Make your weakness your strength

Internal self-determination v external self-

determination WALA NAMAN GROUND NA IMMUNITY FROM SUIT.
Internal: a people’s pursuit of his own political, economic THE GROUND IS LACK OF JURISDICTION. HAY NAKU
social, and cultural development WITHIN THE How is this immunity from suit waived?
FRAMEWORK of an existing state Expressly or impliedly

External: unilateral secession or separation May the president waive the immunity of the state? OF
COURSE NOT!
RIGHT TO SELF-DETERMINATION OF THE PEOPLES: Sino may power? CONGRESS. That is one of the plenary
refers only to INTERNAL SELF-DETERMINATION powers of Congress.
Only CONGRESS.
Intervention – dictatorial interference of one state in the
internal affairs of another state or his relations with Outline:
another state usually backed up by force or threat of force How waived?
– prohibited under international law Expressly Impliedly
Prohibition on use of force- JUS COGENS NORM 1.General 1. When the State itself commences a
Intervention v Intercession. law litigation against a private party
WHAT IS PROHIBITED IS INTERVENTION. Intercession 2.Special law whereby it opens itself to a possible
is not. counterclaim
E.G. Tender of advice/filing of diplomatic protest – MERE 2. When the State enters into a
INTERCESSION. THAT IS NOT PROHIBITED contract with a private party (should
be in a private capacity. Not all
Doctrine of State Immunity from Suit contracts)
Sec 3 Article XVI : The state may not be sued without its
consent Special law
2180 NCC
Without it – still we are bound by it: because of the 24 LGC
doctrine of incorporation (generally accepted principle of
international law) Dalawa lang nahuhulog sa manhole – Kung hindi lasing,
tanga.
USA v. Quito (Sandoval in relation to Teotico v. City of Manila)
Arigo v. Swift
Whenever the State enters into a contract with the private
Why does it apply to foreign governments? party : On the theory that it descends into the level of a
Principle of Sovereign Equality of all States private party

Par in parem non habet imperium Discussion on USA v. Ruiz

An equal may not assume jurisdiction over an equal
Otherwise, it will unduly vex the peace of nations.
Discussion on ARIGO V. SWIFT
Damage of corals in Tubbataha Reef
Petition- writ of Kalikasan
Will the petition prosper?
No.
The USS Guardian is an American naval vessel
Under customary international law – they are extension of
the terriroty of the State where they belong
By what principle? Exterritoriality principle
DISMISSED
On the ground of lack of jurisdiction: applying the doctrine
of Sovereign Equality of all states
By virtue of doctrine of incorporation, it automacally
became part of our laws
Not every contract entered into by the State is deemed a
waiver
One has to distinguish between an acta jure imperii and
acta jure gestionis
Acta jure imperii – NO WAIVER
RESTRICTIVE DOCTRINE OF STATE IMMUNITY
Not every contract entered into by the State is deemed a
waiver of its immunity from because one has to distinguish
between acta jure imperii and acta jure gestionis
USA V. GUINTO
Filipino cook at Camp John Hay. That cafeteria is
operated by the American authorities
Sino pang di nakapunta ng Baguio dyan? AYYY DO NOT
PRETEND HA!
Removed as cook – yung soup - hinahaluan niya ng jingle
niya
Nagpunta siya sa Labor Arbiter – illegal termination case.
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 Make your weakness your strength

US: Invoked state immunity from suit
Ruling: The cafeteria is being run as a business enterprise
It is entered into commercial or proprietary capacity – acta
jure gestionis
SC remanded the case to the Labor Arbiter.
As you learned in your Oblicon, the subject matter of the
contract must NOT be outside the commerce of men.
So it may not be the subject of a valid contract.
Term-sharing agreement – common yan. Lalo na sa
party-list. That is a contract! Unenforceable [sic] in courts
yan.

SUABILITY of the state v. LIABILITY of the state
Suability – just matter of the state waiving its state
immunity from suit.
When the state allows one to sue it, it does not
automatically conceive liability. It merely gives the
claimant an opportunity to prove that he may hold the
state liable. The state may raise possible legal defenses
to avoid liability
(my dissenting opinion: VOID due to the absence of one
of the essential requisites)
3. Public office is not a property.
- so it is not protected by the due process clause
- only limitation for abolition of office: IT MUST BE DONE
IN GOOD FAITH
There can be no vested right to public office

Liability – matter of applicable law and the circumstances
of the case
Municipality of San Fernando La Union v Judge Pirme
Driver of dump truck– collided with jeepney
Damages filed by heirs of victim
Invoked state immunity from suit – MTD
Dump truck holding gravel for the repair of municipal
roads
– engaged in the repair of municipal roads
- engaged in governmental functions
Removal of an officer v. Abolition of Office
These are two distince modes of terminating officer-
relations
Abolition- it is the office itself. Wala ka nang babalikan pa.
Removal – it is only the occupant.
The power of Congress to create an office carries with it
the power to abolish
Who are the impeachable officers?

This is now a case of damnum absque injuria 1. Pres

2. Vice pres
In the matter of execution to satisfy judgment against the 3. Members of the Supreme court
state 4. Members of the Constitutional commissions
5. Ombudsman
Enforcement This list is EXCLUSIVE.
Waiver is limited only up to the rendition of judgment
Execution of the judgment will require another WAIVER SIX GROUNDS:
GO TO THE CONGRESS – for them to make the 1. Culpable violation of the Constitution
necessary appropriation 2. Treason
- compellable by mandamus 3. Bribery
- since there is already a judgment that became final and 4. Graft and corruption
executory, it is the government that should be the first one 5. Other high crimes
to respect its Courts 6. Betrayal of public trust

PART 7 Who prosecutes?

The House of Representatives – acting as a prosecutorial
Article XI – Accountability of Public Officers body

1. Public office is a public trust. It is not a privilege. Who tries?

2. Public Office is not an inheritable possession. We are
not a monarchy. We are a democratic and republican
State.
Prohibition on political dynasties: not self-executing
2. Public office is outside the commerce of men
The Senate – must be on oath or affirmation – as judges
Who shall preside? The Chief Justice
Do local government units have
Local government units do not have inherent powers.
They are mere creatures of legislature, unlike the State
itself
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Permissible Delegation
People through plebiscite/referendum
Emergency power
Tariff Power
Administrative Agencies
Local governments
What are the tests for a valid delegation of power
1. Completeness test
2. Sufficient standard test
To see to it that there is no undue delegation of power.
That is now an abdication of power! It will violate
separation of powers.
A delegation running riot!!
Freedom of expression quote
Justice Puno in the case of Iglesia ni Cristo v. CA July 26
1996
"The constitutional provision on religious freedom
terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil
immunity.
Its essence is freedom from conformity to
religious dogma, not freedom from
conformity to law because of religious
dogma.
The bedrock of freedom of religion is freedom of
thought and it is best served by encouraging the
marketplace of dueling ideas. When the luxury of
time permits, the marketplace of ideas demands
that speech should be met by more speech for it
is the spark of opposite speech, the heat of
colliding ideas that can fan the embers of truth
Completeness test:
There is nothing left for the delegate to do but just to
implement or enforce the law. The delegate may not fill in
the gaps in the law
If there is a gap in the law, what is the remedy?
AMEND THE LAW
Who may amend?
ONLY the Congress can amend its own act.
Sufficient standards test
For as long as standards that will limit the authority of the
delegate or that will guide the delegate as long as the
standards are determinate or determinable
Part 8
Belgica v. Ochoa – the case involving the pork barrel
system
Make your weakness your strength
Pork barrel: LUMP SUM DISCRETIONARY FUND
2 kinds of pork barrel: (1) Congressional pork barrel (2)
Presidential pork barrel
Congressional – PDAF
Presidential – DAP
The reasons are entirely different from one another.
The pork barrel system declared unconstitutional
Congressional:
1. Violated principle of Separation of Powers.
Limited to oversight function
In effect, they are the ones implementing the budget.
Post-enactment activity in vital areas of budget execution.
The work of Congress is only up to the enactment of GAA.
When it comes to implementation – executive.
2. Violated non-delegability of legislative/non-delegation
of legislative power
The power of appropriation was delegated by the
Constitution to the Congress as a body, and not to the
individual members of Congress
HINDI PWEDE YAN.
3. It denied the President the power to veto items
Sec 27 Art VI of the Constitution
1st paragraph: the general veto of the President: If it
vetoes the bill, it does not become a law
2nd paragraph: item or line veto of the President
2 Kinds of Presidential veto
1. General Veto
2. Item or Line veto
In a bill, there is no such thing as selective veto!
Either he signs the bill in toto and signs the law or he
vetoes the bill in veto
Bengzon v Drilon
The OSG is correct when it states that the
Executive must veto a bill in its entirety or not at
all. He or she cannot act like an editor crossing
out specific lines, provisions, or paragraphs in a
bill that he or she dislikes. In the exercise of the
veto power, it is generally all or nothing.
However, when it comes to appropriation,
revenue or tariff bills, the Administration needs
the money to run the machinery of government
and it cannot veto the entire bill even if it may
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 Make your weakness your strength

contain objectionable features. The President is,

therefore, compelled to approve into law the
entire bill, including its undesirable parts. It is for Part 9
this reason that the Constitution has wisely Under this present Constitution, legislative power is no
provided the "item veto power" to avoid longer exclusively vested in the Congress
inexpedient riders being attached to an
indispensable appropriation or revenue measure. Sec 1 with Sec 32 – shall make an initiative and
referendum law
SANDOVAL LINES:
HOOOOOOOOOOOY WHAT LAW?
RA 6735
SO THERE YOU ARE
3 kinds of iniative
GET THE POINT? 1. on the consti
2. on the statute
CONSHTITSHYON 3. on local legislation

4. The system impaired public accountability.
Remember, public office is a public trust.
5. In so far as it authorized legislators despite the
existence of capable local institutions… – it likewise
subverted genuine local autonomy
Sec. 5 Art II of the Constitution: Autonomy of local
government.
DAP
ONLY REASON: Undue delegation of powers to the
President applying the sufficient standards test
The 2nd one – that is the implementing – reservation made
by the people
We have a bicameral Congress consisting of a Senate
and the House of Representatives
= Bicameral Conference Committee
-mechanism for compromising the differences between
the Senate and the House of Representatives
After bicam- sent back to both houses
If nays won – another bicam con com will be held
SEC 24 ART VI
bills required to originate exclusively in the HR

“other purposes he may deem fit” APRIL

Appropriation
The transfer of appropriated funds, to be valid under Private
Section 25(5), supra, must be made upon a concurrence Revenue/Tariff
of the following requisites, namely: Bills authorizing Increase in public debts
Bills of Local application
(1) There is a law authorizing the President, the President
of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, Tolentino v Secretary of Finance
and the heads of the Constitutional Commissions to What is required to originate form HR is only the bill, not
transfer funds within their respective offices; the law

(2) The funds to be transferred are savings generated The Congress may propose or concur with amendments
from the appropriations for their respective offices; and (3)
The purpose of the transfer is to augment an item in the Representatives
general appropriations law for their respective offices. 2 kinds of rep
1. district
No first element: 2. party-list
ection 25(5), supra, not being a self-executing provision
of the Constitution, must have an implementing law for it Veterans Federation Party v. COMELEC
to be operative. That law, generally, is the GAA of a given Party-list representatives shall constitute 20% of the total
fiscal year. To comply with the first requisite, the GAAs number of rep including those under the party-list
should expressly authorize the transfer of funds
Do not just multiply it by 20%
-not savings
Just divide it by 4.
-transfer not within the executive office

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 Make your weakness your strength

Do not round it off. If your round it off – it will exceed 20%.
You will violate the Constitution that way
In such a case, simply DISREGARD the fraction.
Fractional representation is NOT allowed.
2. Electoral Tribunals: SET/HRET
-on the basis of proportional representation from the
political parties having members in the senate or HR, as
the case may be

Veterans Federation Party v. COMELEC Sec 19: CoA shall meet only when Congress is in session

In Sema v. COMELEC promulgated July 16, 2008 Only
Congress can create provinces and cities because the
creation of provinces and cities necessarily includes the
creation of legislative districts, a power only Congress can
exercise under Section 5, Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution.
Ang Bagong Bayani
Social justice tool
Atong Paglaum
1. national
2. regional
3. sectoral: 2 groups.
-marginalized and underrepresented sectors
-lack well-defined political constituencies??
What if it is not in session?
Sec 16 Article VII – with respect to the appointing power
of the President
Ad interim- appointment made when Congress is on
recess, whether voluntarily or compulsory or when
Congress is not in session
That is because COA shall meet only when Congress is
in session.
That is the reason why the framers of the Consti – ad
interim - to prevent hiatus
Ad interim:
Literal meaning: “in the meantime: “for the time being”

National and regional – they need not organize along If made while the Congress is session:
sectoral lines, need not represent marginalized and Regular appointment
underrepresented sectors
Sec 16 Article VII
May they participate in the party list elections?
GR: NO, it they field candidates in the district elections Sec 17 Article VII with respect to the two ETs
XPN: they may participate through their sectoral wing,
provided that the latter is independely registered and SET
connected with the former through a coalition 25
12 senators
Part 10 12 congressmen
Congressional immunity Senate pres-chairman
“from any other place”
- go to the ethics committee – HRET
Because the Congress may disciple its members -9 members each
3 Justices SC
When is bail a matter of right? 6 – either Senators or Congressmen
Before conviction: less than reclusion perpetua
Again, the basis is proportional representation
If after conviction; Constitutional provision will not apply –
check Rules of Court From a decision of the electoral tribunals from Congress,
where should a party go to appeal?

Incompatible office v. Forbidden Office NO APPEAL

May you be validly appointed to a forbidden office?
NO Because the Consti made them the SOLE JUDGE of
election contests etc
Incompatible office, may be validly appointed – the
moment the accepts: he forfeits his seat Is appeal a constitutional right? NO
NOT FOUND IN THE CONSTITUTION – not in the bill of
Incompatible office: Inhibition rights
Forbidden office: Prohibition/Disqualification
What is the remedy of the party adversely affected?
Bodies attached to the Congress Rule 65
1. Commission on Appointments
Page 5 of 44

Why not rule 45? Rule 45 is not a mode of appeal
So RULE 65 is the only remedy
Bondoc v Pineda
These ETs, although attached to the Congress yet they
are independent of the Congress so that the Senate
and the HR may not validly intrude or interfere in the
conduct and proceedings of these Electoral Tribunals
Disbursement Acceleration Progam
Araullo v. Aquino
Sec 5(5) of Article VI
GR: No law shall be passed authorizing any transfer of
appropriation
XPN: power of augmentation
Only 5 people have the power of augmentation:
(eds: actually its 7)
1. President (do not include v-pres)
2. Senate President
3. Speaker of the House
4. Chief Justice
5. Heads of the ConCom
3 important requirements:
(L-SC)
1. there must be a law authorizing them to do that
2. funds used to augment must come from savings from
their respective departments and savings must be
determined only after the end of the fiscal year
3. no cross-border transfer of funds
Cross-border: follows the doctrine of separation of powers
How about the projects funded by DAP?
WASAKIN ANG HOSPITAL unconstitutional yung DAP e.
Doctrine of operative fact:
An executive or legislative act declare unconstitutional
cannot give rise to any right or obligation
-quoted extensively in Araullo v Aquino
As an operative fact that produce consequences that
cannot be erased
It sustains if effects – exception to the general rule that a
void law produces no effect
-it could no longer be undone
- subject to greater scrutiny
- proceeds from equity and fair play
*see quote*
Part 11
TWO TYPES OF CONGRESSIONAL OR LEGISLATIVE
INVESTIGATIONS
1. Inquiry in aid of legislation Sec 21 Article VI
2. Question hour Sec 22 Article VI
Make your weakness your strength
Arnold v Nazareno
-very old case
-under 1935 Consti
As early as that, the Court ruled:
- intrinsic in the grant of legislative power in the Congress
by the Constitution is the power to conduct inquiries in aid
of legislation
How can you expect the Congress to enact good laws if
you will deny it the power to investigate?
If you will read the 1935 Consti- walang ganyan na
provision sa 1935 Consti yet as early in that Case, the SC
recognized ….
Even if it is NOT expressly stated in Sec 21 of Article VI!
(you do not need that PROVISION!!!)
Bengzon Jr. v. Senate Blue Ribbon Committee
2 important questions
1. is this absolute or is it subject to limitations?
2. is it subject to judicial review or is it a political question?
A mere look at Sec 21 Article Vi will show that this power
is not really absolute. There are important limitations there
1. the inquiry must always be in aid of legislation whether
in connection with a pending bill in the Congress or in
connection with a bill expected to be filed in the Congress
2. must be conducted in accordance with the duly
published rules of procedure of the house of the congress
conducting the inquiry
3. the rights of persons appearing in or affected by such
inquiries shall be respected
As to the second question: is this subject to judicial
review? Or Is this a political question?
This is not a political question.
This is subject to judicial review, especially in view of
expanded power of the Courts
The Court may validly inquire into:
(1) whether the inquiry is in aid of legislation
(2) whether the inquiry is conducted in accordance with
the duly published rules of procedure of the house of
Congress conducting such inquiry
(3) whether the rights of persons appearing in or affected
by such inquiries are respected
In the case of Bengzon, was not really in aid of legislation
This case of BENGZON JR. happened during the time of
Cory Aquino – then Senator Enrile – he delivered a
privilege speech and alleged that there were certain prop
owned by cronies by Marcos landed on some of the
relatives of Cory Aquino. Those were subject to the
proceedings of Sandiganbayan, how come they landed
into the hands of Aquinos?
Page 6 of 44

