2018 BAR REVIEWER IN

ADMINISTRATIVE LAW,
PUBLIC OFFICERS,
ELECTION LAW, &
LOCAL GOVERNMENT

By: Atty. Enrique V. dela Cruz, Jr.

ADMINISTRATIVE LAW
• Is the Boy Scouts of the Philippines a Quasi-Public
Corporation?

• A: NO. The BSP is a public corporation or a government

agency or instrumentality with juridical personality, which
falls within the audit jurisdiction of the COA.
• Not all corporations, which are not government owned or
controlled, are ipso facto to be considered private
corporations as there exists another distinct class of
corporations or chartered institutions which are otherwise
known as "public corporations."
• These corporations are treated by law as agencies or
instrumentalities of the government which are not subject to
the tests of ownership or control and economic viability but
to different criteria relating to their public purposes/interests.
[BSP v. COA, G.R. No. 177131. June 7, 2011].
 IS MIAA A GOCC OR INSTRUMENTALITY?
• MIAA is not organized as a stock or non-stock corporation. MIAA
is not a stock corporation because it has no capital stock divided
into shares. MIAA has no stockholders or voting shares.
• Under its Charter, MIAA does not have capital stock that is
divided into shares. MIAA has capital but it is not divided into
shares of stock. MIAA has no stockholders or voting shares.
Hence, MIAA is not a stock corporation. MIAA is also not a non-
stock corporation because it has no members.”
• What then is the legal status of MIAA within the National
Government? MIAA is a government instrumentality vested with
corporate powers to perform efficiently its governmental
functions. MIAA is like any other government instrumentality, the
only difference is that MIAA is vested with corporate powers.
• MIAA vs. CA, 495 SCRA 591 Mactan-Cebu
(2006);
International Airport Authority (MCIAA) v. City of Lapu-
Lapu, 757 SCRA 323 (2015)
 Is the MIAA subject to real property tax?
• NO. MIAA is not a GOCC but an “instrumentality” of the National
Government, and, (b) the real properties of MIAA are owned by
the Republic of the Philippines and thus exempt from real estate
tax.
• What about the collection of terminal fees and other charges?
(Mactan Cebu vs. Judge Marcos, 1996)
• “The fact that the MIAA collects terminal fees and other charges
from the public does not remove the character of the Airport
Lands and Buildings as properties for public use.
• “The Airport Lands and Buildings of MIAA are devoted to public
use and thus are properties of public dominion. As properties of
public dominion, the Airport Lands and Buildings are outside the
commerce of man.”
• MIAA vs. CA, 495 SCRA 591 (2006); Mactan-Cebu
International Airport Authority (MCIAA) v. City of Lapu-
Lapu, 757 SCRA 323 (2015)
Is the GSIS a GOCC, therefore subject to real property tax?
• NO. GSIS is not a GOCC but an “instrumentality” of the
National Government. GSIS’ capital is not divided into unit
shares. Also, GSIS has no members to speak of.
• The real properties under GSIS’s name are likewise owned
by the Republic. The GSIS is but a mere trustee of the
subject properties which have either been ceded to it by the
Government or acquired for the enhancement of the system.
• This particular property arrangement is clearly shown by the
fact that the disposal or conveyance of said subject
properties are either done by or through the authority of the
President of the Philippines.
• GSIS v. City Treasurer, 23 December 2009
• NOTE. This overturns the ruling in City of Davao v. RTC,
467 SCRA 280 (2005), wher the SC declared the GSIS
liable for real property taxes.
May the DOJ issue an administrative order consolidating
all pending cases against the same respondents?
• YES. The consolidation of the cases against Delos
Angeles, Jr., et al. from various venues was ordered
obviously to obtain expeditious justice for the parties
with the least cost and vexation to them.
• Inasmuch as the cases filed involved similar or related
questions to be dealt with during the preliminary
investigation, the Secretary of Justice rightly found the
consolidation of the cases to be the most feasible
means of promoting the efficient use of public
resources and of having a comprehensive investigation
of the cases.
• Spouses Dacudao v. Secretary of Justice, G.R. No.
188056, January 08, 2013
When the DOJ reviews the finding of probable cause of
fiscals, is it exercising quasi-judicial powers?
• NO. The prosecutor in a preliminary investigation does not
determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions.
• Preliminary investigation is merely inquisitorial, and is often the
only means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether
a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof.
• While the fiscal makes that determination, he cannot be said to
