so. Isa isa in the same way in much the same manner dito sa MBOC ganun din. We are
now in receipt of the envelope purportedly coming from precinct no. 23. the envelope appears
intact, there is a paper seal no. so and so. We are now breaking the paper seal and pulling from
inside the envelope what purports to be an ER and also duly sealed with paper seal etc. and
then bubuksan na yan sa mesa. The representatives of the candidates are free to look. They are
not free to touch. So, open, babasahin mo titingnan mo thats why you check the signatures
compirmado ng BEI. You check if the data required are found there etc. lahat titngnan mo. During
the canvass, normally pag natalo na, ang local candidates pag talo na sa munisipyo di na
intereasado sa canvass. Napapabayaan na pati yung iba. So if you are a congressional
candidate or a governatorial candidate, you have to provide for your own watchers even at this
level kasi kung aasahan mo lang ang candidato mong mayor at natalo na dahil they have their
own way of , maaga palang may mga tao na sila sa presinto agad agad nakikita na nila na talo na
tayo, tulog na tyo, tapos na. Ok. So yan. Any person who wants the ER being canvassed to be
excluded in the canvass must make a verbal objection to the inclusion of the return simultaneous
with the verbal objection, he files a written objection in the from provided by COMELEC.
Theoretically, once such a form is filed simultaneous with the verbal objection, that return is set
aside muna and is not canvassed. But what really happens is paguusapan muna. Magobject,
what is the graoudn? This is the ground, fraud, duress, etc., etc. anyway, pare wag nalang, object
ka ng object e talo na naman kayo, pinatatagal mo lng ng husto. Ganyan. Pag hindi set aside. In
24 hours, whoever objects is now mandated to present evidence supporting his objection. During
the same period of 24 hours, the other side who will naturally oppose the objection will also state
his defense as it were and if he has any other evidence, present that there. After which the BOC
will rule. Sasabihin nila we overrule the objection, we will include in the canvass the questioned
ER. This decision is to be made in writing also even as it is also recorded because all the
proceedings there are also recorded and then there should be a written copy of the BOC after
which the objector must then make a verbal manifestation of his intention to appeal. Once that is
made, again, set aside nanaman yan and the Board proceeds to canvass all unquestioned
returns. After all the unquestioned returns are canvassed, makikita pa kung material pa ito. Kung
ang inobjectan ay 1 o 2 ER lang at malaki ang lamang ng candidato, then magdedecide ang

185

Board, since that return only covers 120 votes and it appears that the lead by the winning
candidate over the losing candidate is 2000 votes, so we will proclaim the winning candidate. If
not, if the objected returns cover a number of votes material to and which could affect the results
of the election, then no proclamation shall be made. Within 48 hours, the objector must file a
written notice of appeal and within 5 days thereafeter, file a petition with the COMELEC. That
petition is your pre-proclamaiton contest. We have more than ample jurisprudence to the effect
that these steps must be followed to the letter. Any failure to follow any 1 of the steps provided by
the law is fatal to the pre-proclamation contest. Fatal. Ok, what are the issues? Before we look at
the issues, look at section 15 of RA 7166, which provides that there shall be no pre-proclamation
contest in the election of national officials. In the election of president, vice-president, senator and
members of the house of representatives, there shall be no pre-proclamation contests based on
the returns or the COC. The only pre-proclamation contest that can be raised at least insofar as
the senators and members of the house are concerned, would be the illegal composition and
illegal proceedings of the BOC. So, no pre-proclamation based on paragraphs 2, 3, and 4, except
that during the canvass, a petition may be validly filed to correct manifest errors, either in the ER
or the COC here. In the case of Frank Chavez vs. COMELEC, the SC said that manifest errors
referred to in this law are errors that are on the face of the ER or of the face of the COC, one that
is clear to the eye and understandable from the very face of the return or the COC. So we move
on to the 4 issues which may be raised in a pre-proclamation contest. 1 st, illegal composition or
illegal proceedings of the BOC. So please, just so you will be at ease when you go to La Salle,
memorize the composition, the different BOC, provincial, city, municipal, because in the case of
senatorial, it is merely the COMELEC and in the case of presidential, it is Congress. In the
province for example, it is the provincial election officer, the election officer, then the provincial
fiscal, then the division superintendent of schools. And the city, it is the city election officer, the
city fiscal, and the city superintendent of schools. In the municipality, it is the election officer
again as chairman, the municipal treasurer, and the highest district superviser of the department
of education who sit as members. So, yun. Meron lang dun sa illegal proceedings because we
have a recent decision na imes na 3 ang padlock dun sa ballot box na dinala, 2 lang. And so
sinasabi illegal proceedings. The SC said no. this is a minor formality and the fact that there is a
number of padlocks does not really go into the integrity of the ER inside the ballot box or into the
integrity of the ballots inside the ballot box. So yun. The 2 nd paragraph speaks of when the ER is
incomplete or contains material defects in the same returns and in other authentic copies thereof
or as envisioned in section 233,234,235 and 236. 1 st an incomplete return, Sanchez vs.
COMELEC. The SC said that an ER is incomplete if it does not contain the name of any
candidate or if even if all the names of the candidates are contained there, it does not contain any
indication how many votes were obtained by the candidates. But where all the candidates are
named and there is opposite the name of the candidate the corresponding number of votes
obtained by each of them, then that is a complete return. In Sanchez, ang problema ni Sanchez
kasi at the stage of the BEI when they were counting the votes, pag nakita ng Bei na Sanchez
lang ang nakalagay, that was considered a stray vote. Why? Because there was another
candidate by the name of Sanchez. That other candidate was declared to be a nuisance
candidate by the COMELEC before the election and the decision became final before the
election. But the COMEELC failed to inform all the BEIs that there was only 1 candidate
Sanchez remaining. So sabi ni Sanchez, yun ER na ginawa rito, incomplete yan dahil kulang ang
boto ko nyan dahil ang dami ng boto ng Sanchez na hindi naman inilagay sa ER. Sabi ng SC no.
That is not an incomplete return. That is still a complete return. That is a complete return because
here at the level of the canvass we cannot go beyond what is on the face of the return. You
should have questioned that at the level of the BEI. A senatorial candidate cannot possibly afford
to have a watcher in each precinct. So yun. Kaya inadvice nalang si Augusto Sanchez,
magprotesta ka nalang. E ayaw na nya. Contains material defects as provided in 233,234,235.
alright, what does 233 provide? If the return is delayed in arriving or is lost or destroyed so hindi
nakarataing yung copy for the MBOC. The MBOC may use other authentic copies including the
copy inside the ballot box if necessary kung walang makitang iba. That is 233. 234, if there is
some requisite in form or data lacking in your return such as blanko ditto, yung total no. of
registered voters in the precinct, and the total no of voters who voted , the BOC may call, shall in
fact call the BEI and the BEI shall complete, fill in this data or requisites that are lacking. We are
talking of requisites in form or data not to correct or to fill up blanks in the number of votes. We
are talking here only of lacking, missing requisites in form or data. Kung hindi magawa dahil hindi
malaman na kung ilang voters actually who cast their votes, because there may have been
ballots that were considered void etc, then the law says that the COEMELC may order the
opening of the ballot box itself, count the ballots, so that all those data may be filled up, all those
required data may be filled up. 235 speaks of a situation where there are very clear indication of
tampering, alteration, falsification, on this. What is the BOC going to do? The BOC will now ask
other copies, look at other copies. Aba yung other copies ganun din. Then the BOC will ask the
COMEELC to order the opening of the ballot box and then the votes will be counted once it is
determined that the integrity of the ballot box has been duly preserved. And then finally 236,
discrepancies. Pagbukas ng ER, sinabi ng representative ng partido ng isa, aba lintik iba ang
inyong return, dito iba ang aming copya, in our return iba. Chances are, the MBOC may ask