Sen. Enrile encouraged the blue ribbon committee to
conduct an inquiry.
SC: Was that really in aid of legislation? What is the
purpose?
- that is an encroachment of our judicial prerogative!
- to determine Won there is a violation of Philippine
criminal laws
If we allow the senate blue ribbon committee – what if later
on the SBR will arrive in a conclusion different from the
one decided by Sandiganbayan? You are inviting a
possible constitutional crisis
Ordered SBR not to conduct further inquiry. After all, it
was not really in aid of legislation
Later case: Standard Chartered Bank v. Senate
Committee on Banks
Justice Nachura
SCB- foreign bank allowed to do business in the PH
There were local investors who alleged that they were
victims of malpractice of SCB
- Went to Enrile
- todetermine Won there are loopholes in our laws to
prevent local investors from fraudulent bank practices
SC: Obviously it was in aid of legislation
To determine Whether there are loopholes in our laws so
that remedial measure can be enacted
Just remember the three important limitations.
Legislative Contempt
- if required to attend before that legislative body but did
not appear or refused to cooperate
- may even be sent to prison there
What is the nature of the power of contempt?
Judicial
That is an inherent power of the Courts
XPN: LEGISLATIVE CONTEMPT
When the Congress conducts an inquiry in aid of
legislation
May you be validly pardoned by the PRES?
No, in view of the doctrine of separation of powers
Intrinsic – is the power to conduct inquiries in aid of
legislation WITH THE PROCESS TO ENFORCE IT
What is that process? Legislative contempt
How long shall you remain in prison?
You hold the key to your freedom. You shall remain there
as long as you refuse to cooperate
Question hour
Make your weakness your strength
- who may appear? The heads of departments
They shall testify as to any matter pertaining to their
departments
If in aid of legislation: ANY PERSON may appear
- Question hour – is merely a borrowed concept from
parliament
Senate v. Ermita
Remember EO No. 464
Promulgated by who? By the little girl
Prohibiting members of her Cabinet including offices of
the armed forces etc from appearing in legislative
investigations without her consent
It was there where the Supreme Court made a very
important distinction between QH and inquiry in aid of
legislation
Sec. 21 v Sec 22
If what is involved is inquiry in aid of legislation – members
of the cabinet etc MAY not validly refuse to appear.
Otherwise, they may be cited in contempt [legislative
contempt]
If they do not appear in inquiries in aid of legislation, how
can you expect Congress to enact good laws if you
deprive the Congress the information it needs?
It will impair the work of Congress.
It will impair the Sec 7 of Article III of the Bill of Rights –
right of the people to information in matters of public
concern
Remember that the members of the Congress are the duly
elected representatives of the people
Only the Pres of the Executive Secretary ACTING by __
of the president: they are the only ones that can appear
Not the other Cabinet members
For the president or executive secretary to validly refuse
– HE MUST CLAIM/INVOKE/ASSERT Executive
Privilege
What is an executive privilege?
Right of the Pres. And other top exec. officers to withhold
info from Congress, the Courts, and ultimately, from the
public
3 varieties of executive privilege
1. State’s secret
2. Informer’s privilege
3. Generic privilege for internal deliberations
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 Make your weakness your strength

The privilege must be asserted. It cannot be implied.

10 2 1
Why?
Because we are a democratic and republican state Imelda Marcos case – 7 months
The general rule is DISCLOSURE of public information. - petition to disqualify her before the COMELEC
Moreover, there shall be no blanket invocation of - how did the Court justify? Animus revertendi
executive privilege -3 kinds of domicile
1. domicile by birth
May refuse to appear in question hour. 2. domicile of choice
- it is not mandatory 3. domicile by operation of law

Alejano v. Cabuhay When her husband died-reverted to original domicile

*READ*
Part 12
Article VII Powers of the President
Executive power-power to implement/enforce/administer When you talk of the specific powers of the Pres – not
the laws limited to those enumerated in Article VII

Faithful Execution Clause Marcos v. Manglapus

He shall ensure that the laws be faithfully executed Return from exile
Sec 17 Article VII Court went further
The president – has unstated residual powers
Doctrine of Qualified Political Agency or the Alter-Ego - not mentioned in the Consti but nonetheless, the
doctrine President may exercise
The members of the cabinet are deemed to be the alter-
egos of the President. Acts performed or rendered in the Specific Powers
regular course of business are deemed to be acts of the Sec 16 – Appointing power
President unless reprobated or disapproved by him. 2 paragraphs
1.
XPN: If it is the Constitution itself that the act shall be 2. ad interim – in recess or when the Congress is not in
performed by the President session
Resident Marine Mammals v Secretary Angelo Reyes
case Do all appointments need confirmation from the CoA?
The one who signed was the Secretary of Energy –
agreement with foreign eme Sarmiento v. Mison
These four (4) groups, to which we will hereafter refer
SC: DQPA does not apply from time to time, are:
4th par Sec 2 Article XII
First, the heads of the executive departments,
What are the qualifications to run for Pres Vpres Senator ambassadors, other public ministers and consuls, officers
Congressman of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
Common: (CAR) vested in him in this Constitution;
natural-born citizens
Able to read and write Second, all other officers of the Government whose
Registered voter appointments are not otherwise provided for by law;

Where do they differ? Third, those whom the President may be authorized by
Age law to appoint;
Residence
Fourth, officers lower in rank 4 whose appointments the
Pres Vpres 40 35 25 Congress may by law vest in the President alone.

40 on the day of the elections Only those mentioned in the first sentence that
Not on the day of promulgation requires CONFIRMATION
Not on the day of assumption into office 1. heads of the executive departments (Cabinet
secretaries)
35 XPN: Vice-President – THIS IS THE ONLY EXCEPTION
2. ambassadors, other public ministers and consuls
25 Congress

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 Make your weakness your strength

3. officers of the armed forces from the rank of colonel or
naval captain
4. and other officers whose appointments are vested in
him in this Constitution (e.g.
1. members of the Constitutional Commissions
2. regular members of the JBC,
Manalo v. Sistoza
Offices of PNP in equivalent rank – NOT included
President PNP is a civilian agency – placed under the
civilian department
They are not included in the phrase “officers of the Armed
Forces”
Present PNP is no longer part of the Armed Forces.
- cannot assume office
- if not approved, retains his position
Matibag v. Benipayo
Is an ad interim appointment, permanent or temporary?
-Permanent!
Matibag v. Benipayo
An ad interim appointment is a permanent appointment
because it takes effect immediately and can no longer be
withdrawn by the President once the appointee has
qualified into office.
The fact that it is subject to confirmation by the
Commission on Appointments does not alter its
permanent character.

You should know the composition of JBC The Constitution itself makes an ad interim appointment
Ex officio members permanent in character by making it effective until
The 4 regular members – needs confirmation from disapproved by the Commission on Appointments or until
Commission on Appointments the next adjournment of Congress

Calderon v Calare and Manalo v. Sistoza Summers vs. Ozaeta,

- the list requiring confirmation from COA is EXCLUSIVE
Q: ad interim- what if not confirmed, can the President
What about appointment of Judges and Justices? reappoint you?
NO A: NO

Instead of Commission on Appointment – JBC!! Q: ad interim – bypassed- can the President reappoint
you?
To strengthen the independence of the Judiciary A: yes!!
MATIBAG V BENIPAYO
2nd par: ad interim appointment
During the recess of the Congress, whether voluntary or PAG DINISAPPROVE LANG
compulsory -if disapproved – it is a judgment of the Commission on
the merits of his qualifications
Ratio: Commission can meet only when the Congress is That it involves principle of checks and balances
in session
If by-passed – can still be reappointed!
-so that there will be no hiatus in the government service A by-passed appointment is one that has not been finally
acted upon on the merits by the Commission on
What is the most important distinction between an ad Appointments at the close of the session of Congress.
interim appointment and the regular appointment There is no final decision by the Commission on
- it lies in the EFFECTIVITY of the appointment Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent such
-if ad interim: IT TAKES EFFECT IMMEDIATELY decision, the President is free to renew the ad interim
appointment of a by-passed appointee.
But NOT in a regular appointment
Ad interim appointment v. appointment in an acting
Ad interim capacity
- takes effect immediately subject only to the resolutory Pimentel v. Ermita
condition Ad interim In acting capacity
- IF he assumed office and later on not confirmed by the may be made only when may be made regardless
Commission: cannot return to his office. the congress is in recess of whether the congress is
WHY? INCOMPATIBLE OFFICE or not in session in session or not in
The moment he accepts, he forfeits his seat session
permanent tempo
If Regular requires confirmation does
- does not take effect immediately

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 Make your weakness your strength

SEC 17 POWER OF CONTROL

If LGUs – Power of General Supervision ONLY Besides, if persons guilty of offenses like murder, rape
with homicide, etc, they can be pardoned where the
Why is that so? evidence of guilty is beyond reasonable doubt why should
Sec 25 Article II- AUTONOMY of local governments you deny the same privilege to those merely found guilty
of administrative offenses like negligence, grave
SEC 18 misconduct, etc? where the evidence of guilt is a mere
1. CALLING OUT POWER substantial evidence
2. MARTIAL LAW POWER
3. POWER TO SUSPEND THE PRIVILEGE You should notice the logic and argument of the Court.

Martial law and power to suspend Monsato v Factoran

I. Grounds She was an asst municipal treasurer
1. invasion Convicted of malversation
2. rebellion
II. subject to judicial review Granted absolute Pardon by the President
III. Maximum of 60 days Take note it is absolute
IV. May be revoked by Congress
V. Within 48 hours- President is requires to report to the She tried to push her luck a little bit too far. She demanded
Congress either personally or in writing that she be reinstated and be paid the backwages

Martial law – does not automatically suspend the privilege Will that entitled her to the reliefs sought?
of the writ
SC: no to both questions!
The right to bail shall not be impaired even if the privilege
of the writ of HC is suspended Effect of grant of pardon
Pardon may mean forgiveness, but not forgetfulness.. In
Calling out power the eyes of the law, she is still a convict
UNLESS the grant expressly so provides
SEC 19
DI LANG PARDON YAN Unlike amnesty that reaches back to the past. In the eyes
1. reprieves of the law, he was just like a new-born child. Clean slate
2. commutations doctrine
3. pardons
4. remit fines and forfeitures, after conviction by final The very essence of a pardon is forgiveness or remission
judgment. of guilt. Pardon implies guilt. It does not erase the fact of
5. amnesty the commission of the crime and the conviction thereof. It
does not wash out the moral stain. It involves
Reprieve – suspension of execution – STAY of the forgiveness and not forgetfulness
execution – NOT THE SENTENCE!!!
Suspension of sentence? ANO YAN? PROBATION YAN The better considered cases regard full pardon (at least
HA?? one not based on the offender's innocence) as relieving
the party from all the punitive consequences of his
Commutation – lowering the penalty criminal act, including the disqualifications or disabilities
based on the finding of guilt. 17 But it relieves him from
Yung amnesty nakahiwalay. Nasa 2nd paragraph siya! nothing more
A pardon looks to the future. It is not retrospective. 19 It
Ang amnesty will require the concurrence of the makes no amends for the past. It affords no relief for what
MAJORITY of ALL the members of the CONGRESS has been suffered by the offender
- conviction by final judgment is not required
But there is a counterbalancing situation – concurrence of Vidal V COMELEC
the Congress Estrada ran for mayor
Vidal: disqualified! Since convicted although granted
Grant of pardon – withdraw your appeal pardon by GMA

Pardon is avaialable not only one guilty of a crime but also
to one guilty of an administrative offense
Since the Constitution did not distinguish, we shall not
distinguish.
Vidal “only a conditional pardon”
When he ran, he violated the conditions.
Not only disqualified, he shall serve his sentence

Page 10 of 44

In the proclamation: whereas… he has signified his
intention not to run in any elective office
RULING:
Contrary to Risos-Vidal’s declaration, the third
preambular clause of the pardon, i.e., "[w]hereas, Joseph
Ejercito Estrada has publicly committed to no longer seek
any elective position or office," neither makes the pardon
conditional, nor militate against the conclusion that former
President Estrada’s rights to suffrage and to seek public
elective office have been restored.
This is especially true as the pardon itself does not
explicitly impose a condition or limitation, considering the
unqualified use of the term "civil and political rights"as
being restored.
Jurisprudence educates that a preamble is not an
essential part of an act as it is an introductory or
preparatory clause that explains the reasons for the
enactment, usually introduced by the word
"whereas."40 Whereas clauses do not form part of a
statute because, strictly speaking, they are not part of the
operative language of the statute
Another important issue:
Carries accessory penalty: Perpetual disqualification –
see RPC
Argument: what was pardoned was only the main penalty-
reclusion perpetua. It does not include the accessory
penalty
RULING:
For this reason, Articles 36 and 41 of the Revised Penal
Code should be construed in a way that will give full effect
to the executive clemency granted by the President,
instead of indulging in an overly strict interpretation that
may serve to impair or diminish the import of the pardon
which emanated from the Office of the President and duly
signed by the Chief Executive himself/herself. The said
codal provisions must be construed to harmonize the
power of Congress to define crimes and prescribe the
penalties for such crimes and the power of the President
to grant executive clemency.
A rigid and inflexible reading of the above provisions of
law, as proposed by Risos-Vidal, is unwarranted,
especially so if it will defeat or unduly restrict the power of
the President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the
words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied
without attempted interpretation. Verba legis non est
recedendum. From the words of a statute there should be
no departure.
Part 13
Make your weakness your strength
The role of Senate – is limited only or withholding its
consent
Bayan v. Zamora
In our jurisdiction, the power to ratify is vested in the
President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving
or withholding its consent, or concurrence, to the
ratification
Executive agreement – no need for concurrence
In international law – there is no difference between a
treaty and executive agreement – they are equally binding
international obligations
VFA is involved
Pimentel v Office of the Executive Secretary
Ratification of the Rome statute
OFFENSES THAT FALL UNDER THE JURISDICTION
OF THE ICC
HuWAG
1. crimes against HUmanity
2. War crimes
3. Aggression
4. Genocide
State immunity from suit extends to the President
It cannot be invoked in the ICC
My opinion: it is deemed a waiver. Niratify mo ICC e. so it
is not really an exception
Making the unequal equal
Principle of Complementarity
ICC shall be complementary to national criminal
jurisdiction
IT GIVES PRIMACY to national criminal jurisdiction
If the Court of one State already assumed jurisdiction …
ICC will no longer assume jurisdiction
XPNS:
1. the intention is to protect the accused from liability
2. not conducted independently impartially
= ICC may still assume jurisdiction
Sec 21 of article VII v Sec 25 of Article XVIII
SECTION 25. After the expiration in 1991 of the
Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so
Page 11 of 44

requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
Before we allw foreign military bases in PH
1. treaty
2. when C requires – ratified by majority of the people in
a referum held for that purpose
3. the other contracting state must also consider it as a
treaty
In VFA: Sec 25 article xviii will govern because it is a
special provision
Section 21, Article VII deals with treatise or
international agreements in general, in which
case, the concurrence of at least two-thirds (2/3)
of all the Members of the Senate is required to
make the subject treaty, or international
agreement, valid and binding on the part of the
Philippines. This provision lays down the general
rule on treatise or international agreements and
applies to any form of treaty with a wide variety of
subject matter, such as, but not limited to,
extradition or tax treatise or those economic in
nature. All treaties or international agreements
entered into by the Philippines, regardless of
subject matter, coverage, or particular
designation or appellation, requires the
concurrence of the Senate to be valid and
effective.
In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the
presence of foreign military bases, troops or
facilities in the Philippines. Under this provision,
the concurrence of the Senate is only one of the
requisites to render compliance with the
constitutional requirements and to consider the
agreement binding on the Philippines. Section 25,
Article XVIII further requires that "foreign military
bases, troops, or facilities" may be allowed in the
Philippines only by virtue of a treaty duly
concurred in by the Senate, ratified by a majority
of the votes cast in a national referendum held for
that purpose if so required by Congress, and
recognized as such by the other contracting state.
Part 14
2 kinds of Political Question
1. Questions which are to be decided by the people in
their sovereign capacity (e.g. loss of confidence as
ground for recall)
2. Questions in regard to which full discretionary authority
has been delegated by the Constitution to the executive
or legislative branch of the Government
Basis of calling-out power: That is a political question
XPN: if there it can be shown that there has been a grave
abuse of discretion
Make your weakness your strength
Because of the expanded concept of judicial review, the
doctrine of political question has been greatly affected, in
fact, it has been greatly diminished
It is not the legality of the act, but whether the power was
exercised whimsically or capriciously
Vinuya v. Romulo
In matters of foreign policy, the executive and judiciary
must speak with just one voice
Part 15
1. there must be an actual case or controversy
2.must have sufficient locus standi
3. the constitutional question must be raised at the earliest
opportune time
4. the resolution of the constitutional question must
constitute the very lis mota of the case
When is the earliest opportune time?
Matibag v Banipayo – in pleaings filed before cout of GN
Belgica v Ochoa
- the first two are the most important
Actual case or controversy
- ripe for resolution and susceptible of judicial
determination, that which is not conjectural or anticipatory
Courts may not resolve hypothetical cases or cases
based on assumption
Cannot render advisory opinions
Moot and academic principle
XPNS (GEFC)
1. grave violation of the Constitution
2. the exceptional character of the situation and the
paramount public interest
3. formulation of principles to able to guide the bench, the
bar, and the public
4. capable of repetition yet evading review
May ICJ render advisory opinions? YES
Because under the UN Charter and ICJ Statute has 2
main functions:
1. to resolve contentious cases
2. to render advisory opinion to GA, SC, and other organs
of the United Nations
Arigo v Swift
Liberalization of standing
Has personal and substantial interest in the case where
he have sustained or will sustain direct injury as a result
of the act deemed challenged
Sec 14 Ombudsman Act -
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 Make your weakness your strength