be acting as a quasi-court, for it is the courts, ultimately, that
pass judgment on the accused, not the fiscal.
• SANTOS, et al. v. WILSON GO, G.R. No. 156081, 19 October 2005,
When the DOJ reviews the finding of probable cause of
fiscals, is it exercising quasi-judicial powers?
• NO. A preliminary investigation is not a quasi-judicial proceeding
since the prosecutor in a preliminary investigation does not
determine the guilt or innocence of the accused.
• A quasi-judicial agency performs adjudicatory functions such that
its awards, determine the rights of parties, and their decisions
have the same effect as judgments of a court.
• Such is not the case when a public prosecutor conducts a
preliminary investigation to determine probable cause to file an
information against a person charged with a criminal offense, or
when the Secretary of Justice is reviewing the former’s order or
resolutions.
• A preliminary investigation thus partakes of an investigative or
inquisitorial power for the sole purpose of obtaining information on
what action of a judicial nature may be taken. (Atty. Alice
Odchigue-Bondoc v. Tan Tiong Bio, G.R. No. 186652, 06 October
2010)
When the Office of the Mayor issues notices /demolition
orders, is it exercising quasi-judicial powers?
• YES. Under existing laws, the office of the mayor is given powers not
only relative to its function as the executive official of the town. It has
also been endowed with authority to hear issues involving property
rights of individuals and to come out with an effective order or resolution
thereon. In this manner, it exercises quasi-judicial functions.
• This power is obviously a truism in the matter of issuing demolition
notices and/or orders against squatters and illegal occupants through
some of its agencies or authorized committees within its respective
municipalities or cities.
• It cannot be denied as well that in determining whether or not a
structure is illegal or it should be demolished, property rights are
involved thereby needing notices and opportunity to be heard as
provided for in the constitutionally guaranteed right of due
process. In pursuit of these functions, the city mayor has to exercise
quasi-judicial powers.
• City Engineer of Baguio vs. Hon. Domogan, G.R. No. 150270, 26
November 2008
 Can a PMA cadet under investigation for Honor
Code Violation invoke the right to counsel?
• NO. There is nothing in the 1987 Constitution stating that a
party in a non-litigation proceeding is entitled to be
represented by counsel. The assistance of a lawyer, while
desirable, is not indispensable.
• A party in an administrative inquiry may or may not be
assisted by counsel, irrespective of the nature of the
charges and of the respondent's capacity to represent
himself, and no duty rests on such body to furnish the
person being investigated with counsel.
• Hence, the PMA as an administrative body is under no duty
to provide the person with counsel because assistance of
counsel is not an absolute requirement. [First Class Cadet
Aldrin Jeff Cudia vs. The Superintendent of the PMA,
G.R. No. 211362, 25 February 2015. ]
 What is the Doctrine of Operative Fact?
• The general rule is that a void law or administrative act cannot
be the source of legal rights or duties.
• Article 7 of the Civil Code: "Laws are repealed only by
subsequent ones, and their violation or non-observance shall
not be excused by disuse, or custom or practice to the
contrary. When the courts declared a law to be inconsistent
with the Constitution, the former shall be void and the latter
shall govern. Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to
the laws or the Constitution."
• The doctrine of operative fact is an exception to the
general rule, such that a judicial declaration of invalidity
may not necessarily obliterate all the effects and
consequences of a void act prior to such declaration.
• [CIR v. San Roque Power Corp., October 8, 2013]
 Can an “administrative practice” be considered for
the application of the Doctrine of Operative Fact?
• NO. For the operative fact doctrine to apply, there must
be a "legislative or executive measure," meaning a law
or executive issuance, that is invalidated by the court.
• From the passage of such law or promulgation of such
executive issuance until its invalidation by the court, the
effects of the law or executive issuance, when relied upon
by the public in good faith, may have to be recognized as
valid.
• The supposed administrative practice of the BIR and the
CTA --- of not requiring refund seekers to comply with the
120+30 day periods --- is of no moment because an
administrative practice is neither a law nor an executive
issuance.
• [CIR v. San Roque Power Corp., October 8, 2013]
 Can an “administrative practice” be considered for
the application of the Doctrine of Operative Fact?