186

another copy from the judge perhaps. O iba rin, 3 klase iba iba. Or again in the same return there
are discrepancies in words and figures hindi malaman ng MBOC kung ano talga ang tunay, then
again ask for authority form the COMELEC to open the ballot box and count the votes again. And
so class, note, that the situation contemplated in section 234, 235 and 236 are situations when
the BOC may look beyond the ER. Because in these instances they may go beyond the return
and into the ballot box. So despite the fact that the general concept of the canvass is that the
BOC performs only ministerial functions and cannot go beyond or outside or behind the ER or the
COC, this situation is contemplated in 234,235 and 236 are situation which will allow the board to
go behind and look into the ballots themselves. The 3 rd paragraph speaks of if the ER have been
prepared under duress, force, intimidation, or when the ER is obviously manufactured.
manufactured. Anong mangayari dito pagbukas ng ER, sabi ng representative, ah yan ang galing
sa presinto sa bundok. Tinutukan and mga BEI diyan sa bundok. Kaya yan ang hindi tunay na
nakalagay. So he objects on the ground that this was prepared under duress. He has to prove
this within 24 hours and what proof does he normally have? If he presents only the affidavits of
the watchers, as a rule the watchers affidavits are not adequate because they are self-serving.
And so there has to be ample evidence to prove this because if you have ample evidence to
prove this, the BOC can ask the BEI members to go there and testify of their own knowledge if
they were in fact placed under duress. yung last phrase dian , obviously manufactured returns,
we have the case of Lagumbay vs. COMELEC and Cesar Climaco. It was in this case in
Lagumbay where the SC handed down the doctrine known as the doctrine of statistical
improbabilities. Because the ER subject of the case were statistically improbable, the SC said
they are prima facie obviously manufacture. Why did the SC say statistically improbable? This
was explained later in a decision by a SC pero ito, more than 50 precincts coming from
Mindanao, pare pareho and style, pagbukas ng returns, total no. of registered voters, 180, total
no. of voters who voted 180, senators yung mga liberal senators 180 lahat, yung ibang candidato
0. Ok next precinct, total no. of registered voters, 230, total no. of voters who voted 230, senators
and liberal candidates 230, 0 lahat. Pare pareho ganyan more than 50 precincts. The SC said
these are not statistically probable and so these ER are manufactured prima-facie finding that
they are obviously manufactured. And so the SC did not consider the results and SC said that
Lagumbay may be proclaimed winning senatorial candidate over Cesar Climaco that time, the no.
8 winning candidate. Sabi ng SC why statistically improbable? Prima facie daw, obviously
manufactured dahil statistically improbable. Of course it is possible that all the voters of several
precincts turned out to vote and all of them voted only for the liberal party senators. It is possible
but it is not probable. Ang comparison ng SC, it is possible to winn the sweepstakes draw 5 times
in a row, but it is not probable. What we are saying sabi ng SC this is prima facie obviously
manufactured. Cesar Climaco can go to the electoral tribunal and present evidence that these
ER are obviously not manufactured but we rule they are prima facie obviously manufactured. So
yun. Now class, the ruling in Lagumbay vs. COMELEC in later cases had to be strictly
interpreted. And so for example, during th elections in Mindanao, 1800 voters, all 1800 voters,
GMA, 1800. Fernando Poe 0, Lacson 0, Roco 0, Villanuava 0. Vice president, Loren Legarda
1800, Noli de Castro 0, Aquino 0, Pajo 0. tingnan mo yun COMELEC copy on the senators, and
senators 7 na KNP 1800, 5 na K4 1800 si Barbers 1700. all the others got 0. do you apply the
ruling in Lagumbay to something like this? The SC answered in the negative. Because una,
Lagumbay, puro liberal lang ang binoto. Dito halo. Pangalawa, sa Lagumbay, all voters voted for
the 8th liberal party senatorial candidates, dito 1700 lang, kulang ng 100 yung k Barbers, so you
cannot apply the ruling in Lagumbay, you do not apply the doctrine of statistical improbability.
Finally, no 4 paragraph 4 when fake or fraudulent returns are used and of course they affect the
results of the election. I have participated in a lot of elections already and there are indeed some
fake Ers for that matter fake certificates of canvass also.
July 23, 2004
We continue from where we left off yesterday. We were talking last about election
contests and we spoke of the jurisdiction the tribunals having exclusive original jurisdiction and
then the matter of appeal, we have finished that. And then we go to the 2 election contests. The
contests may either be a an election or a petition for quo warranto. Consider the following
requisites of an election protests. 1st, the protest must be files by a bona fide candidate, that
means one who has filed a certificate of candidacy and has been voted for in the election subject
of the election protest. Accordingly, a candidate for vice-governor for example cannot file an
election protest for the position of governor. It is the candidate for the position who must file an
election protest. 2nd, the grounds for the protests may be any one or a combination of fraud,
terrorism, irregularity or any anomaly, any illegal act committed before, during or after the
elections. If one has filed an pre-proclamation contest and has raised precisely the issues
regarding the validity, the inclusion of certain returns of the certificate of canvass, and the preproclamation contest has been decided against the person who filed the pre-proclamation
contest, can that candidate in an election protest raise some of the same things that he raised in
the pre-proclamation contest, since the election contest may be based on fraud in the
preparation, transmission or custody of ER or COC? The answer is yes, there is no prohibition.

187

You see, the pre-proclamation contest is supposed to be a summary proceeding, although of