No writ of injunction shall be issued by the court to delay Macalintal v. COMELEC

an investigation of the Ombusdman.. unless prima facie There is now an exception to the Residence requirement
evidence – Overseas Filipinos – Absentee Voters’ Act of 2003

Carpio-Morales v CA 6th Division Power to register and accredit political parties:

-declared unconstitutional: the 2nd paragraph only Sec 2 par 5 Article IX-C
-appellate jurisdiction of SC may not be increased without
its consent What vests personality in an organization as political party
-1st paragraph: inoperative is registration in the COMELEC
This encroach on the rule-making power of the SC until
we are able to rule on the matter What groups may not be registered: (RACS)
1. religious denomination and sect
2. those who seek to achieve their goals through violence
or unlawful means
3. those which refuse to uphold and adhere to the
1. Pre-election Constitution
2. Election 4. supported by any foreign government
3. Post-election
5th paragraph Sec Article IX-C
Registration of voters Not all financial contributions from foreign governments
are prohibited. Only those related to elections.
Election protest and quo warranto are POST-
PROCLAMATION REMEDIES Sec 81 BP 881: The Omnibus Election Code
Connect it with the 5th paragraph Sec 2 Art IX-C of the
Substitution of candidates Constitution
-before the election
Among the election offenses is:
Qualifications of a voter Intervention of foreigners
Sec 1 Art V Suffrage
1. citizen Pre-election activities:
2. not otherwise disqualified by law 1. Registration of voters
3. legal age 2. Registration of party-list
4. resident of PH – 1 year
5. resident where he will vote - 6 months before the Election period
elections 30 days before and 30 days after the election
It goes beyond the election
No literacy/property, or other substantive requirement
IBA SA CAMPAIGN PERIOD YAN
Q: Congress enacted a law providing therein that only
those who graduated HS can vote It does not end on the day of election itself
A: OBVIOUSLY, it is unconstitutional
What about the campaign period?
Kabataan partylist v. COMELEC Duration varies.
Questioned the constitutionality of requiring biometrics on It depends on what office you are running for. If national:
the theory that it is a substantive requirement in the longer period
exercise of suffrage
At any rate, GR: campaign period begins after the last day
SC: did not agree of filing of COC
Clarified the meaning of substantive requirement as
distinguished from procedural requirement BUT it always ends 1 day before the election. ALWAYS

Registration laws are police power measure designed to
ensure that only those who possess the qualifications and
none of the disqualifications can exercise the right of
suffrage
Substantive: something to do with gender, color, etc.
Election campaign or Partisan Political Activity 1 day
before the election until the election day – that will be an
election offense
In practice, especially in the PH, that is when the real
campaign begins

Residence qualification: 1 year in PH the place where he

will vote 6 months

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 Make your weakness your strength

Sec 79-B of the Omnibus Election Code

Election campaign/Partisan Political Activity Next day – he withdrew
- no problem
Have you noticed that the two terms are used That was March 31, the last day
interchangeably? In other words, parehas lang yan!
April 1 nagstart
Now who is a candidate? April 2-declaration under oath WITHDRAWING HIS
Sec 79-A WITHDRAWAL
One who files a certificate of candidacy
If you do not file – you are not a candidate WITHDRAWAL OF WITHDRAWAL made after the last
day of filing is deemed to be a filing of a new CoC
Vote for a noncandidate is no vote at all. = Stray vote
Therefore, it should not be allowed for being filed out of
Sec 80 time.
You can only engage in Partisan political activity during
the campaign period Withdrawal by text messaging – NOT a substantial
compliance
If outside = election offense
XPN: pol parties holding party conventions to select who Sec 66
will be their political candidates The effect of filing of CoC
- it can be held even before the campaign period
 Those holding Appointive office
Designed to promote the election or the defeat  Running For an elective office
= ipso facto resigned
(e.g. commercials of those who did not yet file their
certificate of candidacy – not yet a candidate. If we follow The moment you filed, you are ipso facto resigned from
the letter of the rule, there is no violation” your APPOINTIVE office or position

What about the spirit of the law? Never mind. Wala What happens later on could be of no moment. You could
nanaman may pakialam sa spirit. no longer go back to your appointive office or provision

It is not even considered a partisan political activity Extent of applicability

PPA- designed to promote the election or defeat of a It applies as well to Members of the Armed Forces in the
“candidate” active service as well as employees and officals of
GOCCs
Filing of CoC
Sec 76 -it applies to GOCCs without original charters
It is the MINISTERIAL DUTY to receive and acknowledge
receipt CoC Reasoning of SC
Sec 66
The question of WON he is disqualified or not – belongs The law did not distinguish
to another tribunal – to be resolved in a disqualification
case Quinto v. COMELEC
Where the SC declared Sec 66 of the OEC
Sec 73 3 important rules unconstitutional
1. must file CoC within the period prescribed by law. Late
filing is not allowed Ratio: discriminated against those government ees
2. only for 1 office in an election. holding public office
3. if you file for two or more positions in the same election It is violative of the equal protection clause
you are not candidate in any of those offices. You make
up your mind. Sec 67 had already been expressly repealed
With respect to those holding elective office if they filed
Can you withdraw? Yes CoC- they are not resigned!
Written declaration under oath
Pag appointive office ipso facto resigned?
Monsale v. Mico?
Let us assume the last of filing is March 31 There is no valid classification based on substantial
distinction between those holding appointive office and
Mr X filed March 30 those holding elective office that will justify difference in
A day before the last day treatment in filing the certificate of candidacy.

Page 14 of 44
 Make your weakness your strength

Mayor Miranda is disqualified to run for the 4 th time.

Issue: WON there is substantial distinction COMELEC cancelled CoC – IMPORTANT FACT

RULING: The son, Joel Miranda – upon the nomination of pol par –
No, there is none filed certificate of candidacy for mayor

THAT WAS THE ORIGINAL RULING. Abaya- another disqualification case questioning the
substitution
But…
COMELEC – did not decide upon the 2nd decision
IN A MOTION FOR RECONSIDERATION. There came the election
JOEL Miranda won and already assumed office (also took
The Supreme Court reconsidered. oath)

There was no violation of the equal protection clause Eventually elevated to SC

There is a valid substantial distinction that will justify SC: NO VALID SUBSTITUTION
difference in treatment Ordered Joel Miranda to be removed as Mayor

Those holding elective Those holding Ratio: In that case, the Comelec did not only declare
office appointive office Miranda disqualified but COMELEC ALSO CANCELLED
they have mandate from Their mandate came from HIS COC.
the people the appointing authority
term is very limited Longer term – compulsory When the comelec cancelled his CoC, it is as if he never
retirement 65 was a candidate.
Judges and justices 70
How can a person take the place of somebody who does
This is the controlling jurisprudence. not exist or who never was?
SC upheld the constitutionality of Sec. 66
The existence of a valid COC seasonably filed is a
PART 16 CONDITION SINE QUE NON
Substitution of candidates
Sec 77 A disqualified candidate can only be substituted only if he
had a valid COC
What are the grounds?
If none, he is and was not a candidate at all.
DDW (hindi DSW ah)
1. Death If a person is not a candidate, he cannot be substituted.
2. Disqualification Only a candidate can be substituted.
3. Withdrawal
Considering that Joel Miranda also possesses all the
qualifications of a mayor, can he be considered a
There can be substitution even on the day of election.
candidate in his own right?
WHEN? From the start of campaign period until midday
of election day SC: NO!
Because he filed his CoC long after the last day for filing
It must be within the period prescribed by law.’
It says: must belong to the same political party

Anong implication? Who shall assume mayorship now?

The implication is simple. The candidate who does not Doctrine of the rejection of the 2nd placer
SC applied succession.
belong to a political party cannot be validly substituted.
-old rule. Not the controlling one now
For an independent candidate – nobody will qualify.
Pero yang doctrine na yan wala na yan! Because of
Miranda v. Abaya Maquiling v. COMELEC
Facts
Vox populi, vox Dei
This happened in Santiago City, Isabela
The voice of the people is the voice of God.
Miranda filed certificate of candidacy for mayor
Abaya – disqualification case against him
Sec 77 of the OEC
Ground: already served for 3 consecutive terms
When? From the start of campaign period until the midday
COMELEC: of election

Page 15 of 44
 Make your weakness your strength

Disqualification cases before Election -the COC will not be cancelled

-may be substituted
Sec 68 v Sec 78 -the candidate is really qualified but he committed an
election offense
Remedies before election/3 DQ cases
1. 68 78
2. 69 MEANING of material misrepresentation
3. 78
Salcedo II v COMELEC
Any DQ case filed before elections: jurisdiction is always Refers to qualifications for elective office
with the COMELEC
See case*
SEC 68
Substantially, if engaged in vote-buying, overspending, Must consist deliberate intent to mislead or misinform or
coercion, intimidation, terrorism or any other act violative hide the fact that one is ineligible
of election laws
-you have to file the DQ in the COMELEC Intention to deceive the electorate as to one’s
-the DQ proper qualifications for public office

SEC 69: NUISANCE CANDIDATE When should you avail of Sec 78

-mali tandaan yan, nuisance.. 69 25 days FROM the date that the alleged fraud filed his
-file the petition in the COMELEC candidacy
Under sec 69, the COMELEC may even act in that motu
proprio (pag 69 g na g siya oh) Compare wih sec 69
-ANY INTERESTED PERSON may file the petition 5 days only
(anyone can do 69) From the last day of filing
- BUT there is a period: within 5 days lang yan
FROM the last day of filing of COC 78 not necessarily from the last day of filing

Who is a nuisance candidate? Loong case

He has no bona fide intention to run Won the election but no proclamation yet
- most important phrase Loong was underage based on the record of the civil
Only purpose is confusion…. That will place the election registrar
process in mockery -filed dq case against Loong based on sec 78

-COMELEC will also cancel COC SC: filed out of time

78 Argument: why penalize me, I only discovered it after the

Material misrepresentation as to any statement of fact in election. It should be from the date of discovery
the COC
Relate to sec 74 SC does not agree
That is NOT what the law says. The law is CLEAR.
Fernando v. COMELEC
-not really a citizen of the Philippines Remedy? None
There is a gap in the law. GO TO CONGRESS.
What is the nature of the petition:
Petition to deny due course and CANCEL CoC Reckoned not from the date of discovery – but from the
date of filing
So if cancelled, may he still be substituted? 25-day period is a MANDATORY requirement of the
NO law
Miranda v Abaya
69 and 78 – may period
68 v .78 68 walang period
68 78 and 69
CoC not cancelled CoC cancelled Electoral reforms Law 1987 Public Act 6646
May be substituted NOT The effect of the DQ case

68 ang tawag ko dito ay substitution proper. Sec 6

68- no doubt about it that the candidate is qualified but he 1st sentence. Visualize
committed an election offense Before elections-DQ case

Page 16 of 44

The case has already been resolved with finality
Indeed he was found to be DQ
HE SHALL NOT BE VOTED FOR and the votes cast for
him shall not be counted
2nd sentence
Variation: not decided with finality
Won in the election
COMELEC- not ousted with jurisdiction
The Commission shall continue with the trial/inquiry or
protest, as the case may be
Cayat v COMELEC
Cayat – he was a priest then he ran for mayor
Filed DQ against him on ground of Sec 40a of LGC it says
there substantially – those convicted of an offense moral
turpitude etc…..
The disqualification is not perpetual
-may be elected after 2 years from service of sentence
Cayat was convicted for acts of lasciviousness
Cayat won the election.
Proclaimed – took the oath
SC: ordered removal
Basis: first sentence
He shall not be voted for and the votes cast for him shall
not be counted.
Since the decision of the COMELEC dq-ing Cayat already
attained finality as early as 2 weeks before the election –
votes cast for him shall not be counted
Who is now the mayor?
Vice mayor or the contestant.
The CONTESTANT
At that time-no Maquiling case yet
At that time, the rejection of the 2nd placer doctrine is NOT
yet abandoned
FOR ALL INTENTS AND PURPOSES, there was no 2 nd
placer here. In fact, THERE WAS ONLY ONE
CANDIDATE
The doctrine of the rejection of the 2nd placer
Maquiling v. COMELEC
A 2nd placer is just like that – a 2nd placer
Facts:
Arnado used to be a natural-born Filipino – migrated to
US –naturalized – later on Congress enacted 9225 –
Arnado availed the benefit of that law
-reacquired his Filipino citizenship
Make your weakness your strength
Status: person having dual citizenship
He ran for mayor.
He renounced his American citizenship.
Terminated his status as a dual citizen
Travelled using American passport
Effect: that is an EFFECTIVE RECANTATION OF HIS
RENUNCIATION
So in effect, he reverted to his prior status as a person
having dual citizen
Disqualified under Sec 40 of LGC: those with dual
citizenship
SC: ORDERED REMOVE AS MAYOR
Clarification: Using American passport did not have the
effect on his Filipino citizenship
The effect is only on his renunciation of American
citizenship.
Be careful with how you present that.
Mercado v. Manzano
Qualified even if a dual citizen
Dual citizen must be construed as dual allegiance
Oh paano ngayon yan? How you explain the difference in
treatment.
Simple. Arnado di naman movie star.
In Manzano’s case-dual citizenship is not by volition –he
was born in America
In Arnado’s case – it is a product of his own volition –
applied for naturalization
… back to Arnado’s case
He was removed as mayor.
Maquiling, the 2nd placer, claims that he should be the one
to be declares as mayor
Vice-Mayor: you are just the 2nd placer. You are not
chosen by the electorate.
SUPREME COURT: MAQUILING, the 2nd placer
CJ sereno traced the history
Tupacio v. Paredes – origin of the doctrine of the rejection
of the 2nd placer
In Tupacio – it is a mere obiter dictum!
A void COC cannot produce any legal effect
The votes cast for the ineligible candidate are disregarded
Page 17 of 44
 Make your weakness your strength

Part 17 -direct yan, di dadaan sa Division ng COMELEC yan

After election: counting, canvassing, proclamation of the
winning candidates Sec 3 of Article IX-C
- shall first be heard by the Division of the COMELEC
Post proclamation remedies: - MR- COMELEC En Banc
1. election protest
2. quo warranto Recap
Before election: COMELEC
Never file if the candidate has not yet been proclaimed. Pre-Proclamation: COMELEC
Premature iyon. Failure of election: COMELEC En Banc

After the election but before proclamation, there is a Post proclamation:

remedy there. Election protest and quo warranto? What Court has
jurisdiction?
PRE-PROCLAMATION governed by the following:
1. sec 241 definition Mitmug v. COMELEC
2. 242 what Court: COMELEC. Again. For as long as there was an election, although the turn-
3. 243 the issues that may be raised in a pre-proclamation out of voters are very low
case (4)
COMELEC shall not act on the petition for failure of
Since Arnaldo is disqualified, the votes cast for him shall elections. After all, there is no requirement in our election
not be counted. He was never a candidate laws that majority of voters must cast their votes. All that
is required is
Maquiling is not the second placer. He was the first among
the remaining qualified candidates There can be failure of election in a political unit only if
the will of the majority has been defiled and cannot be
Ejercito case ascertained. But, if it can be determined, it must be
-won –took oath accorded respect. After all, there is no provision in our
-disqualified for overspending election laws which requires that a majority of registered
voters must cast their votes. All the law requires is that
The one who replaced him: Vice-Governor a winning candidate must be elected by a plurality of valid
votes, regardless of the actual number of ballots cast
In Arnado- it was as if he has never been a candidate’
Ejercito – no question – he is qualified: FOLLOW THE Do not disenfranchise the voters that way.
LAW ON SUCCESSION
Before COMELEC can act on a verified petition seeking
Sec 6 of OEC to declare a failure of election, two (2) conditions must
Petition to declare failure of elections concur: first, no voting has taken place in the precinct or
precincts on the date fixed by law or, even if there was
on account of: voting, the election nevertheless results in failure to elect;
1. force majeure and, second, the votes not cast would affect the result of
2. violence the election.
3. terrorism
4. fraud First condition is not present in Mitmug case.
5. other analagouse causes
So what Court has jurisdiction? COMELEC En Banc –
3 situations contemplated Sec 4 RA 7166
No Elections
Election was suspended If granted: will schedule special elections in that area
Failure to elect: nobody emerged as a winner
Pre-Proclamation
It is a remedy separate and distinct from a pre- 243 how many issues? Pero actually that can be
proclamation case simplified into two