• Under Section 246, taxpayers may rely upon a rule or ruling
issued by the Commissioner from the time the rule or ruling is
issued up to its reversal by the Commissioner or this Court.
The reversal is not given retroactive effect.
• This, in essence, is the doctrine of operative fact.
• There must, however, be a rule or ruling issued by the
Commissioner that is relied upon by the taxpayer in good
faith.
• A mere administrative practice, not formalized into a rule or
ruling, will not suffice because such a mere administrative
practice may not be uniformly and consistently applied.
• An administrative practice, if not formalized as a rule or ruling,
will not be known to the general public and can be availed of
only by those with informal contacts with the government
agency. [CIR v. San Roque Power Corp., October 8, 2013]
 Will “res judicata” apply to cases involving
exercise of administrative power?
• NO. The doctrine of res judicata applies only to judicial or
quasi-judicial proceedings, and not to the exercise of
administrative powers.
• Administrative powers refer to those purely administrative in
nature, as opposed to administrative proceedings that take on
a quasi-judicial character [adjudication].
• When the proceedings were merely investigative, aimed at
determining the existence of facts for the purpose of deciding
whether to proceed with an administrative action -- then there
is no res judicata. The case can be re-filed.
• This process can be likened to a public prosecutor's
preliminary investigation, which entails a determination of
whether there is probable cause to believe that the accused is
guilty, and whether a crime has been committed. [Encinas v.
Agustin, April 11, 2013]
Doctrine of Exhaustion of Administrative Remedies
• Q: The Secretary of National Defense issued a memorandum
directing the AFP Chief of Staff to facilitate the interment of
Former President Ferdinand Marcos at the LNMB.
• Several petitioners filed a petition directly with the Supreme
Court seeking to enjoin the interment of Marcos at the LNMB.
• Did the petitioners violate the doctrine of exhaustion of
administrative remedies?
• A: YES.
• Contrary to their claim of lack of plain, speedy, adequate
remedy in the ordinary course of law, petitioners should be
faulted for failing to seek reconsideration of the assailed
memorandum and directive before the Secretary of National
Defense.
• The Secretary of National Defense should be given opportunity
to correct himself. [Ocampo v. Enriquez, November 8, 2016]
 Doctrine of Exhaustion of Administrative Remedies
• Questions on the implementation and interpretation thereof
demand the exercise of sound administrative discretion,
requiring the special knowledge, experience and services of
his office to determine technical and intricate matters of fact.
• If petitioners would still be dissatisfied with the decision of
the Secretary, they could elevate the matter before the Office
of the President which has control and supervision over the
Department of National Defense (DND).
• Under the doctrine of exhaustion of administrative remedies,
before a party is allowed to seek the intervention of the court,
one should have availed first of all the means of
administrative processes available.
• While there are exceptions to the doctrine of exhaustion of
administrative remedies, petitioners failed to prove the
presence of any of those exceptions. [Ocampo v. Enriquez,
November 8, 2016]
 PUBLIC
OFFICERS
A female official of the Bureau of Customs (BOC) referred
to House Speaker Pantaleon Alvarez as an “imbecile” in
one of her Facebook posts. Can she be charged with
Grave Misconduct and removed from office?
• A: NO. Misconduct in office, by uniform legal definition, is
such misconduct that affects his performance of his duties
as an officer and not such only as affects his character as a
private individual.
• To warrant removal from office, it must have direct relation
to and be connected with the performance of official duties
amounting either to maladministration or willful, intentional
neglect and failure to discharge the duties of the office.
• It becomes grave if it “involves any of the additional elements of
corruption, willful intent to violate the law or to disregard
established rules, which must be established by substantial
evidence.” [Garcia v. Molina, January 11, 2016 (Bersamin)]
The Ombudsman filed charges of “Usurpation of
authority” against Former President Noynoy Aquino. If a
certiorari petition is filed with the SC to review this act of
the Ombudsman, will such a petition prosper?
• A: NO. The discretion of the Office of the Ombudsman in the
determination of probable cause to charge a respondent public
official or employee cannot be interfered with in the absence of a
clear showing of grave abuse of discretion amounting to lack or
excess of jurisdiction.