course there is a need for a hearing. Accordingly, the decision in the pre-proclamation contest
will not prevent the candidate from raising the very same issues in an election protest because
during the election protests, the issues raised will be fully deliberated upon not just a summary
proceeding as in a pre-proclamation contest. On the other hand, where an election protest has
already been filed, then the general rule is that a pre-proclamation contest may no longer be
instituted. Or if an election contest or protest has been filed, any pending pre-proclamation
contest is deemed abandoned, although the period for filing an election protest is deemed
interrupted during the pendency of the pre-proclamation contest. However, the rule that says that
the filing of an election protest will result in a bar against a pre-proclamation controversy, or result
in an abandonment of a pre-proclamation contest, admits of 5 exceptions. A pre-proclamation
contest may still be raised even if an election protest has already been filed in any one of 5
instances. 1st if the BOC was illegally constituted, which is really also a ground for a preproclamation contest. 2nd, if quo warranto is not the proper remedy. 3 rd, if what was filed ostensibly
as a petition for quo warranto or an election contest, protest, was actually a petition to annul the
proclamation which will partake of the character of a pre-proclamation contest. 4 th, when there is
an express reservation made upon the filing of an election protest, there is an express reservation
to file a pre-proclamation contest, or that the filing is made without prejudice to the filing of a preproclamation contest, or where the filing of the pre-proclamation contest is made ad gautelam,
and finally, if the proclamation is null and void. the grounds include fraud, terrorism, any
irregularity of illegal act committed before, during or after the elections. Accordingly, the protest
can already cite as grounds the violations if violation had been committed against, well the
violations enumerated in section 68 which may be a ground for disqualification of the candidate
before the election or if after the election panalo na, ididisqualify padin on those grounds if those
grounds are proven and these may be used in the election protest. Yung mga vote buying,
terrorism, over spending, lahat yan nagover spend. Then of course the violation ng rules, the
laws, provisions on contribution, expenses, propaganda, etc. and any of the acts punished under
section 261 which are the nominated election offenses. These may be your grounds also for the
lection protest. Then of course the petition has to be filed within 10 days from proclamation. The
10-day period provided by the law is not mandatory in the sense that for example if you are filing
a protest in the House of Representative Electoral Tribunal (HRET), this 10-day period does not
control. What controls now would be the rules adopted by the HRET or kung magproprotesta si
FPJ, then the rules of the presidential electoral tribunal (PET) will prevail over the general
provisions of the Omnibus Election Code on the 10-day period. So mas mahaba haba naman
ang period allowed by the HRET or the PET. In the case of an election protest, 1 nalang, does the
death of the protestant abate the election protest? The SC said no. in fact because of the public
policy involved in connection with the election of public officers, the death of the protestant will not
abate the election protests. Accordingly, what happens, there were only 2 candidates for mayor,
for example, and the mayor, the defeated candidate files a protest, he dies during the pendency
of the protest. If the protest if eventually resolved against the person who was proclaimed and
who had occupied the office, then it will result in the proclamation of the person who died
because he is dead already, he cannot be proclaimed and he cannot assume office, then the vice
mayor will succeed pursuant to the rules on succession provided for by the local government
code. The same thing happens in the case of disqualification. Disqualified, so you do not
proclaim the candidate who obtains the highest number of votes. And so what happens is we
apply the rules on succession and let the vice mayor become mayor by virtue of legal succession.
Then the matter of a petition for warranto. A petition for quo warranto may be filed by any
registered voter of the constituency where the person being challenged has been elected. Any
registered voter, so wala tayong problema dian. In fact in the case of Sampayan vs. Daza for
example, Sampayan was a registered voter of the first district of Northern Samar when he went
directly the SC seeking the disqualification of the then Congressman Raul Daza. 2 nd, the grounds
may either be ineligibility or disloyalty to the republic. Ineligibility, that means your candidate being
challenged does not possess all of the qualifications prescribed by the constitution or by law for
the elective position. And then finally of course the 10-day period within which it may be filed.
Again, what happens when a candidate who has been proclaimed and has assumed office is
declared disqualified pursuant to a petition for quo warranto. What happens is the public officer
having been disqualified will have to leave office and the candidate who obtained the 2 nd highest
number of votes is not proclaimed, he is not proclaimed. It will be a matter of succession again to
the office that is vacated by the disqualification by the public officer. At this point perhaps, when
we were talking about the law on public offers, we spoke of a challenge against an appointment.
We said that because of the discretion vested in the appointive authority, the issue of appointment
is ordinarily a political question. Any challenge to the validity to the appointment may be made
only in a petition for quo warranto. A petition for quo warranto which may be filed by the solicitor
general if it is the government itself is of the opinion that this public officer is a usurper and has no
title to the public office. Or it may be filed by any person who claims that he has better right or title
to the public office. Ok, so distinguish a petition for quo warranto with respect to an elective office
and a petition for quo warranto with respect to an appointive office. In a petition for a quo
warranto with respect to an elective office, the petition may be filed by any registered voter, while

188

a petition for quo warranto relative to an appointive office, it has to be filed by the government or
by anyone who claims to have better title to the office or better claim to the public office. The 2 nd
distinction lies in the effect of a quo warranto case. Where the incumbent is declared disqualified
in a quo warranto proceeding, in a proceeding involving an appointive office, then the court
awards the office to the protestant, to the person who has challenged the public officer because
then the court is convinced that the challenger ahs better right to the public office on the basis of
a better title, better claim to the office, while in the case of an elective office, the disqualification of
the incumbent will not result in the proclamation of the candidate who obtained the 2 nd highest
number of votes. We go by the rule on succession. Several times in the last 3 years there were
attempts at least In the committee on suffrage and electoral reforms to come up with a bill that
would provide that the defeated candidate may be proclaimed even in a quo warranto case.
Unfortunately those who were pushing for this never succeeded in convincing the members of the
committee that they should be placed in law. Then class, balik tayo sa principles ng election
protests, even in a petition for quo warranto kasi yung mga filing of docket fees, filing of appeal
fees, yung mga certification of non-forum shopping, etc, while these are required and the
COMELEC for example or the appropriate tribunal may dismiss an action, either a protest or a
petition for or quo warranto for failure to pay docket fees or filing fees, please remember na paiba
iba ang SC ditto, meron sinasabi na what word is used by the law, the law uses the word may,
therefore the COMELEC may choose to entertain the protest even when there is no payment of
docket fees or may choose to entertain the appeal. A 2003 decision although theoretically not part
of your coverage says the COMELEC has the authority to suspend its own rules because
precisely of the grant of full discretionary authority to promulgate its own rules, subject only to the
disapproval of the SC, then the COMELEC may during its own proceedings decided to suspend
its own rules on payment of fees, suspend its rules on certification on non-forum shopping and
suspend its rules on any procedural matter which is basically within the authority of the
COMELEC to do or for that matter within the authority of the HRET for example or of the PET or
of the Senate Electoral Tribunal (SET). Then 2 pa, 1 st the matter of execution pending appeal, I
just want to reiterate that, execution pending appeal. The court , the RTC or MTC may validly
issue a writ of execution pending appeal provided that the issuance of a writ of execution pending
appeal is made before the expiration of the period for appeal. 2 nd, that there is a special, valid,
compelling reason to issue the wirt of execution pending appeal, and the SC has said that this
compelling reason may be based on public policy involved, the public interest involved or the will
of the electorate, it could be based on the the shortness of the remaining portion of the return or it
could be based on the fact that the election contest has been protracted, the length of time of
time during which the election contest has been pending. Finally in the matter on the award of
damages. While of course ordinarily pag nagprotesta ka at nanalo ka na hindi ka na nagiisip ng
mga damages maliban kung 2 araw nalang ang naiiwan sa iyong term of office. In the case of
Congressman Carino, even if he had only a few days left, Congressman Carino is a multimillionare, maybe he is a billionaire already, so he doesnt care sa mga damages. He just wanted
to seat in the HR. So before he sat in the HR, of course before he took his oath naigawa na sha
ng pangalan nya at brass para ilagay sa mesa. Inilagay lang dun sa mesa tapos tinanggal na ulit
para ibigay sa kanya para eto souvenir mo ito, ganun lang ang nangyari, pero well he was
happy with all this, at least he was smiling, that means that he was happy. But theoretically, the
court or tribunal can award damages when there is a showing that a person, for example the
person who was proclaimed and who has assumed office had committed fraud, bad faith, malice
in getting proclaimed in his assumption of office, it is possible although it is not usual that the
court awards damages. But it can be done. In the case of Malaluan, when it was an error on the
part of the SC to award damages because damages in the form of the return, the obligation to
refund what was received as well as the obligation to give this money to the winning candidate,
the SC said there is no such obligation because the candidate who lost in the electoral protest
was proclaimed and was in fact a de facto public officer. Then we move on finally to election
offense. Section 261 of the Omnibus Election Code enumerates the offenses. Siguro you just go
through that, read maski hindi nyo na imemorize. Some of you who are not contented in
memorizing, so ahead if you want. There are those of you who have photographic memory and
by simply looking at it e kuha mo na kagad. E ok na yun. You can photograph the whole civil code
for example. Etong vote buying. An old case said that even the giving of cigarettes violates
already the vote buying prohibition in section 261 becasu that is a thing of value that is given
ostensibly in consideration of the vote. Ewan ko. Sa ngayon wala na yun. But there is a provision
in RA 6646, that grants the COMELEC the power to grant immunity from criminal prosecution
persons who may have received money from candidates and who are willing to testify. We have a
recent decision early 2003 so kasali pa to, the case of COMELEC vs. Stagle. A complaint was
filed and then the COMELEC filed the necessary criminal information against the candidate on
the basis of sworn statement of 40 voters who alleged that they were paid so that they could vote
for the candidate. So naifile yan. The fiscal filed also a criminal information against the 40 voters
who executed the affidavits because they also violated because the law speaks not only of the
giver but also of the receiver. There are two persons criminally liable here. The COMELEC asked
the court to dismiss the criminal cases against the receivers because they were being used by
the COMELEC in the prosecution of the candidate. The judge refused to dismiss, denied the