In a proclamation case: there was an election that took a. Illegality in the composition or proceedings of the
place Board of Canvassers

Sec 4 RA 7166: e.g. someone sit there who is not supposed to be there
Jurisdiction over petition to declare failure of elections
belongs to COMELEC En Banc b-d illegality in the PTRCA

Page 18 of 44
 Make your weakness your strength

Preparation Period:
Transmission EP: 10 days after proclamation
Receipt QW: 10 days
Custody
Appreiciation See rules in PET

Of what? Labo v. COMELEC

Not of ballots ah -if issue in QW is lack of citizenship, the period may be
But of election returns ah and certificates of canvass extended
-only XPN to the period
The process has been simplified now.
Sec 243(a) na lang natira. Because illegality in the Various jurisdictions
PTRCA –affected by the computerization of our laws EP and QW: INVOLVING PRESIDENT AND VICE-
PRESIDENT
Idem sonans rule SUPREME COURT EN BANC sec 4 article VII (7)
(same sound)
- if misspelled, if your pronounced it the same way – count Sole judge of all contests and returns/qualifications of the
it in favor of the candidate PRESIDENT AND VICE-PRESIDENT
=after PROCLAMATION
Desciptio personae rule
-described Tiagong Putol It did not say candidate
Santiago na putol ang kamay When do you become President? AFTER
PROCLAMATION
Post Proclamation
SC here will act as PET (Presidential Electoral Tribunal)
Question:
How do you distinguish an election protest from a Senator: SET
petition for quo warranto “of their respective members”
EP
The main issue is: Who really won the elections? House of Rep: HRET
Nagkadayaan ba? Nagkatakutan ba? Nagkabilihan ba?
Ang bottomline niyan, sino ba talaga nanalo? No appeal. The Constution made them the “sole judge” of
all contests relating to election returns and qualifications
Remember: what is controlling is not the title
Remedy: Special Civil Action for Certiorati Rule 65
QW: eligibility of the winner
COMELEC: elective regional/provincial/city officials
Who may file
EP: a candidate RTC: elective municipal officials -> appeal to COMELEC
QW: any registered voter
MTC: barangay/SK officials – appeal to COMELEC
Effect
EP: assume office Tecson case
QW: fill vacancy – follow law on succession. If not, the The word “contest” there – includes election protest and
position shall be declared vacant quo warranto

Election Quo Warranto Two distinct remedies having one object in view: to unseat
protest the winning candidate
The main issue Who really won eligibility of the
is the elections duly-proclaimed No splitting of jurisdiction in election protests and
winner quo warranto. The same Court has jurisdiction
Who may file a candidate any registered
voter The word “election returns” refers to election protests. The
Effect assume office fill vacancy – word “qualifications” refers to quo warranto.
follow law on
succession. If SECTION 3. The Commission on Elections may sit en
not, the position banc or in two divisions, and shall promulgate its rules of
shall be procedure in order to expedite disposition of election
declared vacant cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division,

Page 19 of 44

provided that motions for reconsideration of decisions
shall be decided by the Commission en banc.
Reyes v. RTC of Oriental Mindoro
It is this Decision of the COMELEC En Banc that may be
reviewed by the SC via a petition for certiorari
Comelec Div -> COMELEC EN Banc -> SC
Meaning to say from a decision of the Division of the
COMELEC. Wag kang dumiretso sa SC. Magfile ka muna
ng MR.
Reyes ruling modified
Gementiza v. COMELEC
If what is involved is an interlocutory order of the
COMELEC, there, the party may go to SC directly
What is contemplated under Sec 3 of Art IX-C is a FINAL
decision of the COMELEC Division. MR first
Appointment
How is a public officer chosen? Election and appointment
Let us focus on Appointment
Appointment v. Designation
Designation –presupposes that a person already
appointed – merely given additional functions.
Designation is merely temporary
Appointment is discretionary
That is very important
It is a political question. As long as the appointee meets
the minimum qualificatios are satisfied
Rimonte v. CSC (1995)
The head of an agency who is the appointing power is the
one most knowledgeable to decide who can best perform
the functions of the office. Appointment is an essentially
discretionary power and must be performed by the officer
vested with such power according to his best lights, the
only condition being that the appointee should possess
the qualifications required by law.
If he does, then the appointment cannot be faulted on
the ground that there are others better qualified who
should have been preferred. Indeed, this is a
prerogative of the appointing authority which he alone can
decide. The choice of appointee from among those who
possess the required qualifications is a political and
administrative decision calling for considerations of
wisdom, convenience, utility and the interests of the
service which can best be made by the head of the office
concerned, the person most familiar with the with the
organizational structure and environmental
circumstances within which the appointee must function
Make your weakness your strength
organizational structure and environmental
circumstances within which the appointee must function.
As long as the appointee is qualified the Civil Service
Commission has no choice but to attest to and respect the
appointment even if it be proved that there are others with
superior credentials. The law limits the Commission's
authority only to whether or not the appointees possess
the legal qualifications and the appropriate civil service
eligibility, nothing else. If they do then the appointments
are approved because the Commission cannot exceed
its power by substituting its will for that of the
appointing authority. Neither can we.
Flores v. Drilon
constitutionality of Sec. 13, par. (d), of R.A. 7227-SBMA
Charter
“Provided, however, That for the first year of its operations
from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority”
Gordon – mayor of Olangapo
-chairman and CEO of the SBMA
Article IX-B
SECTION 7. No elective official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure.
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
1ST par: holding elective office
2nd par: holding appointive office
1st paragraph: ONE XPN in flores v. Drilon – if they are
holding the other office in an ex-officio capacity
That is the only exception
2nd paragraph: 2 xps:
1. allowed by law
2. allowed by the primary functions of their position: they
are holding it in an ex-officio capacity
Gordon: covered by the first paragraph because he is an
elective official
Argument: but there is a law allowing it
SC: that exception “allowed by law” only refers to those
holding appointive office.
That will violate Sec 7 ARTICLE IX-B of the Constitution
Page 20 of 44

Another reason of the supreme court: goes against the
nature of appointment which is the discretionary
the power of choice is the heart of the power to
appoint.
power to appoint an officer, it (Congress) cannot at the
same time limit the choice of the President to only one
candidate. Once the power of appointment is conferred
on the President, such conferment necessarily carries the
discretion of whom to appoint. Even on the pretext of
prescribing the qualifications of the officer, Congress
may not abuse such power as to divest the appointing
authority, directly or indirectly, of his discretion to
pick his own choice. Consequently, when the
qualifications prescribed by Congress can only be met by
one individual, such enactment effectively eliminates the
discretion of the appointing power to choose and
constitutes an irregular restriction on the power of
appointment.
In the case at bar, while Congress willed that the subject
posts be filled with a presidential appointee for the first
year of its operations from the effectivity of R.A. 7227, the
proviso nevertheless limits the appointing authority to only
one eligible, i.e., the incumbent Mayor of Olongapo City.
Since only one can qualify for the posts in question, the
President is precluded from exercising his discretion to
choose whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is no
power at all and goes against the very nature itself of
appointment.
Accordingly, while the conferment of the appointing power
on the President is a perfectly valid legislative act, the
proviso limiting his choice to one is certainly an
encroachment on his prerogative.
Sandoval: it will violate the doctrine of separation of
powers
Next-in-rank rule
Simply says that if a vacancy is filled by promotion. The
person holding the position next-in-rank thereof shall be
considered for promotion
Let us assume that there is a certain govt office
The head of the office is a Chief Accountant. The next in
rank is the Deputy Accountant based on its organizational
structure. 3rd in rank is an Administrative Officer
The Chief Accountant retired
The Deputy Accountant who is also qualified – applied for
the position
Administrative Officer who is also qualified also applied
So there are two applicants. Both of them are applicants.
The Chief Accountant of another government office also
applied
Make your weakness your strength
There are now three applicants.
The one appointed was the Chief Accountant of that other
government agency.
Q: May the Deputy Accountant complain that there is a
violation of the next-in-rank rule?
A: NO
Remember that the next-in-rank rule applies only if the
vacancy is filled by promotion
In this case, how is this filled?
Remember that there is no legal fiat that the vacancy
shall be filled only by promotion. The appointing authority
is given wide discretion.
Let us vary the facts
What if the one appointed is the Administrative Officer?
May he complain now?
A: YES
How was it filled now? It is by promotion. Remember that
it is a movement from a lower position to a higher position.
He was bypassed.
Can he insist that he should be appointed?
No
He can complain but he cannot insist that he should be
the one appointed
Abila v. CSC
the next-in-rank rule is not absolute;
it only applies in cases of promotion. And even in
promotions, it can be disregarded for sound reasons
made known to the next-in-rank. The appointing authority,
under the Civil Service Law, is allowed to fill vacancies by
promotion, transfer of present employees, reinstatement,
reemployment, and appointment of outsiders who have
appropriate civil service eligibility, not necessarily in that
order. There is no legal fiat that a vacancy must be
filled only by promotion; the appointing authority is
given wide discretion to fill a vacancy from among the
several alternatives provided for by law.
The Court further notes that even if the vacancy here had
been filled by promotion rather than by lateral transfer, the
concept of "next in rank" does not import any
mandatory or peremptory requirement that the
person next in rank must be appointed to the
vacancy. What Section 19 (3) of P.D. No. 807, the Civil
Service Law, provides is that if a vacancy is filled by a
promotion, the person holding the position next in rank
thereto "shall be considered for promotion."
In Taduran v. Civil Service Commission, the Court
construed that phrase to mean that the person next in
rank "would be among the first to be considered for the
Page 21 of 44

vacancy, if qualified. In Santiago, Jr. v. Civil Service
Commission, the Court elaborated the import of the rule
in the following manner:
One who is next-in-rank is entitled to preferential
consideration for promotion to the higher
vacancy but it does not necessarily follow that
he and no one else can be appointed. The rule
neither grants a vested right to the holder nor
imposes a ministerial duty on the appointing
authority to promote such person to the next
higher position. . . .
Qualifications
May be understood in 2 senses:
1. AS AN ACT
2. AS AN ENDOWMENT
ACT – taking of an oath and in case of accountable public
officers: the posting of bond
Article VII SEC 5
Before they enter on the execution of their office, the
President, the Vice-President, or the Acting President
shall take the following oath or affirmation…
- that is qualification as an act!
Article IX-B SEC 4
All public officers and employees shall take an oath or
affirmation to uphold and defend this Constitution
ARTICLE XVI
SECTION 5. (1) All members of the armed forces shall
take an oath or affirmation to uphold and defend this
Constitution.
Let us assume that you are elected to a public office and
then you assumed office BUT FAILED TO TAKE YOUR
OATH
Are your acts valid?
YES
In such case, you become a de facto officer
The acts are valid only insofar as third parties and the
general public relying on such acts are concerned BUT a
de facto officer is not supposed to benefit from his own
acts
De facto officer: He has a known appointment or election
but he failed to conform to some requirements or
precedent
Who is a de facto officer?
-in actual possession of the office but he merely has a
color of title
-his title is imperfect
De jure
Make your weakness your strength
-one lawfully entitled to an office
Usurper
-ha no valid title, not even a color of title. BUT he is an
actual possession of the office
ACTS
Are there acts valid?
No problem with de jure. Of course valid
De facto officer
-his acts is valid only insofar as 3rd parties and the genera;
public relying on those acts are concerned
Usurper
-his acts are entirely VOID
DE FACTO OFFICER
-generally, not entitled to the salary of his office
And also, he is not supposed to benefit from his own acts
Knowing that his title is imperfect, he runs the risk of not
being paid
XPN: he may be allowed to receive the salary
If there is no de jure officer claiming that salary or the
assumption is in good faith.
E.G. Gordon case- he is entitled to his salary
-no de jure officer
-otherwise, the Government will be unjustly enriched from
his services
Requisits to be considered as a de facto officer (OPC)
1. De Jure office (no such thing as a de facto office)
2. Actual possession of the office
3. Color of title
Cannot be collaterally attacked
Only in a quo warranto proceeding
Different from the quo warranto in the election case:
prescriptive period of 1year
After the 1 year period – it ripens into a de jure officer
What if it is the law itself that was declared
unconstitutional?
It creates no rights. Adhere to the orthodox view
Different from Drilon cases where only the provision of law
is declared unconstitutional, not the law itself
Part 19
Qualification as an endowment
Citizenship
Remember that public service is reserved for Filipino
citizens only
2 kinds of natural born citizens
Page 22 of 44
 Make your weakness your strength

1. Those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect
their Philippine citizenship.
2. Those who elect Philippine citizenship in accordance
with paragraph (3), Section 1 hereof shall be deemed
natural-born citizens.
There are two ways of acquiring citizenship: (1) by birth,
and (2) by naturalization. These ways of acquiring
citizenship correspond to the two kinds of citizens: the
natural-born citizen, and the naturalized citizen. A person
who at the time of his birth is a citizen of a particular
country, is a natural-born citizen thereof

3 ways by which Philippine citizenship may be reacquired Another contention:

1. by naturalization respondent Cruz is no longer a natural-born citizen since
2. by repatriation he had to perform an act to regain his citizenship
3. by direct act of the Congress
SC: WRONG
Case of Vicente Ching The acts that Cruz performed were NOT TO ACQUIRE
Governed by 1935 Consti his citizenship.
Elected Phil citizenship after 14 years The acts that Cruz performed were to RE-ACQUIRE
Originally, natural-born na siya e!
SC: it must be within a reasonable time
Reasonable time: 3 years Mercado v. Manzano
Edu-born in US
Why amended: -parents are Filipinos
Absurd situation: if he is an illegitimate child ->he will
follow the citizenship of his mother Ran for Vice mayor of Makati
-no need to elect Philippine citizenship Contested: he has dual citizenship

Case of Fernando Poe 40 of the Local Government Code of 1991 (R.A. No.
Governed by 1935 Constitution 7160), which declares as "disqualified from running for
Mother is an alien any elective local position: . . . (d) Those with dual
Did not elect Philippine Citizenship citizenship."

SC: Still a Filipino citizen ISSUE: was he disqualified?

Under 1935 Constitution: those born of Filipino FATHERS
Ruling: NO
Part 20
It may be lost or reacquired in the manner provided by law What is prohibited is Dual Allegiance
REACQUISITION
1. naturalization2 Dual citizenship v. Dual Allegiance
2. repatriation dual citizenship is different from dual allegiance.
3. by direct act of congress
Dual citizenship arises when, as a result of the concurrent
Bengzon III v. HRET application of the different laws of two or more states, a
Congressman Cruz used to be natural-born person is simultaneously considered a national by the
Lost citizenship said states
Served in us armed forces
Became an American citizen Dual allegiance, on the other hand, refers to the situation
in which a person simultaneously owes, by some positive
Later on, he reacquired his Philippine citizenship act, loyalty to two or more states.
He took an oath of allegiance
He ran for Congressman While dual citizenship is involuntary, dual allegiance is the
result of an individual's volition.
Issue: Was he qualified to run?
There you are. Such a beautiful distinction
SC: YES
It was in this case where the Court discussed the effect of Is sec 5 article IV self-executing?
repatriation SECTION 5. Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law.
Repatriation results in the recovery of the original
nationality NO! “shall be dealt with by law”
The law referred to by Section 5 is a future law
Ratio