• Jurisprudence explains that the Office of the Ombudsman is

vested with the sole power to investigate and prosecute, motu
proprio or on complaint of any person, any act or omission of any
public officer or employee, office, or agency when such act or
omission appears to be illegal, unjust, improper, or inefficient.
• The Ombudsman’s power to investigate and to prosecute is
plenary and unqualified. [Soriano v. Ombudsman, AUGUST 19,
2015 (Bersamin)]
The Ombudsman filed charges of “Usurpation of
authority” against Former President Noynoy Aquino. If a
certiorari petition is filed with the SC to review this act of
the Ombudsman, will such a petition prosper?
• A: The Ombudsman has the discretion to determine whether
a criminal case, given its attendant facts and circumstances,
should be filed or not.
• The Ombudsman may dismiss the complaint should the
Ombudsman find the complaint insufficient in form or
substance, or the Ombudsman may proceed with the
investigation if, in the Ombudsman’s view, the complaint is
in due form and substance.
• Hence, the filing or non-filing of the information is primarily
lodged within the “full discretion” of the Ombudsman.
• [Soriano v. Ombudsman, AUGUST 19, 2015 (Bersamin)]
The general Rule is that the decision of the Ombudsman
on who and what to charge is beyond judicial review.
What are the exceptions?
• A: In the following instances, the courts may interfere with the
Ombudsman’s investigatory powers:
• To afford protection to the constitutional rights of the accused;
• When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;
• When there is a prejudicial question which is sub judice;
• When the acts of the officer are without or in excess of authority;
• Where the prosecution is under an invalid law, ordinance or
regulation;
• When double jeopardy is clearly apparent;
• Where the court has no jurisdiction over the offense;
• Where it is a case of persecution rather than prosecution;
• [Soriano v. Ombudsman, AUGUST 19, 2015 (Bersamin)]
 Is the CHR considered as a Constitutional Body enjoying
fiscal autonomy?
• No. From the 1987 Constitution and the Administrative
Code, it is abundantly clear that the CHR is not among the
class of Constitutional Commissions.
• Nor is there any legal basis to support the contention that
the CHR enjoys fiscal autonomy. In essence, fiscal
autonomy entails freedom from outside control and
limitations, other than those provided by law.
• It is the freedom to allocate and utilize funds granted by law,
in accordance with law, and pursuant to the wisdom and
dispatch its needs may require from time to time.
• Only the Judiciary, the Civil Service Commission, the
Commission on Audit, the Commission on Elections, and
the Office of the Ombudsman, which enjoy fiscal autonomy.
[CHREA vs. CHR, G.R. No. 155336. November 25, 2004]
• Q: Before the nullification of his designation, what is the
status of Sec. Agra – de jure or de facto?
• A: Agra did not validly hold the position of Acting Secretary
of Justice concurrently with his holding of the position of
Acting Solicitor General. Accordingly, he was not to be
considered as a de jure officer for the entire period of