189

motion to dismiss. Whereupon the COMELEC went up to the SC. The SC that is the reason for
the law. The reason is to encourage those who may have received valuable consideration for the
vote to come out and testify against the candidate who gave. And so yun. The SC in effect upheld
the contention of the COMELEC and thus ordered the dismissal of the cases against those who
executed their affidavit claiming that they were paid. I find this a little bit dangerous. What about a
criminal action filed against the candidates whose voters demanded that they be paid? And then
only for them to turn around later and say they are willing to be state witnesses against the
candidate because the law is more focused against the candidate than against the voter. Mahirap
ng konti yun. Alright so look at all of these, basahin nyo tingnan nyo nalang because after you
have read these ones I am sure kung ilagay sa problem, you will immediately recognize that this
is an election offense. Procedure for this, COMELEC has the authority under the constitution to
investigate that means conduct preliminary investigation although the COMELEC can delegate
the power to the prosecution service of the Department of Justice. COMELEC decides whether to
file a criminal information or not. COMELEC prosecutes when it finds it appropriate to prosecute.
However the SC said in one case, that when a criminal complaint is filed with the COMELEC for
alleged violation of an election law, it is not the duty kasi sila ang magprepreliminary investigation,
it is not the duty of the COMELEC to look for evidence. It is the duty of course of the complainant
to present evidence before the COMELEC in the preliminary investigation. Then jurisdiction over
all election cases, RTC. Then the statutory principle that these election cases should be given
priority, preference in favor of election cases. The only other case that enjoys better preference is
a petition for habeas corpus. So election cases should be resolved as soon as possible. Finally
the prescription period for election offenses is 5 years from the date of commission. And the SC
that election offenses are generally mala prohibita, and so one does not have to prove mens rea
or criminal intent. That ends our law on election. We move on to the next and final subject, the
subject on Public Corporations. This will include of course our laws on local governments (LG).
First principle on LG found in section 25 of article 2 and section 2of article 10, the doctrine of local
autonomy. So Local Government Units (LGU) under the constitution are to be granted local
autonomy. Local autonomy or autonomy of LGUs according to the SC in the case of Basco vs.
Pagcor is simply decentralization. In the case of Limbonas vs. Mangelin which was decided much
earlier than Basco, the SC spoke of decentralization in terms of decentralization of power and
decentralization of administration. Decentralization of power violates the constitution because it
would mean the abdication of government of governmental powers in favor of LGUs. However,
decentralization of administration is merely designed ti give administrative authority of LGUs in
order to broaden the base of local administration. This is what decentralization means. I would
like to call you attention to the case of Lina vs. Pano, I think this was decided late 2001 because
Lina became secretary of LG, of course he was also governor of Laguna before that. Lina vs.
Pano speaks of the extent of local autonomy. But the SC said, control over LG is still vested in
Congress. So Congress retains control over LG. The power to create includes the power to
destroy. Since it is congress the power to create LGs then it also carries with it the power to
destroy. What did the SC say here? The SC said LGU even if granted autonomy under the
Constitution should respect the fact they are merely creatures of the Congress and that the
Congress has the power of control over them. Ang sabi ng SC, this grant of autonomy to LGUs
does not remove it from this power that Congress has because ours is still a unitary form of
government. So in this case the SC recognized that we have a unitary form of government and
that no matter how we espouse autonomy of LGUs, nonetheless they are still under the control of
the national government. Accordingly, in the case of Basco vs. Pagcor, an attempt was made by
the City of Manila to tax Pagcor on the casinos operated in the city of Manila invoking section 5 of
article 10 of the Philippine Constitution which is a direct vesture of the pwer to tax the LGUs
under the constitution itself. You have mastered this of course in taxation lt eh SC said no. even
as there is constitutional grant of the power to tax, it must be recognized that the taxing authority
is vested in Congress and inasmuch as the Congress has granted Pagcor tax exemption, under
its franchise, under its charter, then a LGU cannot tax Pagcor without violation a statutory grant of
tax exemption. It would then be a violation of the law which Congress passed when it created
Pagcor. We go to general priniciples, yung mga definition ng corporation e master na master nyo
yan sa private corporation, yun mga classifications. The classification of corporations into public
and private. And then meron pang quasi-public which is really a private corporation performing
public services or supplying public wants. Ang public at private, the main distinction class is a
public corporation is a corporation that the state has granted powers to and which is in fact used
as an instrument of the state in the governance of a particular territory and the inhabitants of the
territory. So ang criterion lang talga na if you help the state, you are granted powers to help the
state in the governance of the state, in the inhabitants of the state, otherwise private. This does
not go into ownership. The classification of public and private is not based on ownership class
because even corporations that are government owned are not public corporations in the sense
that these corporations that may be organized by the government, funded by government do not
actually perform governmental powers, powers related to the governance of the state and the
inhabitants therein. And then yung classification into municipal corporations. Anyway ang
municipal corporations natin are our LGUs, section 1, well municipal corporation ciguro hindi
nalang natin kailangan tingan. Anyway sige nalang dahil narito narin lang tayo.

190

So the elements of a municipal corporation, legal creation or incorporation, corporate