Page 23 of 44

Sec 40(b) of LGC is supposed to be an implementing law
of Sec 5 Article IV of the Constitution
It follows that the implementing law prohibits “dual
allegiance”
Sec 40(b) of LGC shall be understood to mean: “dual
allegiance”
"Consequently, persons with mere dual citizenship do not
fall under this disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict
process with respect to the termination of their status, for
candidates with dual citizenship, it should suffice if,
upon the filing of their certificates of candidacy, they
elect Philippine citizenship to terminate their status
as persons with dual citizenship considering that
their condition is the unavoidable consequence of
conflicting laws of different states. As Joaquin G.
Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: "Dual citizenship
is just a reality imposed on us because we have no control
of the laws on citizenship of other countries. We recognize
a child of a Filipino mother. But whether she is considered
a citizen of another country is something completely
beyond our control."
RA 9225 "Citizenship Retention and Re-acquisition
Act of 2003."
The dual citizenship law
To whom does this law apply?
Let us start with Re-acquisition
Former natural-born citizens who became citizens of a
foreign country.
What will they do? TAKE THE OATH OF ALLEGIANCE
The will reacquire but they are still US citizens.
= dual citizenship
That is why it is sometimes called the dual citizenship law
Article XII
SECTION 7. Save in cases of hereditary succession, no
private lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to
acquire or hold lands of the public domain.
If you retained or reacquired your Philippine citizenship-
you are no longer prohibited to acquire private lands
If that be case, will you be qualified to run for an elective
public office?
YES
Sec 5 par 2 of RA 9225
Make your weakness your strength
(2) Those seeking elective public in the Philippines shall
meet the qualification for holding such public office as
required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to
administer an oath;
REQUIREMENTS
1. possess all the qualifications
2. renounce AT THE time of filing of CoC
May you be validly appointed?
YES
REQUIREMENTS
1. oath of allegiance to the Philippines and duly-
constituted authorities
2. renounce foreign citizenship prior to assumption of
office
Maquiling v. COMELEC
Arnado used to be a natural-born Filipino –migrated to
US-naturalized American citizen
Maquiling availed of RA 9225
He ran for mayor
He renounced his American citizenship at the time of filing
Used American passport- that was an EFFECTIVE
RECANTATION OF HIS RENUNCIATION
Distinguish it from Mercado case
In Edu Manzano case, his status as dual citizen is NOT a
product of his own volition
In the case of Arnado: his status is A PRODUCT OF HIS
OWN VOLITION. Ginusto niya yuuun!
Edison So v. Republic
Definition
Naturalization signifies the act of formally adopting a
foreigner into the political body of a nation by clothing him
or her with the privileges of a citizen.
Under current and existing laws, there are three ways by
which an alien may become a citizen by naturalization:
(a) administrative naturalization pursuant to R.A. No.
9139;
(b) judicial naturalization pursuant to C.A. No. 473, as
amended; and
(c) legislative naturalization in the form of a law enacted
by Congress bestowing Philippine citizenship to an alien
RA 9139
Who could avail?
Only native-born aliens
Edison So case
covers native-born aliens who lived here in the Philippines
all their lives, who never saw any other country and all
Page 24 of 44

along thought that they were Filipinos; who have
demonstrated love and loyalty to the Philippines and
affinity to the customs and traditions.
To reiterate, the intention of the legislature in enacting
R.A. No. 9139 was to make the process of acquiring
Philippine citizenship less tedious, less technical and
more encouraging which is administrative rather than
judicial in nature. Thus, although the legislature believes
that there is a need to liberalize the naturalization law of
the Philippines, there is nothing from which it can be
inferred that C.A. No. 473 was intended to be amended or
repealed by R.A. No. 9139. What the legislature had in
mind was merely to prescribe another mode of acquiring
Philippine citizenship which may be availed of by native
born aliens. The only implication is that, a native born
alien has the choice to apply for judicial or
administrative naturalization, subject to the prescribed
qualifications and disqualifications.
In so case, he chose CA 473 but he invokes that ra 9139
shall be applied to him
SABI NG SUPREME COURT, ABA TEKA MUNA, 473
PINILI MO E
Going back to qualification as endowment. You must have
certain attributes like citizenship
Part 21
Let us focus on another area on the Law of Public Officers
Administrative disciplinary cases involving public officers
and employees
1. question of jurisdiction
2. appeals
3. preventive suspension
4. administrative penalties
We have to consider several laws
1. civil service law
2. ombudsman act RA 6770
3. LGC RA 7160
Jurisdiction
If you were to file an admin complaint, where do you file
the complaint?
CSC - Secretary or Head of the Office/Agency/Bureau
APPEAL to the Civil Service Commission
Under the expanded jurisdiction of CA – it will now
Involve a review of the CSComm
LGC – Local Chief Executive
Can you file a complaint directly to the Civil Service
Comm?
YES
It has original and appeallate jurisdiction
Ang problema natin dyan Ombusdman ACT
Make your weakness your strength
RA 6770
Section 21. Officials Subject to Disciplinary Authority;
Exceptions. - The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive
officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the
Cabinet, local government, government- owned or
controlled corporations and their subsidiaries, except
over officials
1. who may be removed only by impeachment
2. or over Members of Congress,
3. and the Judiciary.
Do not be confused. I AM REFERRING TO ADMIN
JURISDICTION of ombudsman, not to its Criminal
jurisdiction.
Appeal from the Ombudsman:
Sec 27 direct to SC- declared unconstitutional
Henceforth – appeal goes to the CA
Under the Civil Service Law, is appeal available?
If you are charged administratively and you are a govt ee
or official and after investigation, you were found guilty.
Can you appeal?
It depends. Why? On the penalty imposed
If removal/dismissal, etc – one may appeal because the
Civil Service law contemplates an appeal in such cases
If suspension for NOT MORE than 30 days.. or anything
lower than that like censure, reprimand, etc
= NO APPEAL
The decision becomes immediately final and executory
You have to remember that appeal is not a constitutional
right, it is merely statutory.
Govt ee- charged administratively –exonerated. May the
complainant appeal?
NO!
Paredes v. Civil Service Commission
Based on the above provisions of law, appeal to the Civil
Service Commission in an administrative case is
extended to the party adversely affected by the
decision, that is, the person or the respondent employee
who has been meted out the penalty of suspension for
more than thirty days; or fine in an amount exceeding
thirty days salary demotion in rank or salary or transfer,
removal or dismissal from office. The decision of the
disciplining authority is even final and not appealable to
the Civil Service Commission in cases where the penalty
imposed is suspension for not more than thirty days or fine
in an amount not exceeding thirty days salary. Appeal in
cases allowed by law must be filed within fifteen days from
receipt of the decision.
Page 25 of 44

Here the MSPB after hearing and the submission of
memoranda exonerated private respondent Amor of all
charges except for habitual tardiness. The penalty was
only a reprimand so that even private respondent Amor,
the party adversely affected by the decision, cannot even
interpose an appeal to the Civil Service
Commission.chanrobles virtual law library
As correctly ruled by private respondent, petitioner
Paredes the complainant is not the party adversely
affected by the decision so that she has no legal
personality to interpose an appeal to the Civil Service
Commission. In an administrative case, the complainant
is a mere witness (Gonzalo v. D. Roda, 64 SCRA 120).
Even if she is the Head of the Administrative Services
Department of the HSRC as a complainant she is merely
a witness for the government in an administrative
case. No private interest is involved in an administrative
case as the offense is committed against the government.
Sando:
Appeal is only available to the party adversely affected
Who is the party adversely affected?
The govt ee who is found to be guilty
UNTIL THERE IS CIVIL SERVICE V DACOYCOY!!
ABANDONADO NA YANG PAREDES
Hala sige haba ng sinulat. Mahaba buburahin. Kasi di niyo
pinasukan law on public officers niyo. WALA NA YAN.
Civil Service v. Dacoycoy
Dacoycoy head of govt vocational school in summer
Admin complaint against him in the civil service
commission for violation of the law on nepotism
2 of his sons were appointed, but it was not he who
appointed them
One became his official driver. One became a utility
worker in his office.
Civil Service Comm: GUILTY
Penalty: removal with forfeiture of retirement benefits
Issue: May Dacoycoy appeal?
Of course! He was the party adversely affected
CA REVERSED
Dacoycoy was now exonerated
Issue: Mayroon pa bang appeal?
Remember that in the administrative case, the offense is
committed against the government. The complainant is
only a witness
Civil Service Commission appealed to the SC
SC reversed the CA – dismissal with forfeiture
Make your weakness your strength
Who now may appeal the decision of the Court of
Appeals to the Supreme Court? Certainly not the
respondent, who was declared not guilty of the charge.
Nor the complainant George P. Suan, who was merely a
witness for the government.13 Consequently, the Civil
Service Commission has become the party adversely
affected by such ruling, which seriously prejudices the
civil service system. Hence, as an aggrieved party, it may
appeal the decision of the Court of Appeals to the
Supreme Court.14 By this ruling, we now expressly
abandon and overrule extant jurisprudence that "the
phrase 'party adversely affected by the decision' refers to
the government employee against whom the
administrative case is filed for the purpose of disciplinary
action which, may take the form of suspension, demotion
in rank or salary, transfer, removal or dismissal from
office"15 and not included are "cases where the penalty
imposed is suspension for not more than thirty (30) days
or fine in an amount not exceeding thirty days salary"16 or
"when the respondent is exonerated of the charges, there
is no occasion for appeal."17 In other words, we overrule
prior decisions holding that the Civil Service Law "does
not contemplate a review of decisions exonerating officers
or employees from administrative charges" enunciated
in Paredes v. Civil Service Commission; 18 Mendez
v. Civil Service Commission;19 Magpale v. Civil Service
Commission;20 Navarro v. Civil Service
Commission and Export Processing Zone
Authority 21 and more recently Del Castillo v. Civil Service
Commission
Sandoval:
The government employee is NOT the only party that
could be adversely affected. It could also be the
government.
UNAFFECTED BY DACOYCOY RULING:
It is elementary that in an administrative case, the
complainant is a mere witness. No private interest is
involved in an administrative case as the offense
committed is against the government. As held by the
Supreme Court in Paredes v. Civil Service Commission:
"As correctly ruled by private respondent, petitioner
Paredes the complainant is not the party adversely
affected by the decision so that she has no legal
personality to interpose an appeal to the Civil Service
Commission. In an administrative case, the
complainant is a mere witness (GONZALO v. D.
RODA, 64 SCRA 120). Even if she is the Head of
Administrative Services Department of the HSRC as a
complainant she is merely a witness for the
government in an administrative case. No private
interest is involved in an administrative case as the
offense is committed against the government."
(Emphasis supplied)
Sandoval:
Not the whole of Paredes was abandoned. Only one
aspect was affected that: The term “the party adversely
affected” may also refer to the government.
Page 26 of 44

THE NATIONAL APPELLATE BOARD (NAB) OF THE
NATIONAL POLICE COMMISSION (NAPOLCOM),
Petitioners, v. JOHN A. MAMAUAG
However, in Civil Service Commission v. Dacoycoy (306
SCRA 425 [1999]), which incidentally is another ponencia
of Mr. Justice Pardo, the majority, with
undersigned ponente dissenting, modified the above
doctrine [Paredes doctrine] by allowing the CSC to appeal
in cases where the respondent is exonerated of the
charges. Nevertheless, in both cases, the Court did
not deviate from the doctrine that the complainant,
being a mere witness for the government, cannot
appeal the decision rendered in the administrative
case. In Paredes, we declared that the complainant is not
the party adversely affected by the decision so that she
has no legal personality to interpose an appeal to the
CSC. In an administrative case, the complainant is a mere
witness. No private interest is involved in an
administrative case as the offense is committed against
the government. (Emphasis supplied)
Preventive suspension
Fidencio Beja Sr. v CA: Definition of Preventive
Suspension
It is imposed during the pendency of an administrative
investigation, preventive suspension is not a penalty in
itself. It is merely a measure of precaution so that the
employee who is charged may be separated, for obvious
reasons, from the scene of his alleged misfeasance while
the same is being investigated.
Thus, preventive suspension is distinct from the
administrative penalty of removal from office such as the
one mentioned in Sec. 8(d) of P.D. No 857.
Ricardo Gloria v. CA (1999)
Preventive suspension pending investigation is not a
penalty. It is a measure intended to enable to enable the
disciplining authority to investigate charges against
respondent by preventing the latter from intimidating or
any way influencing witnesses against him. If the
investigation is not finished and a decision is not rendered
within that period, the suspension will be lifted and the
respondent will automatically be reinstated. If after
investigation respondent is found innocent of the charges
and is exonerated, he should be reinstated.
PART 22
Preventive suspension is not a penalty
It should be distinguished from the administrative penalty
of suspension or dismissal, as the case may be
Yabut v Ombudsman Vasquez
At that time, the vice mayor of Makati was Yabut
Placed under preventive suspension – 60 days
Found guilty of alleged administrative offense
The penalty was suspension of 60 days
Make your weakness your strength
Yabut’s contention: e dati niyo na akong sinuspens ng 60
days e. naserve ko nay an. Quits na!
SC: that is not correct!
The two suspensions are of different nature
Petitioner Yabut urges that his preventive suspension of
82 days should be credited to the penalty of 2-month
suspension imposed on him. A preventive suspension
decreed by the Ombudsman by virtue of his authority
under Section 21 of Republic Act No. 6770, in relation to
Section 9 of Administrative Order No. 07, is not meant to
be a penalty but a means taken to insure the proper and
impartial conduct of an investigation. We have ruled, in a
number of times before, that a preventive suspension may
be ordered even before the charges are heard, as well as
before the official concerned is given an opportunity to
prove his innocence, being merely a measure that is
precisely designed in order not to hamper the normal
course of an investigation through the use of influence
and authority
PRUDENCIO QUIMBO vs.
ACTING OMBUDSMAN MARGARITO GERVACIO
The service of preventive suspension shall not be credited
with the penalty of suspension because they are of
different nature
Not being a penalty, the period within which one is under
preventive suspension is not considered part of the actual
penalty of suspension
Clearly, service of the preventive suspension cannot be
credited as service of penalty. To rule otherwise is to
disregard above-quoted Sections 24 and 25 of the
Administrative Code of 1987 and render nugatory the
substantial distinction between, and purposes of imposing
preventive suspension and suspension as penalty.
Layno v Sandiganbayan
"In all cases, preventive suspension shall not extend
beyond sixty days after the start of said suspension." It
may be recalled that the principle against indefinite
suspension applies equally to national government
officials. So it was held in the leafing case of Garcia v.
Hon. Executive Secretary. According to the opinion of
Justice Barrera: "To adopt the theory of respondents that
an officer appointed by the President, facing
administrative charges, can be preventively suspended
indefinitely, would be to countenance a situation where
the preventive suspension can, in effect, be the penalty
itself without a finding of guilt after due hearing,
contrary to the express mandate of the Constitution and
the Civil Service law." Further: "In the guise of a
preventive suspension, his term of office could be
shortened and he could in effect, be removed without a
finding of a cause duly established after due hearing, in
violation of the Constitution." Clearly then, the policy of
Page 27 of 44

the law mandated by the Constitution frowns at a
suspension of indefinite duration
An indefinite preventive suspension violates due
process and therefore, should be nullified.
In effect, it becomes already the penalty of suspension
Let us outline this one now. There are several laws
governing preventive suspension.
Okay, in the bar, when confronted with a problem
involving preventive suspension.
First thing to do: What was the principal action all about?
REMEMBER that preventive suspension is merely an
incident to an action, whether in connection with an
administrative case or a criminal case
Was it imposed as an incident to an administrative case?
Was it imposed as an incident to a criminal case?
Administrative: more significant laws to consider when we
talk of P.S. in an administrative case:
1. civil service law
2. LGC
3. Ombudsman act of 1989 sec 24
Criminal case:
Sec 13 of RA 3019 – THE anti graft law
I am not saying that it is only law involved but this is the
more important law to consider.
Preventive suspension in an administrative case
What does the Civil service law say when it comes to
preventive suspension?
Maximum duration: 90 days
If investigation has not yet been terminated after 90 days:
you are automatically reinstated.
However, If you contributed to the delay of the
proceedings (nagfile ka ng certiorati etc) that period will
not be included in the computation of the 90-day period
Gloria v CA (1999)
There are thus two kinds of preventive suspension of civil
service employees who are charged with offenses
punishable by removal or suspensions:
(1) preventive suspension pending investigation (§51)
(2) preventive suspension pending appeal if the penalty
imposed by the disciplining authority is suspension or
dismissal and, after review, the respondent is exonerated
What is the significance of knowing the distinction
between the two?
In the payment of backsalaries.
Make your weakness your strength
No compensation was due to preventive suspension
pending investigation. Payment of salaries during the
period of suspension was deleted
Gloria v CA: No Right to Compensation for Preventive
Suspension Pending Investigation Even if Employee is
Exonerated
On the 2nd type of preventive suspension:
You will be paid backwages
Preventive suspension pending appeal is punitive in
nature
Full pay for the period of suspension
Preventive suspension pending investigation, as already
discussed, is not a penalty but only a means of enabling
the disciplining authority to conduct an unhampered
investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect
subsequently considered illegal if respondent is
exonerated and the administrative decision finding him
guilty is reversed. Hence, he should be reinstated with
full pay for the period of the suspension. Thus, §47(4)
states that respondent "shall be considered as under
preventive suspension during the pendency of the appeal
in the event he wins." On the other hand, if his conviction
is affirmed, i.e., if he is not exonerated, the period of his
suspension becomes part of the final penalty of
suspension or dismissal.
Local government code:
Sec 63: for local elective officials
Sec 85: Appointive Local Officials and Employees
Sec 85: by whom? By the local chief executive
He is the disciplining authority of the local government
officials
How long? 60 days.
Let us focus now on elective local officials
Who may impose?
It will depend of the position you are occupuying.
Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective
official of a province, a highly urbanized or an independent
component city;
(2) By the governor, if the respondent is an elective
official of a component city or municipality; or
(3) By the mayor, if the respondent is an elective official
of the barangay.
How long? 60 days
If there are several admin charges in a given year: in no
case shall the preventive suspension go beyond 90 days
Page 28 of 44