his tenure as the Acting Secretary of Justice.
• A de jure officer is one who is deemed, in all respects,
legally appointed and qualified and whose term of office has
not expired.
• That notwithstanding, Agra was a de facto officer during
his tenure as Acting Secretary of Justice. During their
tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to
emoluments for actual services rendered.
• Funa vs. Agra, FEBRUARY 19, 2013 [J. BERSAMIN].
• Q: Who is de facto officer?
• A:
• A de facto officer is one who derives his appointment from
one having colorable authority to appoint, if the office is an
appointive office, and whose appointment is valid on its
face.
• He may also be one who is in possession of an office, and
is discharging its duties under color of authority, by which
is meant authority derived from an appointment, however
irregular or informal, so that the incumbent is not a mere
volunteer.
• Consequently, the acts of the de facto officer are just as
valid for all purposes as those of a de jure officer, in so far
as the public or third persons who are interested therein
are concerned. Funa vs. Agra, FEBRUARY 19, 2013 [J.
BERSAMIN].
• What are the prohibitions imposed on public officers?
• 1. Prohibition against solicitation of gifts (Sec. 7(d), R.A. No.
6713)
• 2. Prohibition against partisan political activities (Sec. 2(4), Art.
IX(B), Constitution)
• 3. Prohibition against engaging in strike (Social Security
System Employees Assn. v. CA, G.R No. 85279, Jul 28,1989).
• 4. Restriction against engaging in the practice of law (Sec. 90,
R.A. No. 7160)
• Prohibition against practice of other professions (Sec. 90, R.A.
No. 7160)
• Restriction against engaging in private business (Abeto v.
Garces, A.M. No. P‐88‐269, Dec. 29, 1995)
• Restriction against accepting certain employment (Sec. 7(b),
R.A. No. 6713)
• Q: What is the Doctrine of Administrative
Condonation? Is this still applicable?
• A:
• The rule that public official cannot be removed for
administrative misconduct committed during a prior
term, since his re-election to office operates as a
condonation of the officer’s previous misconduct to
the extent of cutting off the right to remove him
therefore. Note that this has no application to
pending criminal cases. (Aguinaldo v. Santos, G.R.
No. 94115, Aug. 21, 1992)
• This Doctrine was already abandoned by the
Supreme Court in the case of Mayor Junjun Binay
[Carpio-Morales, vs. CA, November 10, 2015]
• Q: Why was the Doctrine of Administrative Condonation
abandoned?
• A: To begin with, the concept of public office is a public
trust and the corollary requirement of accountability to
the people at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that an
elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact
that he was elected to a second term of office, or even
another elective post.
• Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory
basis in our jurisdiction to support the notion that an official
elected for a different term is fully absolved of any
administrative liability arising from an offense done during a
prior term.[Carpio-Morales, vs. CA, November 10, 2015]
Q. Is appeal available in administrative disciplinary cases?