name, then the inhabitants and the territory. Parang little state except in case of the name. Under
the Local Government Code, the sangguniang panlalawigan can upon consultation with the
Philippine Historical Society institute, recommend or change the name of a LGU provided
however that they should be subject to approval in a plebiscite to be held in the areas directly
affected by such a change. What are the municipal corporations in the Philippines? The
constitution provides, that the territorial and political subdivisions of the Philippines are provinces,
cities, municipalities and barangays. The constitution also provides that there shall also be
autonomous regions in Mindanao and the autonomous region in the Cordilleras. And then section
11 of article 10 provides that the Congress may create a special metropolitan political
subdivisions which would be in the nature of a municipal corporation likewise. The case of Abas
vs. COMELEC on the constitutionality of RA 6734 which is the organic act establishing the
Autonomous region or Muslim Mindanao (ARMM), the SC said this is constitutional. This was
passed according to the constitutional mandate in article 10 for Congress to pass the organic law
for establishment of the ARMM. And then of course the SC also upheld the constitutionality of an
executive order issued by President Cory Aquino establishing the Cordillera Administrative
Region ( CAR). Insofar as the law passed by Congress creating or establishing the CAR, this
organic law was submitted to a plebiscite in the Cordilleras and it seems that one city and various
provinces in the cordilleras where the plebiscite was held, it was only in Ifugao that voted yes, the
other provinces even in the city of Baguio voted no. accordingly, following the decision in the SC
in the Abas case, the COMELEC on the basis of the result of the plebiscite declared the existence
of a CAR in the entire province of Ifugao. And so this was questioned in the case of Ordilla vs.
COMELEC, the SC said, a region cannot be composed of only 1 province., we cannot establish
the CAR with only one province, the province of Ifugao because this are contradicting terms.
There is a built in contradiction when you say there is a region, but this entire region is consisting
of only 1 province. Accordingly the plebiscite for the approval of the organic act establishing the
CAR was declared to have failed in obtaining approval for the CAR. The law creating the CAR,
the 1st, was patterned after the law that established ARMM. Under the law, to constitute a part of
the autonomour region, the province or the city must vote in favor of the so that a province or a
city that does not vote in favor of the law will not be included in the autonomous region. Kaya ang
nangyari sa Cordillera and even in the ARMM, tingnan nyo na meron province na hindi
nakasama, Lanao Sur I think is not included in the ARMM and yet Marawi City is included, kaya
medyo ano e. anyway there had been an opportunity and there will continue to be opportunities to
propose amendments to the organic act, although again any amendment to this organic act will
have to be submitted in a plebiscite in the ARMM. That is the character of the organic act as
prescribed by the Constitution. Ok, so look at one very important concept in the law on public
corporation, the dual character of a municipal corporation. A municipal corporation, province, city,
barangay, the autonomous regions, these municipal corporations are bodies politic and corporate
endowed with powers which are to be performed in conformity with law. Yun ang kanilang
sinasabi. Therefore, flowing from this definition, from this characterization of a municipal
corporation, there are 2 personalities as it were of a LGU. It is both an agent of the state to assist
the state in the governance of the territory, of the inhabitants in the territory and it is also an agent
of the community or an agent of the inhabitants for the administration of local affairs. Flowing from
this dual character of a LGU of a municipal corporations, there are 2 functions of a LGU.
Governmental or public functions when it acts as an agent of the state to assist the state in the
governance of the territory and the inhabitants and proprietary or corporate functions, when it acts
as an agent of the inhabitants in the administration of local affairs. Even properties that are
acquired by the LGU must follow this dual character and so properties may also be classified into
governmental or public property received and used by the LGU as an agent of the state and for
public purposes and patrimonial property which may be acquired by the state through its private
or proprietary character and which may be disposed of by the state just like a disposition of a
private property. Remember this dual character all throughout our discussions on the powers, the
liabilities and everything about LGU class. Then the matter of creation of LGUs. LGUs are
created by law, except barangays which may be created directly by law or by an ordinance of the
sangguniang panlalawigan or the sangguniang panglunsod as the case may be. The constitution
provides however that no LGU may be created, divided, merged, abolished, or its boundaries
substantially altered except in accordance with the criteria prescribed by the LGC and further
subject to the plebiscite requirement mandated by the constitution. 1 st the matter of the plebiscite
requirement. Any law creating, dividing, merging, abolishing, or substantially changing or altering
the boundaries of a LGU must be approved by a majority of the votes cast in a plebiscite held in
the political unit or political units directly affected. Just 2 things. 1 st , Tan vs. COMELEC which is
the correct interpretation of the plebiscite requirement. Where for example, as in this case, a new
province was sought , Negros Oriental, Negros Occidental. These are the existing provinces. A
law was passed during the Marcos years. To create the province of Negros Del Norte, part of
Negros Occidental was to be separated from Negros Occidental to form Negros Del Norte, and
under the law a plebiscite was to be held only in the area that was to constitute Negros Del Norte
because prior to this in the case of Paredes vs. COMELEC, the SC made a declaration that the

191

plebiscite requirement then under the constitution was duly satisfied even in the creation of a
vbarangay and the plebiscite was held only in the area of the barangay to be created kaya
because of that decision of the SC in the case of Paredes, the law passed for the creation of
Negros Del Norte provided for the same thing. The SC rejected this and declared it
unconstitutional and said, the constitution speaks of in the political unit directly affected. In this
case the political unit directly affected by the creation of Negros Del Norte is the entire Negros
Occidental. Accordingly, the whole of Negros Occidental should participate in the plebiscite for the
approval of the law creating Negros Del Norte. Inasmuch as the law spoke of a plebiscite only in
the area which will constitute Negros Del Norte, then the law is unconstitutional. Sinabi ng
Solgen. Edi ok kung unconstitutional yan, sabihin nyo nlng SC that there should be a plebiscite in
the entire Negros Occidental so we can still go ahead and see if we can still create Negros Del
Norte. Sabi ng SC, no. We cannot do that. When the plebiscite itself provided in the law is
unconstitutional, the SC cannot say that another plebiscite should be held for the entire other
mother entire unit. What we are saying mainly is that that is unconstitutional because the
constitution should be interpreted to mean that the entire mother unit should be made to vote in
the entire plebiscite. In the case of Grino vs. COMLEC, this had to do with Guimaras. Remember
class we were talking about Montejo and what happened to Biliran. Guimaras was before the
effectivity of the LGC, Guimaras was a sub-province just like Biliran , just like Siquijor, just like
Aurora. As we said, when the LGU took effect, the LGU provided for the abolition of all subprovinces. However in the transitory provisions, sub-provinces were allowed to become fullfledged provinces through a plebiscite. If the majority of the votes cast in the sub-province are in
favor of the province, ito sub-province lang. If the majority of the votes cast in the sub-province
are in favor of provincehood, then the sub-province will become a full-fledged province. If not
then the sub-province, the municipalities in the sub-province will return to the mother unit, to the
mother province. Wala ng sub-province. So, just like in the case of Biliran, lahat ng sub-provinces
nagkaroon ng in May of 1992, nagkaroon ng plebesito. In Guimaras, ok. It was also the date of
the election. The petition said the ballot used in that election where there was also a question on
whether or not you are in favor of Guimaras becoming a full-fledged province, the ballot was
wrong because sabi nila, for those who voted no to Guimaras becoming a province, they should
be allowed to vote for Governor and for the provincial officials of Iloilo, because if Guimaras
ceases to be a sub-province and does not become a full-fledged province, then the voters of
Guimaras will become voters of Iloilo and therefore should be given an opportunity to vote for the
provincial officials of the province of Iloilo. The SC agreed with the petition pero the plebiscite
had already been finished and the result of the plebiscite were already clear that the majority of
the people in Guimaras wanted Guimaras to become an independent province and so the
petition was dismissed for having become moot and academic. Then of course class, the criteria
prescribed under the LGC. Basically the LGC criteria speaks of verifiable indicators for viability
and projected capacity to provide or to render services. And there are 3 such indicators. 1 st,
income, 2nd population, and 3rd, land area. A funny thing happened in 2001 on this. Originally, the
income requirement for the creation of LGUs under the LGC spoke of income requirements
based on 1991 constant prices. 1991 prices for a municipality, barangay walang minimum
required income. Municipality 2.5M, City 20M, highly urbanized city 50 M, and province, 20 M. So
ok lang. In decisions of the SC , these income requirements may include the internal revenue
allotment (IRA) received by the municipality or city etc. so we are not talking only of income but
we are talking of income plus internal revenue allotment. Yun because even in Alvarez vs.
Guingona the SC said that IRA should be included in the computation of your income. Ito,
masama ang loob ko nito. Madami kaming masama ang loob nito. In 2001 towards the end of the
sessions already of the 11th Congress, somehow a senator succeeded in securing approval by the
Senate and by the House of Representatives of a bill that would increase the requirement for
cities. Ginawang 100M. Nakakatuwa ito dahil hindi ginalaw ang highly urbanized cities at hindi
ginalaw ang province. Yung city lang. And this was a bill that lapsed into law. And so, RA 9009.
Not only that, the law says now that the 100M income requirement should not include IRA. Patay
na. This was really intended to discourage the creation or the conversion of a number of
municipalities into cities because in 2001, a number of municipalities succeeded in becoming
cities. For example, the city of Maasim in Southern Leyte. Anyway class, yun na yun. Even if RA
9009 does not change a highly urbanized city, we have to assume that the minimum requirement
for a highly urbanized city should be at least 100M also because it would be absurd to require a
ordinary component city to have 100M income and a highly urbanized city only 50M. So class,
that is why this will not be asked in the bar exam no. Why are we talking about it anyway it will not
be asked. So yan. Gusto ko lang istorya sa inyo Ok, then the other verifiable indicator is
population. Under the LGC, each barangay should have a minimum population of 2000
inhabitants, except in case of a barangay in metropolitan manila which should have at elast 5000
inhabitants. A municipality should have at least 25,000 inhabitants. A city 150,000, a highly
urbanized city 200,000, and a province 250,000. barangay 2000 except metro manila which
should have at least 5000 minimum. Then class, land area, hindi ito territory. Land area because
in the computation of land area you do not add, you do not include waters. If a municipality
consists of 2 islands, or if a city consists of 2 islands. You measure only the land area of the
islands, you do not include the waters dividing the islands. And so, municipalities 50 sq km, cities