Sec 63 must be correlated with Sec 62 (c) of LGC
(c) However, no investigation shall be held within
ninety (90) days immediately prior to any local
election, and no preventive suspension shall be
imposed within the said period. If preventive suspension
has been imposed prior to the 90-day period immediately
preceding local election, it shall be deemed automatically
lifted upon the start of aforesaid period.
Own term: 90-day period ban?
Why? It can be an effective tool for prosecution and
harrassment
Ombudsman act
Section 24. Preventive Suspension. - The Ombudsman or
his Deputy may preventively suspend any officer or
employee under his authority pending an investigation, if
in his judgement the evidence of guilt is strong, and
(a) the charge against such officer or employee involves
(DOG-neglect) dishonesty, oppression or grave
misconduct or neglect in the performance of duty;
(b) the charges would warrant removal from the service;
or (c) the respondent's continued stay in office may
prejudice the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more
than six months, without pay, except when the delay in
the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of
the respondent, in which case the period of such delay
shall not be counted in computing the period of
suspension herein provided.
Masakit yan. Kalahating taon yan.
Civil Service 90 days
LGC Local elective: 60/90 days
Local appointive:60 days
Ombudsman 6 months
Shall not be confused with criminal jurisdiction of
Ombudsman.
In crim cases: ombudsman has no authority to impose
preventive suspension
Sandiganbayan is the proper authority. NOT the
Ombudsman
Preventive suspension in Criminal Case
Sec 13 RA 3019
Section 13. Suspension and loss of benefits. Any public
officer against whom any criminal prosecution under a
valid information under this Act or under the provisions of
Make your weakness your strength
the Revised Penal Code on bribery is pending in court,
shall be suspended from office. Should he be convicted
by final judgment, he shall lose all retirement or gratuity
benefits under any law, but if he is acquitted, he shall be
entitled to reinstatement and to the salaries and benefits
which he failed to receive during suspension, unless in the
meantime administrative proceedings have been filed
against him.
Who may impose the preventive suspension?
THE LAW IS SILENT.
Bakit dinagdagan niyo? Ano kayo, Kongreso?
Luciano v Provincial Governor
The Court
What Court is that?
It depends.
SG 27 or higher: Sandiganbayan
Lower: RTC or MTC
The mandatory act of suspension under Section 13 of the
Anti-Graft and Corrupt Practices Act should be exercised
solely by the court in which the criminal case has
been filed under a valid information, for the following
reasons: (1) Section 13 speaks of two separate and
distinct methods of investigation: one criminal before the
courts of justice, and the other administrative. There is a
recognition in said section that once a criminal case is
filed in court, all other acts connected with the discharge
of court functions should be left to the court. This view
finds statutory support, for under the Act the court is
empowered to punish public officials found guilty with
"perpetual disqualification from public office," and under
Article 30 of the Revised Penal Code, that penalty entails
"deprivation of public offices and employments, even if
conferred by popular election." Suspension being
necessarily included in the greater power of removal, it
follows that the court, which has the power to remove, has
also the power to suspend. (2) Section 13 requires that
there be a valid information as a pre-condition of the
power to suspend, and considering that the determination
of the validity of an information is essentially a judicial
function, and that it is only one who knows the facts upon
which suspension is based who can suspend, it is only the
court that has the power to suspend. (3) Section 5 of the
Decentralization Act of 1967, which provides that" [a]ny
provision of law to the contrary notwithstanding, the
suspension and removal of elective local officials shall be
governed exclusively by the provisions of this section,"
was not meant to include suspension and removal under
the Anti-Graft and Corrupt Practices Act, for, said Section
5 solely embraces administrative investigations.
The preventive suspension is mandatory.
The Court cannot exercise its discretion
BUT NOT AUTOMATIC
It is mandatory but not automatic
Page 29 of 44

Socrates v. Sandiganbayan
This Court has ruled that under Section 13 of the anti-graft
law, the suspension of a public officer is mandatory after
the validity of the information has been upheld in a pre-
suspension hearing conducted for that purpose. This
pre-suspension hearing is conducted to determine
basically the validity of the information, from which the
court can have a basis to either suspend the accused and
proceed with the trial on the merits of the case, or correct
any part of the proceeding which impairs its validity. The
hearing may be treated in the same -manner as a
challenge to the validity of the information by way of a
motion to quash.
Once the information is found to be sufficient in form and
substance, then the court must issue the order of
suspension as a matter of course. There are no ifs and
buts about it. This is because a preventive suspension is
not a penalty. It is not imposed as a result of judicial
proceedings. In fact, if acquitted, the official concerned
shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension. In
view of this latter provision, the accused elective public
officer does not stand to be prejudiced by the immediate
enforcement of the suspension order in the event that the
information is subsequently declared null and void on
appeal and the case dismissed as against him. Taking
into consideration the public policy involved in
preventively suspending a public officer charged under a
valid information, the protection of public interest will
definitely have to prevail over the private interest of the
accused. 29
To further emphasize the ministerial duty of the court
under Section 13 of Republic Act No. 3019, it is said that
the court trying a case has neither discretion nor duty to
determine whether or not a preventive suspension is
required to prevent the accused from using his office to
intimidate witnesses or frustrate his prosecution or
continue committing malfeasance in office
Question: How long?
Again, the law is silent.
Gonzaga v. Sandiganbayan
Applying by analogy, the Civil Service Law – 90 days
X was a municipal mayor. He was charged criminally
before the Ombudsman. Anti-Graft case. Criminal case.
While the Ombudsman was investigating, there came the
election. He ran for Governor. He won.
Preventive suspension order against now Governor X.
Governor X: improperly issued. That offense was
committed when I was a municipal mayor, I am a
Governor now
That is not correct
Make your weakness your strength
Bayot v. Sandiganbayan
The claim of petitioner that he cannot be suspended
because he is presently occupying a position different
from that under which he is charged is untenable. The
amendatory provision clearly states that any incumbent
public officer against whom any criminal prosecution
under a valid information under Republic Act 3019 or for
any offense involving fraud upon the government or public
funds or property whether as a simple or as a complex
offense and in whatever stage of execution and mode of
participation, is pending in court, shall be suspended from
office. Thus, by the use of the word "office" the same
applies to any office which the officer charged may be
holding, and not only the particular office under which
he was charged.
Another situation:
X was a governor. Another Anti-Graft case. While the
Obudsman was investigating, there came the election. He
ran for Congressman and was elected. Ombudsman filed
an anti-graft case. Sandiganbayan placed him under
suspension.
That is an encroachment of the prerogative of the House
or Representatives Sec 16(3) Article VI: 3) Each House
may determine the rules of its proceedings, punish its
Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, suspend or
expel a Member. A penalty of suspension, when imposed,
shall not exceed sixty days.
That contention is not correct.
The suspension imposed by Sandiganbayan is not a
penalty! The one contemplated there is a penalty.
However, pag indefinite suspension, iba nay an. It
becomes punitive in nature.
Part 23
Administrative penalties
Aguinaldo v. Santos
Doctrine of Condonation
The underlying theory is that each term is separate from
other terms, and that the reelection to office operates as
a condonation of the officer's misconduct to the extent of
cutting off the right to remove him therefor.
The Court should never remove a public officer for acts
done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect their
officers.
When a people have elected a man to office, it must be
assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his fault
or misconduct, if he had been guilty of any. It is not for the
court, by reason of such fault or misconduct, to practically
overrule the will of the people.
Page 30 of 44

For elective officers lang yan ah.
Mayor Garcia v. Arturo Mojica
G.R. No. 139043 September 10, 1999
The rationale for this holding is that when the electorate
put him back into office, it is presumed that it did so with
full knowledge of his life and character, including his past
misconduct. If, armed with such knowledge, it still reelects
him, then such reelection is considered a condonation of
his past misdeeds.
This is for administrative cases only. It does not find
application in criminal cases.
THIS DOCTRINE OF CONDONATION HAS BEEN
ABANDONED.
Conchita Carpio-Morales v CA 6th Division
G.R. Nos. 217126-27, November 10, 2015
SC discussed the origin
It is only applied in States where there is a law allowing it.
Besides, the Pascual case (where it was first laid down by
the Courts) was decided under the 1935 Constitution
Do not forget that public office is a public trust.
The abandonment of the doctrine shall be given
prospective application only
What are the known prohibitions?
Article IX-B
SECTION 7. No elective official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure.
Xpn: if he will hold such office in an ex-officio capacity
2nd paragraph
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
2 xpns:
1. if allowed by law
2. or allowed by the primary functions of his position
Sec 5(4) Article XVI: special prohibition on members
of the armed forces
(4) No member of the armed forces in the active service
shall, at any time, be appointed or designated in any
capacity to a civilian position in the Government including
government-owned or controlled corporations or any of
their subsidiaries.
Pag retired na, pwede yun
Make your weakness your strength
Rule on nepotism:
Included in the Civil Service Law itself
Within the 3rd civil degree of any of the ff:
1. appointing authority
2. recommending authority
3. Chief of the Bureau or Office
4. Person exercising immediate supervision over the
appointee
4 situations covered. It is immaterial who the appointing
or recommending authority is.
Exempted from the operation of the rules on nepotism
1. employed in a confidential capacity
2. teachers
3. physicians
4. members of the armed forces
5. Contracts marriage with someone in the same office
during his or her appointement – retention of both
husband and wife may be allowed
INGATAN NIYO YAN PAG LOCAL GOVERNMENT sec
79: up to the 4th degree
In any other case- apply the civil service law – up to the
3rd degree
In the case of Debulgado v civil service commission
Contention: rule on nepotism applies only to original
appointment and not to promotional appointment
The Supreme Court did not agree
It applies to ALL KINDS OF APPOINTMENT IN THE
GOVERNMENT SERVICE. The reason for this is simple:
the law did not make any distinction. If the law does not
distinguish, neither should we.
Laurel V v. Civil Service Commission
Laurel appointed his brother civil security officer. Was
there a violation of the law on nepotism
RULING: NO
It is a confidential employee
Bodyguard yan, pinaganda lang yan.
Ang problema ganito. Provincial Administrator retired. It
was a career position that time. Now, it is a coterminous
position with the appointing authority.
He now designated his brother as the Acting Provincial
Administrator.
Contention of Laurel: I did not APPOINTED HIM. I ONLY
DESIGNATED HIM as acting Provincial Administrator
Page 31 of 44

SC: For purposes of the law on nepotism,
appointment and designation shall be treated as the
same
It seems clear to Us that Section 49 of P.D. No. 807 does
not suggest that designation should be differentiated from
appointment. Reading this section with Section 25 of said
decree, career service positions may be filled up only by
appointment, either permanent or temporary; hence a
designation of a person to fill it up because it is vacant, is
necessarily included in the term appointment, for it
precisely accomplishes the same purpose. Moreover, if a
designation is not to be deemed included in the term
appointment under Section 49 of P.D. No. 807, then the
prohibition on nepotism would be meaningless and
toothless. Any appointing authority may circumvent it by
merely designating, and not appointing, a relative within
the prohibited degree to a vacant position in the career
service. Indeed, as correctly stated by public respondent,
"what cannot be done directly cannot be done
indirectly."
Prohibition on the President
Sec 13(2) Article VII
The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not
during his tenure be appointed as
1. members of the Constitutional Commissions,
2. or the Office of the Ombudsman,
3. or as Secretaries, Undersecretaries, chairmen or heads
of bureaus or offices, including government-owned or
controlled corporations and their subsidiaries.
Civil Service Up to the 3rd degree
LGC Up to the 4th degree
Constitution – on the SPOUSE and relatives –
President up to the 4th degree (see
the offices)
Limitations on the term of office
Article X
SECTION 8. The term of office of elective local officials,
except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of his
service for the full term for which he was elected.
Borja Jr v. COMELEC and CAPCO Jr (1998)
the term limit for elective local officials must be taken to
refer to the right to be elected as well as the right to serve
in the same elective position. Consequently, it is not
enough that an individual has served three consecutive
terms in an elective local office, he must also have
been elected to the same position for the same number of
times before the disqualification can apply
There are two policies embodied in this provision:
Make your weakness your strength
1, to prevent establishment of political dynasties
3. to enhance the freedom of choice of the people
2 conditions must concur for sec 8 Article X to
apply
1. that the local official was elected for 3 consecutive
terms
2. that he has fully served 3 consecutive terms
Borja Jr case
Mayor Capco first elected vice-mayor. In 1989 mayor
borja sr died. Vice mayor became mayor BY OPERATION
OF law. He ran for mayor and won may 1992. 1995 again
won. 1998 he rain again for mayor. It was questioned.
First requisite is absent.
He was NOT ELECTED as mayor for the first term. He
merely continued the term of the late Mayor Borja
Lonzanida v COMELEC
Lonzanida first elected as mayor 1988
1992 ran for mayor and won
1995 ran again for mayor and won
In May 1995 elections, there was an election protest
March 1998: protest was decided against him
May 1998: he ran again
Is he qualified?
How may times was he elected mayor?
TWICE
In the May 1995, he was merely the presumptive mayor.
Eventually, He lost In the election protest
Also, did not fully serve the last term.
JUST APPLY THE TWO CONDITIONS
Mayor H of Puerto Princesa City was first elected Mayor
May 1992, okay?
May 1995, he ran again for Mayor and won.
May 1998 he ran again for mayor and won.
Will he still be qualified to ran again for the May 2001
elections?
OF COURSE NO!
That’s why he ran for Governor. Ang gugulang ng mga to.
Siya mismo alam niya.
2002 mayor H ran again in the recall elections for Mayor.
Is he qualified in the special election for Mayor?
SC: PWEDE YAN
What the Constitution prohibits is the immediate
reelection for the 4th term after the 3rd consecutive term
Page 32 of 44

A recall election is a subsequent election BUT NOT an
immediate election after the 3rd term
Socrates ruling
Term served in the special recall election shall be
considered as one full term for purposes of applying the
disqualification provision
OVERTURNED IN ANOTHER ENBANC RULING:
Mendoza v. COMELEC
QUALIFIED
Not being a full term, a recall term shall not be used for
purposes of disqualification
Wala na yang Socrates Ruling!
But that is a mere obiter dictum there. Ang ruling talaga
dun: the constitution does not prohibit a re-election for 4th
term AS LONG AS it is not immediately after the 3rd
consecutive term.
Aldovino Jr v. COMELEC
During 3rd term- he was suspended
He ran again.
Contention: That was not voluntary renunciation of office
when I was suspended. I did not serve my full term
SC DID NOT AGREE
Was there an interruption? NO
To constitute an interruption, it must constitute LOSS OF
TITLE.
When you are placed under preventive suspension, there
was no loss of title there.
A preventive suspension cannot simply be a term
interruption because the suspended official continues to
stay in office although he is barred from exercising the
functions and prerogatives of the office within the
suspension period. The best indicator of the suspended
official’s continuity in office is the absence of a permanent
replacement and the lack of the authority to appoint one
since no vacancy exists.
To allow a preventively suspended elective official to run
for a fourth and prohibited term is to close our eyes to this
reality and to allow a constitutional violation through
sophistry by equating the temporary inability to discharge
the functions of office with the interruption of term that the
constitutional provision contemplates. To be sure, many
reasons exist, voluntary or involuntary – some of them
personal and some of them by operation of law – that may
temporarily prevent an elective office holder from
exercising the functions of his office in the way that
preventive suspension does. A serious extended illness,
inability through force majeure, or the enforcement of a
suspension as a penalty, to cite some involuntary
examples, may prevent an office holder from exercising
the functions of his office for a time without forfeiting title
Make your weakness your strength
to office. Preventive suspension is no different because it
disrupts actual delivery of service for a time within a term.
Adopting such interruption of actual service as the
standard to determine effective interruption of term under
the three-term rule raises at least the possibility of
confusion in implementing this rule, given the many
modes and occasions when actual service may be
interrupted in the course of serving a term of office. The
standard may reduce the enforcement of the three-term
limit rule to a case-to-case and possibly see-sawing
determination of what an effective interruption is.
Montebon v. COMELEC
First term: 1998-2001
2nd term: 2001-2004
3rd term: 2004-2007
He ran again
During his 2nd term-the Vice Mayor retired. He had to
assume office as Vice Mayor. That is not a voluntary
renunciation. There is now a renunciation. I can ran again
as a Sangguniang Kagawad
SC: CORRECT!
He had to assume office as vice mayor by operation of
law. That is not voluntary renunciation of office.
Relevant provision:
Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected.
Papaano ngayon pag found guilty for an administrative
offense. The penalty was removal from office
Was there an interruption? Is he qualified to run for the 4th
time?
SEC 40(B) OF THE LGC
Section 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years
after serving sentence;
(b) Those removed from office as a result of an
administrative case;
SO HE IS DISQUALIFIED
Not be because of Sec 8 of Article X, but because of sec
40(b) of LGC
Lingating v. COMELEC
SC: The administrative decision must have attained
FINALITY already before disqualification under sec 40(b)
of LGC MAY APPLY
Page 33 of 44