A: It depends on the penalty imposed:

Appeal is available if the penalty is:
Demotion, Dismissal, or Suspension for more than 30 days or
fine equivalent to more than 30 day salary (P.D. 807, Sec.37
par [a]).

Appeal is not available if the penalty is:

Suspension for not more than 30 days
Fine not more than 30 day salary
Censure; Reprimand; or Admonition

Note: In the second case, the decision becomes final and

executory by express provision of law.
Q. Will the filing of a Motion for Reconsideration or an
appeal stay the execution of a decision of the
Ombudsman in an administrative case?

Answer: No. Appeals from decisions of the

Ombudsman in administrative cases do not stay the
execution of the penalty imposed.
This is pursuant to Section 7, Rule III of the Rules of
Procedure of the Ombudsman which explicitly states that
an appeal shall not stop the decision from being
executory.
No vested right is violated because pending appeal the
appellant is considered as preventively suspended and
will be paid backwages in case he wins in his appeal.
(Facura, et al., v. CA, GR No. 166495, Feb. 16, 2011)
Q. If a government official is convicted by a
regional trial court in a criminal case in relation
to his office, where should he file his appeal?

Answer: He should file his appeal with the

Sandiganbayan. Pursuant to RA 8249, the
Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or
orders of RTC’s in criminal cases involving
government officials whether in the exercise of their
own original jurisdiction or appellate jurisdiction.
(Filomena v. People, GR No. 188630, Feb. 23,
2011)
LOCAL GOVERNMENT
 CREATION OR CONVERSION OF LGU’S
• Income requirement – must be sufficient on
acceptable standards to provide for all essential
government facilities and services and special
functions commensurate with the size of its
population as expected of the local government unit
concerned.
• Average annual income for the last two (2)
consecutive years should be at least:
• Province – P 20M
• Highly Urbanized City – P 50M
• City – P 100M (as amended by RA 9009)
• Municipality – P 2.5M
• Q: In determining the total INCOME of an LGU, for
purposes of conversion to a higher LGU, should the IRA
be included?
• A: YES.
• The IRAs are items of income because they form part of the
gross accretion of the funds of the local government unit.
• The IRAs regularly and automatically accrue to the local
treasury without need of any further action on the part of the
local government unit. They thus constitute income which the
local government can invariably rely upon as the source of
much needed funds.
• Department of Finance Order No. 35-93 defined ANNUAL
INCOME to be "revenues and receipts realized by provinces,
cities and municipalities from regular sources of the Local
General Fund including the internal revenue allotment and
other shares provided for in Sections 284, 290 and 291 of the
Code. [Alvarez v. Guingona, 252 SCRA 695 (1996)].
• Q: Section 6, Art. X of the 1987 Constitution mentions
national taxes as the source of the just share of the
LGUs while Section 284 of the LGC states that the LGUs
share should be taken from national internal revenue
taxes instead. Is this constitutional?
• A: NO.
• The exclusion of other national taxes like customs duties
from the base for determining the just share of the LGUs
contravened the express constitutional edict in Section 6,
Article X the 1987 Constitution.
• Congress can validly exclude taxes that will constitute the
base amount for the computation of the IRA only if a
Constitutional provision allows such exclusion.
• [Gov. Mandanas v. Executive Secretary, GR No. 199802,
July 3, 2018]
• QUESTION:
• At the end of the 11th Congress, several bills aiming to
convert certain municipalities into cities were pending.
The same were not entered into law.
• The 12th Congress enacted R.A. No. 9009, amending the
Local Government Code (LGC) by increasing to P100
MILLION the income requirement for conversion of
municipalities into cities.
• The municipalities filed, through their respective
sponsors, individual cityhood bills containing a common
proviso exempting them from the new income
requirement. Congress and the President approved the
same.
• The League of Cities of the Philippines challenged the
constitutionality of such laws for violating the equal
protection clause and the LGC.
 LEAGUE OF CITIES v. COMELEC
• On November 18, 2008, the SC ruled the cityhood laws
unconstitutional. The Comelec filed the first motion for
reconsideration, which was denied on March 31, 2009.
• On April 28, 2009, the SC en banc, by a split vote, denied a
second motion for reconsideration. The decision then became
final and executory.
• However, on Dec. 21, 2009, the SC ruled on a 3rd MR and
reversed its own final judgment. The 16 cities were allowed to hold
elections in 2010.
• Then again, on a 4th, MR the SC in a decision dated August 24,
2010, reversed its decision and ruled that the 16 cityhool laws
were unconstitutional. The decision then became final and
executory (again).
• Surprisingly, on a 5th MR, last April 12, 2011 the SC again
reversed itself and upheld the constitutionality of the creation of
the 16 new cities.
• THE SUPREME COURT JUSTIFIED IT BY SAYING:
• The 16 municipalities not only had conversion bills pending
during the 11th Congress, but have also complied with the
requirements of the LGC prescribed prior to its amendment
by R.A. No. 9009.
• Congress undeniably gave these cities a special
consideration by exempting them from the P100 Million
income requirement under RA 9009. The exemption clauses
found in the individual Cityhood Laws are the express
articulation of the intent of Congress to exempt these 16
municipalities from the coverage of R.A. No. 9009.
• Hence, this Court should do no less by stamping its
imprimatur to the clear and unmistakable legislative intent
and by duly recognizing the collective wisdom of Congress.
(League of Cities of the Philippines (LCP) v. COMELEC,
G.R. No. 176951, April 12, 2011)
 CREATION OR CONVERSION OF LGU’S
• Population requirement – to be determined as the total
number of inhabitants within the territorial jurisdiction of the
local government unit concerned. The required minimum
population shall be:

• Barangay – 2K
• But 5K in:
– Metro Manila
– Highly urbanized cities
• Municipality – 25K
• City – 150K
• Province – 250K
• Q: Congress enacted a law creating the legislative
district of Malolos based on a certification of the
demographic projection from NSO stating that by 2010,
Malolos is expected to reach the population of 250,000,
hence entitling it to one legislative district. Is the law
valid?
• A: No. Congress cannot establish a new legislative district
based on a projected population of the National statistics
Office (NSO) to meet the population requirement of the
Constitution in the reapportionment of legislative districts.
• A city that has attained a population of 250,000 is entitled to
a legislative district only in the “immediately following
election.” In short, a city must first attain the 250,000
population, and thereafter, in the immediately following
election, such city shall have a district representative.
(Aldaba v. Comelec, G.R. No. 188078, Jan. 25, 2010)
• Q: Congress enacted a law reapportioning the
composition of the Province of Camarines Sur and created
a new legislative district with only 180,000 population from
non-adjacent municipalities. Comelec argued that the
250,000 population standard requirement does not apply
to provinces. Is COMELEC correct?
• A: Yes. Section 5(3), Article VI of the 1987 Constitution which
requires 250,000 minimum population requirement apply only
for a city to be entitled to a representative but not for a
province.
• The provision draws a plain and clear distinction between the
entitlement of a city to a district on one hand, and the
entitlement of a province to a district on the other. For while a
province is entitled to at least a representative, with nothing
mentioned about population, a city must first meet a population
minimum of 250,000 in order to be similarly situated. (Aquino
and Robredo v. Comelec, G.R. No. 189793, April 7, 2010)
• Q: Congress passed a law providing for the
apportionment of a new legislative district in CDO
City. The COMELEC implemented said law but
without any plebiscite. This was challenged as
unconstitutional. Is a plebiscite required in the
creation of a new district?
• A: NO. The apportionment of a new district is NOT a
conversion and division of CDO City, falling under
Section 10 Art X of the Constitution. There is no need
for a plebiscite. CDO City politically remains a single
unit and its administration is not divided along territorial
lines. Its territory remains whole and intact. Thus,
Section 10 Art. X of the Constitution does not come into
play. (Rogelio Z. Bagabuyo v. COMELEC, G.R. No.
17690, Dec. 8 2008)
• Q: Can the Mayor order the demolition of a hotel for lack
of a business permit?
• A: YES.
• In the exercise of police power and the general welfare
clause, property rights of individuals may be subjected
to restraints and burdens in order to fulfil the objectives
of the government.
• The LGC authorizes LGU’s, acting through their local chief
executives, to issue demolition orders. Sec. 444 (b) (3) (vi)
of the LGC, which empowered the mayor to order the
closure and removal of illegally constructed establishments
for failing to secure the necessary permits.
• Otherwise stated, the government may enact legislation that
may interfere with personal liberty, property, lawful
businesses and occupations to promote the general welfare.
(Aquino v. Municipality of Malay, Aklan, G.R. No.
211356, September 29, 2014)
• Q: Can the Mayor order the demolition of
illegal structures without any court order?
• A: YES.
• But this is true only for illegal structures
built on government land. The LGC
authorizes local chief executives to issue
demolition orders. Sec. 444(b)(3)(vi) of the LGC
empowers the mayor to order the closure and
removal of illegally constructed establishments
built on government property for failing to
secure the necessary permits.
• CRISOSTOMO B. AQUINO vs. MUNICIPALITY OF
MALAY, AKLAN, G.R. No. 211356, September 29, 2014,
J. Velasco, Jr.
• Q: Can the Mayor be compelled by writ of Mandamus
to issue a business permit?
• A: NO.
• A mayor cannot be compelled by mandamus to issue a
business permit since the exercise of the same is a
delegated police power hence, discretionary in nature.
• Section 444(b)(3)(iv) of the Local Government Code of
1991, grants the power of the mayor to issue license and
permits and correspondingly the power NOT to ISSUE or
to REVOKE one already granted.
• Necessarily, the exercise thereof cannot be deemed
ministerial. As to the question of whether the power is
validly exercised, the matter is not within the province of a
writ of mandamus. RIMANDO V. NAGUILAN EMISSION
TESTING CENTER, G.R. NO. 198860. JULY 23, 2012
• Q: The City of Marikina enacted an ordinance that
requires property owners to lower fences, re-build it
with 6 meters setback and make it 80% see through. Is
this ordinance valid?
• A: NO. The State may not, under the guise of police power,
permanently divest owners of the beneficial use of their
property solely to preserve or enhance the aesthetic
appearance of the community. The SC ruled that the
ordinance is unreasonable and oppressive as it will
substantially divest the property owner of the beneficial use
of their property solely for aesthetic purposes.