192

100 sq km , provinces 2000 sq km. Class incidentally in RA 9009, the requirement of a 100M
income would now be based on the the year 2000 constant prices. Alright. What else would
serve as limitations or requisites for creation of LGUs? Limitations should also be imposed by
appropriate provisions of the Constitution. For example class, when a new municipality is
created out of an existing municipality, the new municipality B, there may be in the territory that
will be part of the municipality, there may be properties owned by A in its proprietary capacity.
Accordingly, A should be paid the value of those properties held in its proprietary capacity. If for
example, it so happens that there is a public market owned by A which is now the territory that
will become municipality B, the law creating B should make appropriate provisions for payment of
the value of the market. Otherwise the law creating B would deprive A of property without due
process of law. So, things like these have to be considered in the creation of LGUs. Of course,
the merging of 2 LGUs, again the same conditions. Pag dividing each of the component,
municipalities that will result in the dividing of a single unit into 2, each of this 2 LGU must fulfill
the basic requisites. In the matter of dissolution, there is an obligatory dissolution of a LGU when
the LGU no longer meets the standards prescribed in the LGC and of course there does not
seem to be any chance for it to be able to meet the standards. Of course yung changing
substantially the boundaries of the LGUs would also have to consider these basic requisites
including the constitutional provisions in the deprivation of property without due process of law.
The matter of de facto municipal corporations. A de facto municipal corporation requisites, there
must be a valid law authorizing incorporation, an attempt in good faith to incorporate under such a
valid law, colorable compliance with the law, and assumption of corporate powers. Now class,
perhaps this is best seen in the cases involving the creation of certain municipalities. Under the
old Revised Administrative Code, section 68 authorized the president of the Philippines to create
municipality be virtue of an executive order and the president for a long time had been issuing
such executive orders until the time when the president was Diosdado Macapagal, and he also
issued executive orders creating municipalities. One such municipality was challenged by the
vice-president of Diosdado Macapagal. The vice-president was Emmanuel Pelaez. Pelaez went
to court impleading the auditor general to prevent the auditor general from passing in audit,
expenditures of the municipality created under the executive order. Pelaez claimed that section
68 of the Revised Administrative Code was unconstitutional. Accordingly, since section 68 was
the basis used by president Macapagal in the issuance of executive orders, all such executive
orders were invalid, if the basis which was section 68 was unconstitutional. The SC agreed with
Emmanuel Pelaez and said section 68 was unconstitutional. This was not a valid delegation of
legislative power. And so, this particular municipality challenged by Pelaez had to be abolished. It
was abolished in fact by law, by virtue of the decision saying that section 68 was unconstitutional.
Tingnan nyo ha. Flowing from section 68, the executive order creating municipalities, if the
president created municipality A under that executive order and pursuant to the executive order,
the chief executive of the municipality and the majority of the members of the sanggunian were
appointed by the president, that is supposed to be the start of corporate existence of municipality
A. then the SC comes in now and says unconstitutional therefore no basis for the issuance of the
executive order. Therefore, no municipality, no mayor, no councilors because there is no
municipality. The question arose and that is where you talk also of a de facto municipal
corporation. Suppose it took 2 years , the mayor appointed and the members of the council drew
salaries during the 2 years. Suppose they were able to build a municipal building. Ano ngayon, 2
years after unconstitutional, invalid EO invalid municipality, mayor, municipal hall. Naroon ang
municipal hall nakatayo. Is A a de facto municipal corporations? Go back to the requirements.
Assumption of corporate powers. Yes, nagassume ng corporate powers for 2 years. Colorable
compliance with the law, yes dahil nakatayo naman sila. An attempt in good faith to incorporate
through the EO. Valid law authorizing incorporation. What was the law under which municipal A
was incorporated? Section 68 of the Revised Administrative Code. Section 68 was not a valid law.
Therefore you lack the 1st requisite of a de facto municipal corporation. Therefore this was not a
de facto municipal corporation. It was a usurper municipal corporation. Therefore, will the mayor
and the councilors be required to refund what they received? Because then they cannot claim to
be de facto public officers. Matindi ito. Then followed several cases because of the decision in
Pelaez vs Auditor General. Some of these cases were filed against municipalities creating EO
even if the EO was issued 30 before the challenge in court was made. A number of them 16
years after the decision in Pelaez vs. Auditor General was handed down by the SC. And in fact
still a number of them filed in court after the 1987 constitution was ratified, class, at least in all of
the cases filed after the 1987 constitution, those cases were dismissed and the municipalities
deemed to be de jure municipal corporations. Why? Because the SC said, attached to the 1987
constitution is an ordinance, that ordinance actually is apportionment of the provinces, cites in
Metro Manila into legislative districts. The apportionment into legislative districts of provinces
include the specific municipalities that form part of the district. If a municipality created under the
EO which was based on an unconstitutional law was included in the ordinance, then by virtue of
constitutional recognition of the municipalitys existence, that municipality is a de jure municipality.
Of course a decision was made in one ( cut )