If still subject to pending appeal or certiorari, the
disqualification may not apply
Part 24
How is the vacancy filled?
The law on automatic succession
X ran for Kagawad Sangg. Panglungsod for District 1. He
won
Y won also, but in District 2.
X obtained 5k votes out of 10k registered voters
Y obtained 4.5k votes out of 8k
Ranking shall be determined by the number of votes
required in proportion to the number of registered voters
Sec 44 last paragraph LGC
For purposes of succession as provided in the Chapter,
ranking in the sanggunian shall be determined on the
basis of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each
district in the immediately preceding local election.
X – 50% lang yan
Y – more than 50%
Z obtained 5k votes in the same district- same number of
votes in District 1
44 (c)
c) A tie between or among the highest ranking sanggunian
members shall be resolved by the drawing of lots.
Just read Sec 44. Andyan yan e.
Question:
There are 8 Sangguniang Bayan mambers
The last ranking, the 8th in rank, died
How shall the vacancy be filled up now?
SEC 45
First paragraph: who shall appoint?
(a) Permanent vacancies in the sanggunian where
automatic succession provided above do not apply shall
be filled by appointment in the following manner:
(1) The President, through the Executive Secretary, in the
case of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities and
independent component cities;
(2) The governor, in the case of the sangguniang
panlungsod of component cities and the sangguniang
bayan;
Make your weakness your strength
(3) The city or municipal mayor, in the case of
sangguniang barangay, upon recommendation of the
sangguniang barangay concerned.
BUT the appointee shall be in the same political party.
Farinas v Barba
The last ranking Sangguniang Member resigned. He did
not belong to any political party. Ginawa ni Mayor Barba
nag appoint siya ng tao niya upon recommendation of
Sangguniang Bayan
Si Governor Farinas nag appoint din siya ng tao niya
The appointee of mayor barba? Or the appointee of
governor farinas?
IF NO POLITICAL PARTY:
The local chief executive shall appoint!
Applicable provision:
45
(c) In case or permanent vacancy is caused by a
sanggunian member who does not belong to any political
party, the local chief executive shall, upon
recommendation of the sanggunian concerned, appoint a
qualified person to fill the vacancy.
There are two appointing authorities.
Who is entitled? The appointee of Mayor Barba or the
appointee of Governor Farinas?
SC: NEITHER!!!
45c must be read with Sec 45a
The only difference is that in Sec 45b is that the
sanggunian member belongs to a pol par
The appointing authority under sec 45a must likewise be
the appointing authority in sec 45c
Fact: sangguninang bayan of a component city
So who is the appointing authority?
Governor
It should be Governor Farinas
Kaya lang it should be upon the recommendation of the
sangguninang concerned.
The one who recommended the appointee to Governor
Farinas was not the sangguinang bayan of san Nicholas.
We think that the phrase "sanggunian concerned" in
§45(c) should more properly be understood as
referring to the Sanggunian in which the vacancy is
created. This is in keeping with the policy implicit in
§45(a) (3).
Page 34 of 44

On the other hand, §45(c) must be understood as
providing for the filling of vacancies created by members
who do not belong to any political party. Consequently,
§45 must be construed to mean that —
I. Where the Permanent Vacancy is Caused by a
Sanggunian Member Belonging to a Political Party
A. Sangguniang Panlalawigan and Sangguniang
Panlungsod of highly urbanized cities and independent
component cities — The President, through the Executive
Secretary, upon the nomination and certification of the
political party to which the member who caused the
vacancy belonged, as provided in §45 (b).
B. Sangguniang Panlungsod of component cities and
Sangguniang Bayan — The Governor upon the
nomination and certification of the political party to which
the member who caused the vacancy belonged, as
provided in §45 (b).
III. Where the Vacancy is Caused by a Sanggunian
Member Not Belonging to a Political Party
A. Sangguniang Panlalawigan and Sangguniang
Panlungsod of highly urbanized and independent
component cites — The President, through the Executive
Secretary, upon recommendation of the Sangguniang
Panlalawigan or Sangguniang Panlungsod as the case
may be
B. Sangguniang Panlungsod of component cities and
Sangguniang Bayan — The Governor upon
recommendation of the Sangguniang Panlungsod or
Sangguniang Bayan as the case may be
III. Where the Vacancy is Caused by a Member of the
Sangguniang Barangay — City or Municipal Mayor upon
recommendation of the Sangguniang Barangay
Navarro v. CA G.R. No. 141307 March 28, 2001
The composition of municap govt
Mayor – LAKAS NUCD
VICE –LASKAS NUCD
1st Sangguninang member up to 5th- REFORMA
6TH – LAKAS
7TH – REFORMA
8TH – LAKAS
How many from lakas in SB? 2
Lakas? 6
Mayor died
Vice who belonged to Lakas became mayor
1st SB naging vice
8th spot became vacant.
From what political party?
Lakas: sa amin. He was the one who caused the last
vacancy
Make your weakness your strength
Governor appointed somebody from Reforma
SC: REFORMA
The reason behind the right given to a political party to
nominate a replacement where a permanent vacancy
occurs in the Sanggunian is to maintain the party
representation as willed by the people in the election.
With the elevation of petitioner Tamayo, who belonged to
REFORMA-LM, to the position of Vice-Mayor, a vacancy
occurred in the Sanggunian that should be filled up with
someone who should belong to the political party of
petitioner Tamayo. Otherwise, REFORMA-LM’s
representation in the Sanggunian would be diminished.
To argue that the vacancy created was that formerly held
by Rolando Lalas, a LAKAS-NUCD-Kampi member,
would result in the increase of that party’s representation
in the Sanggunian at the expense of the REFORMA-LM.
This interpretation is contrary to the letter and spirit of the
law and thus violative of a fundamental rule in statutory
construction which is to ascertain and give effect to the
intent and purpose of the law. As earlier pointed out, the
reason behind par. (b), section 44 of the Local
Government Code is the maintenance party
representation in the Sanggunian in accordance with the
will of the electorate.
The "last vacancy" in the Sanggunian refers to that
created by the elevation of the member formerly
occupying the next higher in rank which in turn also had
become vacant by any of the causes already enumerated.
The term "last vacancy" is thus used in Sec. 45 (b) to
differentiate it from the other vacancy previously created.
The term by no means refers to the vacancy in the No. 8
position which occurred with the election of Rolando Lalas
to the seventh position in the Sanggunian. Such
construction will result in absurdity.
Gamboa Jr. v. Aguirre JR (1999)
Governor went abroad
Designated Vice-G as Acting Governor. Went to preside
at the Sangguniang Panlalawigan
(in law, the presiding officer is Vice G)
SC’s Ruling:
Being the Acting Governor, the Vice-Governor cannot
continue to simultaneously exercise the duties of the latter
office, since the nature of the duties of the provincial
Governor call for a full-time occupant to discharge them.
Such is not only consistent with but also appears to be the
clear rationale of the new Code wherein the policy of
performing dual functions in both offices has already been
abandoned. To repeat, the creation of a temporary
vacancy in the office of the Governor creates a
corresponding temporary vacancy in the office of the
Vice-Governor whenever the latter acts as Governor by
virtue of such temporary vacancy. This event constitutes
an "inability" on the part of the regular presiding officer
(Vice Governor) to preside during the SP sessions, which
Page 35 of 44

thus calls for the operation of the remedy set in Article
49(b) of the Local Government Code — concerning the
election of a temporary presiding officer. The continuity
of the Acting Governor's (Vice Governor) powers as
presiding officer of the SP is suspended so long as
he is in such capacity.
Who shall now preside at SP session?
Under Section 49(b), "in the event of the inability of the
regular presiding officer to preside at the sanggunian
session, the members present and constituting a quorum
shall elect from among themselves a temporary presiding
officer."
Do not say the highest SP member! You will go wrong.
Because this is only a temporary vacancy. You will be
correct if it is a permanent vacancy. E temporary vacancy
lang yan e. Do not apply by analogy the rule on permanent
vacancy if there is a law governing temporary vacancy.
Dito meron e!
Part 25
Section 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years
after serving sentence;
Commentary:
This is not a perpetual disqualification. Partial
lang. Within 2 years after the service of their
sentence
Offense involving moral turpitude
Acts of Lasciviousness
Violation of Anti-Fencing law even if punished by
special law – malum prohibitum
(b) Those removed from office as a result of an
administrative case;
Lingating case: must have attained finality. I told
you already
(c) Those convicted by final judgment for violating the oath
of allegiance to the Republic;
(d) Those with dual citizenship;
Mercado v manzano: refers to dual allegiance
(e) Fugitives from justice in criminal or non-political cases
here or abroad;
Marquez v. COMELEC
Marquez wants Rodriguez qualified – on ground
of “fugitive form justice” – offense in California
Make your weakness your strength
Gov. Rodriguez: I have not yet been convicted by
final judgment from any of those criminal cases in
California
THE SC DID NOT AGREE WITH GOV RODRIGUEZ.
Petitioner's position is perspicuous and to the point. The
law, he asseverates, needs no further interpretation and
construction. Section 40(e) of Republic Act No. 7160, is
rather clear, he submits, and it disqualifies "fugitive from
justice" includes not only those who flee after conviction
to avoid punishment but likewise those who, after
being charged flee to avoid prosecution. This definition
truly finds support from jurisprudence
Rodriguez v. COMELEC
What is controlling is the intent to evade the jurisdiction of
the Court
Intent to evade on the part of a candidate must therefore
be established by proof that there has already been a
conviction or at least, a charge has already been filed, at
the time of flight. Not being a "fugitive from justice" under
this definition, Rodriguez cannot be denied the Quezon
Province gubernatorial post.
Here, the cases were filed against him in California 6
months after he already returned to the Philippines
NO INTENT TO EVADE.
(f) Permanent residents in a foreign country or those who
have acquired the right to reside abroad and continue to
avail of the same right after the effectivity of this Code;
Merely reinforces Sec 68 of OEC
and
(g) The insane or feeble-minded. – pinakamadali yan.
Marami nito sa Kongreso
Recall
SEC 69-74 YAN
MADALING TANDAAN YAN 69!
Only one ground for Recall: LOSS OF CONFIDENCE
That is a political question. Therefore, a forbidden territory
on the part of the Court.
Recall is not the political question, but it is the loss of
confidence as a ground for recall
2 STAGES
1. Initiation
2. Recall election
In that Recall election, the official sought to be recalled
AUTOMATICALLY becomes a candidate
He is expressly prohibited from resigning. He is forced to
fight it out.
Page 36 of 44

How do you initiate recall?
Previously, there are 2 ways:
1. preparatory recall assembly; or
2. petition – 25%
THAT WAS BEFORE.
RA 9244
Abolished Preparatory Recall Assembly as a mode
There is only one way: PETITION
How many ? nagbracketing nay an, wala na yang 25%
If number of registered voters: (BRACKETING)
Does not exceed 20,000 25%
Exceeds 20k but not 20%
more than 75k
Exceeds 75k but not 15%
more than 300k
Exceeds 300k 10%
Angobung v. COMELEC
NOTE: wala pang 9244 nito
approved the Petition for Recall filed and signed by only
one registered voter — herein private respondent Ma.
Aurora Siccuan de Alban, against petitioner — incumbent
Mayor Ricardo Angobung;
There was a petition for recall 1 year after. Only one
signatory: KALABAN NIYA
E yung COMELEC INAKSYUNAN!
Nagschedule yung COMELEC ng signing day. On that
day, all those who wanted to file a recall shall sign.
Mayor Angobung went SC via petition for certiorari
SC: OF COURSE HE WAS SUSTAINED
We cannot sanction the procedure of the filing of the recall
petition by a number of people less than the foregoing
25% statutory requirement, much less, the filing thereof
by just one person, as in the instant case, since this is
indubitably violative of clear and categorical provisions of
subsisting law.
Section 74. Limitations on Recall. -
(a) Any elective local official may be the subject of a recall
election only once during his term of office for loss of
confidence.
(b) No recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year
immediately preceding a regular local election.
- THAT SIMPLY MEANS that you could only subject him
to recall ONLY DURING THE 2ND YEAR OF THIS TERM
Again, Angubong v COMELEC
Make your weakness your strength
Paras v COMELEC
He was a Punong Barangay there was a petition calling
for his recall. Special recall election for punong barangay
was scheduled. Ang problema inisechedule na ang
National SK elections.
Contention: it falls within the 1-year prohibitory period. An
SK election is a regular local election
THE SC DID NOT AGREE
construe regular local election as one referring to an
election where the office held by the local elective official
sought to be recalled will be contested and be filled by the
electorate.
Angubong v. COMELEC
1 year prohibition also will not apply.
Private respondent is correct in saying that in the light of
our pronouncement in Paras v. COMELEC, the recall
election scheduled on December 2, 1996 in the instant
case cannot be said to be barred by the May 12, 1997
Barangay Elections. In construing the meaning of the
term, "regular local election" in Section 74 of the Local
Government Code of 1991 which provides that "no recall
shall take place within one (1) year . . . immediately
preceding a regular local election," we ruled that for the
time bar to apply, the approaching regular local
election must be one where the position of the official
to be recalled, is to be actually contested and filled by
the electorate. Thus, in the instant case where the time
bar is being invoked by petitioner mayor in view of the
approaching Barangay Elections in May 1997, there can
be no application of the one year bar, hence no invalidity
may be ascribed to Resolution No. 96-2951 on this
ground.
Eminent domain – can even be delegated to quasi-public
corporations
Police Power:
1. Lawful purpose
2. Lawful means
How do you detect if what is involved is an exercise of
police power or the power of eminent domain?
Purpose of police power: to destroy the property
Eminent domain: only private properties, purpose is to
convert the property to public use
In expropriation of lands, there are two stages:
First stage: Determination of the authority of the
expropriating agency
Page 37 of 44

Court will issue order of condemnation
Second stage: Determination of just compensation
Implementation of agrarian reform law: includes the
exercise of both police power and power of eminent
domain
ASSOCIATION OF SMALL LANDOWNERS IN THE
PHILIPPINES, INC. v. SECRETARY OF AGRARIAN
REFORM
G.R. No. 78742 July 14, 1989
Police power: retention limit
Eminent domain: excess of retention limit will be taken
and sold to beneficiaries.
The cases before us present no knotty complication
insofar as the question of compensable taking is
concerned. To the extent that the measures under
challenge merely prescribe retention limits for
landowners, there is an exercise of the police power for
the regulation of private property in accordance with the
Constitution.
But where, to carry out such regulation, it becomes
necessary to deprive such owners of whatever lands they
may own in excess of the maximum area allowed, there
is definitely a taking under the power of eminent domain
for which payment of just compensation is imperative. The
taking contemplated is not a mere limitation of the use of
the land. What is required is the surrender of the title to
and the physical possession of the said excess and all
beneficial rights accruing to the owner in favor of the
farmer-beneficiary. This is definitely an exercise not of the
police power but of the power of eminent domain.
ERICTA V CITY GOVERNMENT
Ordinance: At least six (6) percent of the total area of the
memorial park cemetery shall be set aside for charity
burial of deceased persons who are paupers
Contention: it violates due process
QC city government: police power
RULING:
THIS IS AN INVALID EXERCISE OF THE POWER OF
THE EMINENT DOMAIN.
There is no reasonable relation between the setting aside
of at least six (6) percent of the total area of an private
cemeteries for charity burial grounds of deceased
paupers and the promotion of health, morals, good order,
safety, or the general welfare of the people. The
ordinance is actually a taking without compensation of a
certain area from a private cemetery to benefit paupers
who are charges of the municipal corporation. Instead of
building or maintaining a public cemetery for this purpose,
the city passes the burden to private cemeteries.
Make your weakness your strength
Part 26
Case:
: free of charge newspaper spaces for COMELEC for all
candidates
RULING:
Again, invalid exercise of power of eminent domain
Mahalaga yang Section 9 (ARTICLE III)
Is that a right? It is more of a limitation on the power of
eminent domain.
U.S. v. Causby
Taking may include impairment of the use of the property
to which it is intended
When we speak of taking in the constitutional sense, it is
not limited to the actual physical dispossession of the
property
In this case, yung lupa niya devoted poultry. Government
made an airport beside his property. Sa ingay nun,
nagugulat mga manok niya! Ayaw na mangitlog!
Is he entitled to payment of just compensation?
US SUPREME COURT: YES!
CAMARINES NORTE ELECTRIC COOPERATIVE, INC.
(CANORECO) v. CA
G.R. No. 109338 November 20, 2000
Yung mga linya ng meralco, kung san san dumadaan yan.
Ngayon, kung yung lupa mo tinayuan ng linya ng
kuryente, pwede k aba magtanim ng mga puno? E lupa
mo yan, titulado yan! You are deprived of the use and
enjoyment of the property
Ginawa ng may-ari – pinutol yung poste. Ano nangyari?
E di walang kuryente sa buong lugar
SC: The acquisition of an easement of a right-of-way
falls within the purview of the power of eminent
domain.
However, there is an impairment of the use of property-
you are entitled to just compensation
One of them is not even a right, yung Section 9. It is a
limitation on the power of eminent domain.
SECTION 15
Inulit sa Sec 18 of Article VII
Forget sec 9 and 15. Bente na lang. Ang dali dali niyan e.
What kind of rights?
Civil and Political Rights
Page 38 of 44

They are limitations of the power of the State
4 sections of Bill of rights are governed by the
Exclusionary Rule
Incompetent Evidence!
SEC 2 right against unreasonable search and seizure
SEC 3 privacy of communication and correspondence
SEC 12 custodial investigation
SEC 17 the right against self-incrimination
It becomes the fruit of the poisonous tree. They are
excluded by the Constitution. They are incompetent
evidence.
They will not be admissible for any purpose and for any
proceeding.
First 11 sections: civil and political rights in general
12 onwards: it now has focused on the rights of the
accused. The focus has narrowed!
12: custodial investigation
13 bail
14 during trial
15 privilege of the writ
16 speedy disposition of cases
17 right against self-incrimination
18 involuntary servitude
19 prohibition against cruel, excessive, inhumane
punishment
20 non-imprisonment for non-payment of debt
21 right against double jeopardy
22 prohibition on ex post facto law and bill of attainder
Oh, ano yan? Rights of the accused!
You must correlate it with your criminal procedure.
Void for vagueness doctrine:
Violates due process
What is it?
It is void because it is vague!
Ganun lang
Why is it vague?
Because the law lacks comprehensible standards so that
men of common intelligence would necessarily guess as
its meaning
Repugnant to the constitution in two respects:
(1) violates due process as it fails to give persons due
notice of what conduct to avoid
(2) unbridled discretion- arbitrary flexing of the
Government muscle
Make your weakness your strength
It strikes deep into the essence of due process.
What aspect of due process? SUBSTANTIVE
Procedural – the manner by which the law is to be
enforced: notice and hearing or the opportunity to be
heaed.
Substantive – the law itself must be fair, reasonable, and
just
The act must be UTTERLY vague on its face that it cannot
be clarified either by a saving clause or by statutory
construction
It might be imperfectly crafted only.
Balikan muna natin 4 sections governed by exclusionary
rule:
Sec 2: RIGHT AGAINST UNREASONABLE
SEARCHES, SEIZUES, AND ARREST
Not all arrest, search, and seizure are prohibited. ONLY
unreasonable ones.
When do you consider an arrest, search or seizure to be
valid?
GR: There must be a search warrant or warrant of arrest
What are the requisites of a valid search warrant or
warrant of arrest?
1. probable cause
2. determined personally by the judge
3. after examination under oath of the complainant and
the witnesses he may produce (not of the accused!)
4. particularly describing the place to be searched or the
persons or things to be seized
Stonehill v. Diokno
A general warrant will not do.
Facts: Search warrant “for violation of the Tariff and
Customs Code”
SC: teka muna! Di pwede yan! Ang daming offenses sa
tariff and customs code
Because a general warrant partakes of a nature of a
fishing expedition for evidence by the State.
It must always be issued be in connection with a
specific offense.
Take note: ONLY a judge can issue warrant of arrest or
search warrant. Nobody else. Not even the President of
the Philippines.
1935 Consti: copied from US
Page 39 of 44

Nung time ni President Marcos, he had that amendment!
Dinagdagan, “not only a judge can issue warrant of arrest,
and such other officers as may be authorized by law”
So bumalik tayo sa 1935 Constitution
Salazar v Takoso
Labor Code provision authorizing Sec of Labor issuing a
warrant of arrest in illegal recruitment cases –
UNCONSTITUTIONAL
PART 27
Makasiar
Crespo v. Mogul
Determination of probable cause
Soliven v Makasiar
That is an executive function. It belongs to the Prosecutor
– under the DOJ – under the executive branch
For the purpose of issuing a warrant of arrest/search
warrant- judicial function
The judge is not bound by the finding of probable cause
by the Constitution because he is mandated by the
Constitution to determine it PERSONALLY. He cannot
abdicate it.
He cannot merely rely on the finding of probable cause of
the prosecutor.
If he wanted to be faithful to the Constitution, he should
determine the probable cause PERSONALLY
There are two determinations of probable cause
First of all, how is a criminal action commenced?
It is commenced by the filing of criminal complaint
Where do you file it?
Prosecutor’s Office
If there is no private offended party? The appropriate law
enforcement officers will file the complaint.
Once complaint is filed, what will the prosecutor do? HE
WILL CONDUCT PRELIMINARY INVESTIGATION – the
prosecutor determines the existence of probable cause
for the purpose of filing the criminal Information in Court.
Crespo v. Mogul
Before info is filed – executive
Once filed – it is automatically converted into a judicial
proceeding
Nobody can dictate the judge of how he should dispose
of the case.
Otherwise, it will violate the rule on separation of powers
Development in this area
Make your weakness your strength
Government of USA v Judge Purganan
Before a judge issues a warrant of arrest on an extraditee,
is prior notice and hearing required? NO
1. sec 6 pd 1069 “extradition law” : the word used is
“immediately”
2. constitutional sec 2 of bill of rights
Even sec 2 of bill of rights did not require prior notice and
hearing. THAT IS NEVER A REQUIREMENT
Distinguish between Judicial due process and
Administrative due process
Duration of:
Search warrant: 10 days
Warrant of arrest: no duration
Can you serve them in a foreign country?
Of course no!
What are the characteristics of a criminal law??
TERRITORIAL!
Kahit na may extradition treaty.
What is an ex post facto law?
Penal law that is given retroactive effect that is prejudicial
to the accused
Instances of valid warrantless arrest/search/seizure
BUT these are the exceptions. Do not make them the
GR
Sec 5 Rule 113 of the Rules of Court
Part 28
1. in flagrante delicto
2. arrest in hot pursuit
3. escapee/fugitive from justice
Valid warrantless searches
1. incidental to a lawful arrest
Plain view
Must be limited to the immediate vicinity of the arrest
Must be inadvertent
Must be immediately apparent to him that it is unlawful
Checkpoints
Restriction on movement
May violate right of the people against unreasonable
searches and seizures
Balmonte v. de villa
-kakatapos pa lang ng coup d’etat that time
Abnormal situation!
Kaya pinayagan ng Supreme Court
-valid exercise of the State of its police power
Right of the state to defend itself not only against external
enemies, but also internal enemies
Very stringent rules on searches on checkpoints:
Page 40 of 44

1. must be pre-announced
2. must be stationery
3. limited to only visual search, usually with the use of
flashlights
DO NOT USE THE TERM “PLAIN VIEW” VISUAL
SEARCH IS THE RIGHT TERM
Intrusive search is NOT allowed.
Consented search: for obvious reasons.
Search of a moving vehicle – pag nagpasearch warrant
ka pa aba baka nasa Tarlac na yang pinasearch mo
Stop and Frisk Search – Terry SEARCH
Terry v Ohio
Is he performing overt actions committing an offense?
WALA
What justifies a terry search?
The interest of effective crime prevention and detection
Limited to the TAPPING DOWN OF THE OUTER
CLOTHING OF PERSONS for weapons that might be
used against him and other persons nearby
Manalili v CA
Interest of crime prevention and detection allows a police
officer to approach a person … even though there is
insufficient probable cause to take an actual arrest
In terry v ohio, are they committing an offense? Of course
none. Unless you tell me that merely looking at a store is
an offense.
Yun nga. Effective crime prevention and detection allows
that.
Just remember in Terre Search, the police officer
does not have a probable cause to make an arrest.
AGAIN, what justifies it is the interest of crime
prevention and detection and for investigating
possible criminal behavior
Warrantless searches at airports
People v Lila Johnson December 18 2000
Citing American case of Katz v United States
You have no reasonable expectation of privacy there in
view of increase concern over hijacking and terrorism
Otherwise, DO NOT TRAVEL BY AIR!
Facts
Lila Johnson was an American tourist – pabalik na siya sa
America- chinecheck in na niya luggage niya sa NAIA,
dumaan siya dun sa metal detector, nag-alarm. Pagbeep
na ganun, sinearch siya ngayon. Kinapkapan siya.
Make your weakness your strength
Felt something bulging. She said, that was an additional
panty girdle because she just had an ectopic pregnancy
The officer was not convinced. Went to superior.
Went to the nearby CR. STRIP SEARCH. The said panty
girdle are bags of shabu
SC: THAT WAS VALID
People v. Susan Canton
Sc is more specific there. Another instance of valid
warrantless search at airports
Administrative searches under the Building Code and
under the Fire Code
- do NOT apply the strict probable cause requirement
SJS v. Dangerous Drugs Board
Questioned mandatory drug testing under RA 9165
Ponente: CJ Corona
SC: valid warrantless search
Miranda v. Arizona
When you are undergoing custodial investigation, are you
already an accused? NO
You are a SUSPECT, NOT AN ACCUSED.
Sec 14: those are the rights of the accused during trial
Sec 12: you are not yet an accused! Let me highlight on
that
WHAT ARE YOUR MIRANDA RIGHTS/CUSTODIAL
INVESTIGATION RIGHTS?
1. right to be informed
2. right to be informed that he has the right to remain silent
3. right to be informed of the right to have competent and
independent
4. right to be informed that if he cannot afford the services
of counsel, he must be provided with one
5. right to be informed that rights may be waived provided
it is in writing and in the presence of counsel
But the first terminates the rest. It is incumbent upon the
police officers to apprise you of these rights before they
beign with the questioning
The kind of information contemplated by Section 12
It should be a MEANINGFUL information conveyed to the
suspect in a language or dialect known to and understood
by him
Qualities of counsel
1. Must be independent
2. Must be competent
The two must go hand-in-hand
The prosecutor cannot assist him. He may be very
competent but he is not the independent counsel
Page 41 of 44

contemplated by section 12. He represents an interest
adverse to the accused
Role of counsel in sec 12: merely gives advice to the
suspect
Role of counsel In sec 14: counsel speaks on behalf of
the accused
Development in this area:
People v Obrero
There are two types of involuntary or coerced
confessions
1. confession obtained through torture or third-degree
methods– contemplated by sec 12 par 2
2. confession without the benefit of Miranda warnings –
contemplated by Sec 12 par 1
Why is it important to know the distinction between
the two?
Lies in the application of presumption
If the extra j confession was obtained through torture or
third-degree methods: the presumption was that it was
VOLUNTARILY GIVEN
BOP lies on the part of the accused.
The police enjoys the presumption of regularity of
performance of duties
If extra-j was obtained without the benefit of Miranda
warnings
- the presumption is that it was psychologically coerced
- BOP lies on the part of the police and the prosecution
th
4 paragraph of Section 12:
RA 7438 enacted pursuant to it- Special Penal Law-
malum prohibition
Sec 17: right against self-incrimination
Philosophical underpinning of this right: in one hand, you
have the State. On the other, the accused.
In the beginning, the battle is unequal. He is pitted against
the offices of the State. The accused is alone.
To make equal the unequal, more or less ganun.
The state must come up with an evidence other than the
one extracted from his lips.
It is essentially a humanist law.
Application: only to testimonial compulsion
Not the inclusion of his body in evidence where it be
material
Morphine forced out of the mouth of the accused: US v
Ong sio ong?
Make your weakness your strength
An accused in a rape case, can he be forced to undergo
blood testing?
YES!
Women in adultery case, can she be compelled to
undergo pregnancy test?
YES
What is actually prohibited is the physical and moral
compulsion to extort communication from the
accused, Not the inclusion of his body in evidence
where it be material
accused in falsification case, can he be compelled to
produce specimen signature?
NO.
In ong sio ong, the evidence is already there. He was not
made to produce it. Object evidence yan e. Naroon nay
an eh! He was not compelled to produce it
In falsification case- with every stroke of the pen, he is
compelled to produce the very evidence that will hang
him. Writing is not a purely mechanical act. It requires the
use of intellect
This can be invoked in administrative proceedings
that partake of a criminal nature
Pascual case
- charged of medical malpractice – before Board of
Medicine
- he invoked his right against self-incrimination
This can also be invoked in inquiries in aid of legislation.
This can be also invoked in impeachment proceedings.
Immunity Statutes
For examples, he agreed to testify against his co-accused
and enjoyed some kind of immunity? Can he still validly
refuse to testify on the ground of self-incrimination?
NO MORE!
That is the very purpose of the immunity statute. You
are given some kind of immunity in exchange of his
testimony
You may be cited in contempt and the immunity may be
revoked.
What is the nature of the immunity statute? Is this a
bonanza of the government?
Mapa Jr. v Sandiganbayan
THIS IS NOT A BONANZA FROM THE GOVERNMENT.
Those given the privilege of immunity. They paid a high
price for it – the surrender of their precious right to be
silent.
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 Make your weakness your strength

That is why they are to be liberally interpreted in favor of Procedural

the accused. 2 types: (1) Judicial (2) Administrative
The government is given the right to solve crimes but it Extraditional due process
must do it rightly. Secretary of Justice v. Honorable Ralph Lantion
It is a dangerous proposition.
What is extradition?
Di yan utang na loob sa gobyerno. May consideration yan. Regarded as a form of jurisdictional assistance.
Your life is on the line.
X killed Y in the Phillipines. X escaped to Thailand. Can
Thus, it should be liberally interpreted in favor of the we send agents of NBI to arrest X there in Thailand?
individual.
SEC 4
The right to privacy of communication and Freedom of speech
correspondence Freedom of expression
- limited concept of privacy Freedom of the press
Freedom of assembly
Is their really a constitutional right to privacy? YES
4 aspects of freedom from the press (PSIC)
Ople v. Torres 1. Freedom from prior restraint
After all, the essence of privacy is the right to be let alone 2. freedom from subsequent punishment
3. the freedom of access to information
Morfe v Motu 4. the freedom of circulation
We adopted the Griswald v Connecticut
Enshrined in several parts of the consi Freedom of prior restraint or censorship
1. Content-neutral: restriction is not directed against the
Sec 1,2,6,8, 17 speech itself, only as to the incidents of the speech, like
the manner, the time, and place of the speech
Secrecy of bank deposits
Privileged communication 2. Content-based: against the speech itself or the
Intellectual property law contents of the speech
Anti-wire tapping
etc CONTENT-BASED: CLEAR AND PRESENT DANGER
TEST!
Alejano v Cabuhay
Oakwood mutineers – kinulong sila kahit di pa convicted. We now live in the era of clear and present danger rule
Even their communications pinapakialamanan
Before kasi: dangerous tendency rule
Their right to privacy
- part of reasonable prison regulation Di porket the restriction is content-based, unconstitutional
yan!
But communication to lawyers must be opened in the
presence of the prisoners themselves, but they shall not Content-based restriction is censorial in character. It is a
read them – privileged communication! gag.
Not all content-based restrictions are prohibited.
For other communication, pwedeng buksan yan For a government to justify a content-based restriction,
that is wher you apply the clear and present danger rule
Part 29
Section 1 If content-neutral: for the government to justify, it is
1. DUE PROCESS CLAUSE enough to point out the substantive evil which the state
2. EQUAL PROTECTION CLAUSE sought to oppressed
- To apply the clear-and-present danger test to such
If what is involved is the act of the Govt that is regulatory measures would be like using a sledgehammer
confiscatory/unreasonable –invoke the right to due to drive a nail when a regular hammer is all that is needed.
process (ABS-CBN Broadcasting Corp. v. Commission on
Elections, G.R. No. 133486, [January 28, 2000], 380 PHIL
EPC: discriminatory act of the Government 780-804)

Substantive DP: law itself is FAIR, REASONABLE, JUST Rally may be held even without a permit
Is it fair? Is it reasonable? Is it just? 1. private property
2. school campus

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 Make your weakness your strength

3. freedom park

Political rallies during the campaign period – Omnibus

Election code will govern

BP 880- CONTENT-NEUTRAL LANG YAN. Bayan v.

Erminta

Police should observe maximum tolerance

- highest degree of restraint

The Diocese of Bacolod v. Commission on Elections,

G.R. No. 205728, [January 21, 2015]
Size does matter

The form of expression is just as important as the

information conveyed that it forms part of the expression

Austria v NLRC
He is a pastor. Nagsimula ito sa chismis e. winaldas daw
ng asawa niya yung pera ng simbahan. He confronted the
“source” – his religious superior. Sinuntok niya

OLITICAL LAW; SEPARATION OF CHURCH AND

STATE; ELUCIDATED. — The rationale of principle of
separation of church and state is summed up in the
familiar saying, "Strong fences make good neighbors."
The idea advocated by this principle is to delineate the
boundaries between the two institutions and thus avoid
encroachments by one against the other because of a
misunderstanding of the limits of their respective
exclusive jurisdictions. The demarcation line calls on the
entities to "render therefore unto Ceasar the things that
are Ceasar's and unto God the things that are God's."
While the State is prohibited from interfering in purely
ecclesiastical affairs, the Church is likewise barred from
meddling in purely secular matters.

2. ID.; ID.; ECCLESIASTICAL AFFAIR; ELUCIDATED. —

An ecclesiastical affair is "one that concerns doctrine,
creed, or form of worship of the church, or the adoption
and enforcement within a religious association of needful
laws and regulations for the government of the
membership, and the power of excluding from such
associations those deemed unworthy of membership."
Based on this definition, an ecclesiastical affair involves
the relationship between the church and its members and
relate to matters of faith, religious doctrines, worship and
governance of the congregation. To be concrete,
examples of this so-called ecclesiastical affairs to which
the State cannot meddle are proceedings for
excommunication, ordinations of religious ministers,
administration of sacraments and other activities with
attached religious significance.

||| (Austria v. National Labor Relations Commission, G.R.

No. 124382, [August 16, 1999], 371 PHIL 340-362)

MTD – lack of jurisdiction on illegal dismissal case on the

ground of separation of the church and the state

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