193

July 23, 2004

LOCAL GOVERNMENT
The powers of LGUs. Flowing from the character of the LGUs, the powers of LGUs may
also be classified into governmental and corporate powers. Of course there are other
classification of powers, alam na alam nyo na rin yan, ministerial, discretionary, mandatory,
directory, intramural, extramural, express, implied, inherent. Alright. Let us look at the powers
granted to LGUs under the LGC. 1 st of these powers of course is that granted under section 16 of
the LGC. 1st of the governmental or public power of the LGUs. Section 16 which is known as the
general welfare clause. When we discuss police power we said that the general welfare clasue s
the general grant by Congress of police authority to LGUs. So that there is an encompassing
grant of powers to a LGUs to undertake anything for the promotion of the general welfare
including specific powers for health, morals, environment, etc. everything. So, this brings us back
to our discussion on police power and we said that for LGUs to be able to exercise delegated
police authority there must be a law expressly granting the power. We have the law. The powers
we exercise only within the territorial limits of the LGUs except when intended to protect water
supply and water supply is found outside the territorial jurisdiction of the LGU itself. And we spoke
of the basic limitation on the exercise of police power which basically are the due process clause
and the equal protection clause. The interest of the public in general as distinguished from those
of a particular class require the exercise of the power and the means employed are reasonably
necessary for the accomplishment of the purpose and not unduly oppressive on individuals. And
then we also spoke of Magtahas vs. Price Properties and the 6 limitations on the validity of
ordinances and resolutions which a LGU may pass, namely, 1 st must not contravene the
Constitution or any statute, it must not be unfair or oppressive, must not be partial or
discriminatory, must not be unreasonable, must not prohibit although it may regulate trade, must
be general in application and consistent with public policy. We have discussed this. 1 or 2 of the
dcided cases on the matter. We have discussed the Dagupan city ordinance for example, when
the SC said that the ordinance which will impose the obligation to have all subdivision plans
approved by the city engineer and a 30 centavo fee imposed of every square meter of saleable
land decalred by the SC as unconstitutional, an invalid exercise of police power because it
contravenes a statute, a statute being a subdivision law. Consider Balaquit will not be asked
anymore because it was already asked last year. Balaquit vs. CFI or Agusan where the invalidity
of an ordinance imposing penal sanctions on theatre owners who charge more than half of the
regular admission rate for children 12 years old or below. Perhaps Binay vs. Domingo, the Makati
Municipal Government pa noon under Mayor Binay entered into a contract with Makati Medical
Center whereby the municipality of Makati virtually leased of 1 floor of Makati Medical Cen ter
to be used by the city or by the municipality for indigent patients, paupers of Makati referred by
the Makati Municipality to Makati Medical Center. Accordingly, the Municipality of Makati
prepared a voucher for payment to Makati Medical. The Auditor refused to pass this in audit.
Mayor Binay went to the COA and the COA refused to pass this in audit. Mayor Binay went to the
SC. The SC upheld Binay and said his part of the obligation of a municipality to take care of its
poor and indigent inhabitants. The fact that only a limited number of people are benefited
considering the entire population of Makati does not really matter according to the SC. The SC
actually upheld this as a valid exercise granted under the general welfare clause. Relate this to
City Government of Quezon City vs. Ericta where the SC declared as an invalid exercise of
police power the city ordinance requiring all comercial cemetery owners to reserve 6% of saleable
burial lots for paupers in Quezon City. The SC said that was an invalid exercise of the police
power . that was instead the exercise of eminent domain and if Quezon City wants to get the 6%
of available lots, then Quezon City should pay the cemetery owners the corresponding value of
the lots. When I 1st looked ate these 2 decisions, it is natural that the SC should favor those who
are the live ones, who are still sick and have to go to the hospital. But of course you will notice
the distinction. In Quezon City, Quezon City was trying to pass its obligation to private individuals
to private commercial cemetery owners, the obligation to take care of its poor in the city. In Binay,
it was the municipality willing to foot the bill for the medical treatment, for the hospital confinement
of its poor. This is the difference. In taking care of its poor, the LGU effectively performs an act
designed to promt0e the general welfare. And in Binay there is passing the buck, the municipality
willing to foot the bill. In Quezon City they tried to pass this obligation on to a private enterprise
and that is why the SC invalidated the QC ordinance. So, all the other cases there actually
reinforce our requisites for the valid exercise of this power. The 2 nd power is the power or the duty
of the LGU to deliver basic services and facilities to its inhabitants. And for this purpose the LGUs
have ample authority to precisely deliver this one the basis of its own capability depending on its
financial status, its financial condition. And then it is in connection with this delivery of basic
services and facilities that we come upon the term devolution. Bakit hanggang ngayon hindi pa
man lang tinatanong ito sa bar exams? Devolution is defined in the LGC itself as the act of the
national government in conferring and granting powers and responsibilities, powers and functions

194

to various LGUs to exercise specific functions and responsibilities. Under the LGC, there is a
devolution. What do you mean by devolution? Devolution means that the national government is
giving LGUs certain powers which are powers of the national government. Powers to be
performed by these LGUs and in 1992, there was devolution of 3 basis powers of the national
government which were supposed to be performed by the 3 departments in the national
government. 1st, agriculture. 2nd, health, and 3rd, social welfare and development. The devolution
since the national government was granting the LGUs these powers, the LGUs had to get from
the national government the personnel the properties, funding, money in order to be able to
accomplish the purposes for which these powers were to be exercised. These devolved powers
were to be exercised. and so the employees of agriculture of the municipal and provincial levels
had to be devolved. They were to be given to the LGU. It became the obligation of the LGU to
pay the salaries of these people. The same thing happened in the case of health. Formerly
national employees or official of the DOH of the provincial and municipal level had to be
separated from the national level and became employees of the provincial and municipal
governments and then there respective emoluments and salaries were to be paid by the LGUs
already and the same thing happened in the case of DSWD. However, even as there was a
devolution of these functions at the local level, the national agencies continued to exist and
maintained only field units on a regional basis and so you have the Department of Agriculture field
unit in the region holding office in the regional center, the regional director heading the
department of health field unit in the regional center and the same thing with DSWD.
Unfortunately, the LGUs were not adequately prepared for the devolution. And so many, those of
you who come from the provinces are aware of what has happened to these employees who
became employees of the LGUs after the devolution. Many of them are complaining now and in
the 6 years that I was a member of the House of Representatives I was beset by requests to file a
bill that would return them to the original national mother units. Hirap na hirap sila. We never
succeeded in the HR even passing through a committee. In my province kawawa mashado ang
health services dun. Even our provincial hospital was discredited by the Philippine Health
insurance. Nagbabayad ka ng Medicare para kung may sakit ka punta ka sa hospital ichaharge
mo sa medicare, now its the Philippine Health Insurance. Pero pagdating mo sa hospital, hindi
accredited and health insurance. Hindi babayaran ng hospital kaya hindi mo magagamit yung
benefit mo despite the fact that you continued paying the premiums. Wala. So that is what the
delivery of basic services and facilities mean in the LGC.
Next is the power to generate and apply resources. This goes into the taxing power in the
LGUs and the application for the use of these resources. We have to follow certain rules since
municipal taxation is part of your favorite subject, taxation which you have mastered already. I will
not attempt to discuss municipal taxation with you, except only to reiterate Basco vs. Pagcor on
the continuing authority of Congress even in the matter of taxation even if the Constitution
contains a provision expressly granting the LGU the power to tax to LGUs. It is still the Congress
that has control. Then the power of eminent domain under section 19. we already mentioned
this let us just go through this once more. We just look at the requirements for the exercise of
LGUs of the power of eminent domain. The power is exercised by the mayor of the chief
executive upon authority granted by the sanggunian through an ordinance. It is an ordinance that
must be passed by the sanggunian granting the chief executive the authority to file the
corresponding complaint for eminent domain in court. That is required because we already have
a case where a resolution was passed and the SC said it was not in compliance with law because
the law requires an ordinance. 2 nd, the LGC requires that there must be a definite offer to buy
which was declined or not accepted by the property owner. Only upon showing that there was a
definite offer to buy which was not accepted may a LGU institute an action for eminent domain.
3rd the purpose for public use, purpose or welfare for the benefit of the poor and the landless. So
it is not simply public use as already indicated, but it is public use, public purpose, public welfare
for the benefit of the poor and the landless. Next, the LGC explicitly provides that the LGU
exercising the power of eminent domain has the right immediately to enter the property and start
development works for the purpose for which the property is being taken on showing of a deposit
equivalent to 15 % of the market value of the property as appearing in the tax declaration. And
so, if we recall something we already discussed in connection with this, upon filing of the
complaint for eminent domain which may be accompanied already by a certificate of deposit
showing that 15% is deposited in the bank then a motion for a writ of possession or entry may
already be filed and the SC said that this cannot be denied by the court where the case is
pending. So, the writ of entry or possession must issue as a matter of course. And finally the law
precisely says that the payment of just compensation shall be based on the market value of the
property at the time of the taking. And this was as we already mentioned affirmed by the SC in
the case of spouses De damo vs. City of Cebu, where the SC made reference to section 19 of the
LGC saying that it is expressly provided in the law that market value is to be determined at the
time of the taking. All other principles regarding eminent domain which we mastered already
should just be recalled. Under RA 7279 in the matter of urban land and housing reform, it is also
the LGU that is given the authority to exercise the power of eminent domain to acquire land,
subdivide these lands for resale perhaps to inhabitants deserving of this. Recall that under RA

195

7279, this is specifically for purposes of urban land and housing. This is not just any public use,
public purpose, public welfare and so this is a special grant of eminent domain by Congress to
LGU for this specific purpose of urban land and housing reform consistent with section 9 article
13 of the Philippine Constitution. Then we have the power to classify or reclassify lands, if you
will recall what we mentioned when we were talking about article 12 and the classification of
lands of public domain, we said lands of public domain are classified into agricultural, forest or
timber lands, mineral land and national parks and the constitution says only agricultural lands
may be alienated. There is a classification that has to be done and it is within the power of
Congress of course and this power may be delegated as it is in fact delegated to the executive
department on classification. Relate this to agrarian reform, to CARL. Because under the
Comprehensive Agrarian Reform Law (CARL), the Department of Agrarian Reform (DAR) will
have to approve conversions and or reclassification where land is classified into agricultural land
then it is potential agrarian reform target. And if you are the owner and you ask the DAR for a
conversion of your land from agricultural to residential because you intend to put up a subdivision
there or a somebodys developer says that is a good subdivision etc. there is a process provided
under the CARL for the owner of agricultural land to have this converted or reclassified into
residential land. Now the Local Government comes in and says the LGU itself may reclassify its
own agricultural lands. When it is no longer feasible as an agricultural land as certified by the
Department of Agriculture. And of course it has greater commercial value as a residential or
commercial or industrial as certified by the sanggunian itself. And look at the limitations. In the
case of cities, highly urbanized cities, you can convert as much as 15% of existing agricultural
land. Reclassify that into residential, commercial or industrial. In the case of municipalities
classified as 1st to 3rd class, these municipalities can classify up to 10% of their agricultural land
and in the case of municipalities, 4th to 6th class they can reclassify only up to 5% of their existing
agricultural lands in their municipality. You notice that the lower the class of the municipality the
more there is need for agricultural land and so the lesser the amount of agricultural land allowed
for conversion or reclassification. This is a way of circumventing the CARL by simply lobbying to
reclassify your agricultural land into residential, commercial, industrial because the LGC does not
impose any requirement. The LGU can itself reclassify without need of approval, consent by the
president or the secretary of Agrarian Reform or things like those. If I were the bar examiner, I
would ask a question of the potential authority of conflict between the DAR and the LGU in the
exercise of this. Of course it will only be 1% of the exam.
The next power is the power to close roads and open. Roads alleys squares plazas may
be ordered closed by the LGU upon an ordinance duly passed by at least 2/3 vote of the
sanggunian. Provided of course that adequate ordinance for the provisions of public safety must
be adopted and that provisions for substitute or replacement areas when necessary be also taken
and finally provided that if it is a freedom park that is to be ordered permanently closed. The
ordinance shall not become effective unless a replacement area shall be provided by the LGU.
Temporary closures my also be adopted by the LGU on special occasion or during emergencies.
Sa mga municipalities it is very clear ditto madalas ito gawin pag magpipiyesta isinisasara na
muna ang ibang mga roads, lalagyan ng mga baratilyo o ukay ukay o whatever and then yun for
a number of days wala, sa temporary closure. Now just one important point here on the power to
close roads. The SC and even the law itself provides that when there is a valid closure of the
road, then valid permanent closure then the LGU may deal with the property as if it were now a
patrimonial property and dispose of the property precisely as a patrimonial property. And yet
roads, alleys, plazas, squares are property of public dominion. They are governmental or public
property which through the exercise of the power to close will convert this public property into
patrimonial property which the LGU can now dispose just like any private property. Yung 1 kasi
involving Catanduanes. Ganto yan. This was done under the old LGC. A owned this property, B
owned this property. The provincial government decided to construct a road here. Malaking road
dito. Itong malaking property itong kay A and kay B. eating into part of As property as well as of
Bs property. because was already this big road here, it was decided to close this and what they
got from A here they paid with half of this. Naghati sila, kalahati kay A naghati kay B. Under the
old LGC, there was the obligation of the LGU to compensate any property owner who may be
injured or suffer damage from the closure of the road. pero mukhang hindi magkaibigan itong si A
at si B ang ginawa ni A naglagay ng piggery dun sa katapat na katapat ng bahay ni B edi na galit
na galit si B and demanded, una quinestion nya yung ano and then demanded that he be given
an access road sa kabila. The SC said no, you have enough access sa ibang parts. Hindi ka na
kelangan bigyan ng iba pa ng access road. Palagay ko nagaway yang si A at si B. Notice we
have cases involving for example closure of roads in Paranaque including temporary closure of
roads in Baclaran. The fact that when you order a road closed permanently, the effect of the
permanent closure is to convert this. The SC had a number of cases declared that the closure
was not valid because it involved purely public property which the LGU may not dispose of as
private property. Pero tingnan niyo ito, pagkakataon ito ng LGU to sell, dispose of what are
originally public property. Imagine if you close an entire plaza, although of course if you close an
entire plaza, there will be the corresponding substitute for that plaza but considering our
municipality is all over the country where the plaza are situated mainly in the center of the town.

196

If that plaza were ordered closed and other plaza is open in the peripheral areas of the
municipality consider that that plaza ordered closed would command a very high price in terms of
property values than one that is made the replacement of the plaza kaya ito perhaps those who
study the LGU want to become mayor kasi nakikita nila marami palang ganito. Totoo yun I think
those of you who are intending to run should think about this. Nakikita ko ngayon that between a
congressman and a governor it is much much better to become a governor than a
congressman.E papano, ang governor hindi nadedelay ang IRA, ang CDF ng Congressman
delayed ng 1 taon so ganyan. Isa nalang. The delegated legislative authority to LGUs. E yung
over the police wala pa yan this is being negotiated in Congress amendment ng law which will
restore control over police forces in the municipality or the LGUs ayaw din ng mga police na
national. Ang control ng local police.
And so on the matter of legislative enactments because as we spoke of this as one of the
allowable instances of delegation of legislative powers the delegation to LGUs. Accordingly, we
have in the LGC such delegation to LGUs by Congress authorizing LGU therefore to pass
ordinances and resolutions which have the force and effect of law even as they are effective
generally only within the limits of the territory in the LGU concerned. Recall again mukhang ano
ako dito that the Metro Manila Development Authority (MMDA) is not a LGC. Accordingly the
MMDA does not exercise delegated legislative authority. Neither does MMDA exercise delegated
police authority. The MMDA therefore cannot pass with greater reason, not pass ordinances in the
exercise of delegated jurisdiction.
Except that the chief executive of the LGU has the power to veto ordinances passed by a
local government sanggunian only on 2 grounds. One, that the ordinance is ultra vires, beyond
the power of the LGU to pass, and 2nd that the ordinance or resolution is prejudicial to the public
welfare. Yung review by the sangguniang panlalawigan of the ordinances, review by the
sangguniang bayan of barangay ordinances, and of course yung police, wala pa naming
nangyayari dian. That completes our discussion of governmental powers of LGUs.

197