• The real intent of the setback requirement was to make the
parking space free for use by the public, considering that it
would no longer be for the exclusive use of SSC.
• Section 9 of Article III of the 1987 Constitution, provides that
private property shall not be taken for public use without just
compensation. [Fernando v. SSC, March 12, 2013]
• Q: Do LGU’s have an inherent power to tax?
• A: LGUs have no inherent power to tax except to the extent
that such power might be delegated to them either by the
basic law or by the statute.
• Under the 1987 Constitution, where there is neither a
grant nor a prohibition by statute, the tax power must
be deemed to exist although Congress may provide
statutory limitations and guidelines.
• Every LGU is now empowered and authorized to create
its own sources of revenue and to levy taxes, fees, and
charges which shall accrue exclusively to the local
government unit as well as to apply its resources and assets
for productive, developmental, or welfare purposes, in the
exercise or furtherance of their governmental or proprietary
powers and functions.(Ferrer v. Bautista, G.R. No. 210551,
June 30, 2015)
• Q: Do LGU’s have an inherent power to tax?
• A: NO.
• For sure, fiscal decentralization does not signify the
absolute freedom of the LGUs to create their own
sources of revenue and to spend their revenues
unrestrictedly or upon their individual whims and caprices.
• Congress has subjected the LGUs’ power to tax to the
guidelines set in Section 130 of the LGC and to the
limitations stated in Section 133 of the LGC.
• The concept of local fiscal autonomy does not exclude
any manner of intervention by the National Government in
the form of supervision if only to ensure that the local
programs, fiscal and otherwise, are consistent with the
national goals.
• [Gov. Mandanas v. Executive Secretary, GR No. 199802,
July 3, 2018]
• Q: Who determines the legality or propriety of a
local tax ordinance or revenue measure?
• A: It is the Secretary of Justice who shall determine
questions on the legality and constitutionality of
ordinances or revenue measures.
• The appeal must be filed within thirty (30) days
from the effectivity of the tax ordinance.
• The Secretary of Justice has sixty (60) days from the
date of receipt of the appeal to issue a ruling;
otherwise, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction
(RTC).
• The appeal shall not have the effect of
suspending the effectivity of the ordinance. (Sec.
187 R.A. 7160)
 May LGU’s hire private counsel?
In the case of Ramos vs. CA (108 SCRA 728), the
Supreme Court declared that a private lawyer cannot
represent a local government unit even if the services
rendered was gratis.
Moreover, in the case of Edgar Mancenido, et. al., vs.
Court of Appeals (330 SCRA 419), the Supreme Court
stated that an LGU may only hire a private attorney
when the provincial fiscal is disqualified.
However, the LGU may hire a private lawyer as a legal
officer under a consultancy agreement, duly
approved by the local sanggunian. Such
sanggunian resolution will clothe him with the
authority to act as the legal officer of the LGU.
(DILG Opinion No. 26 s. 2004 dated 03 February 2004)
• Q: Can the Annual Budget be used as continuing
authority for the LCE to enter into contracts without
prior authorization from the Sanggunian?
• A: NO.
• Sec. 22 of the LGC states: “Unless otherwise provided in
this Code, no contract may be entered into by the local
chief executive in behalf of the local government unit
without prior authorization by the sanggunian
concerned.”
• Should the appropriation ordinance, however, already
contain in sufficient detail the project and cost of a capital
outlay such that all that the local chief executive needs to do
after undergoing the requisite public bidding is to execute
the contract, no further authorization is required, the
appropriation ordinance already being sufficient.
• Quisumbing vs. Gov. Garcia, G.R. No. 175527. Dec. 8, 2008.
 Latasa v. Comelec,
GR 154829, 12.10.2003

A mayor of a municipality converted into

a city during the 3rd term of the mayor
cannot seek office as city mayor in the
1st elections of city officials.

Because the area and inhabitants of the

locality are the same and the municipal
mayor continued to hold office until such
time as city elections are held.
 Socrates v. Comelec,
GR 154512, 11.12.2002

The 3-term limit for local elected officials is

not violated when a local official wins in a
recall election for mayor after serving three
full terms as mayor since the recall
election is not considered an immediate
re-election.
Term limits should be construed strictly to
give the fullest possible effect to the right
of the electorate to choose their leaders.
 Lonzanida v. Comelec,
GR 135150, 07.28.99

Lonzanida vacated his post a few months before

the next mayoral elections, not by voluntary
renunciation but by the COMELEC’s writ of
execution.
Such involuntary severance from office is an
interruption of continuity of service and thus, the
petitioner did not fully serve the mayoral term.
A local government official must have been elected
to the office/position and must have served the
full term in order to be considered as a term in
applying the 3-term limit rule.
 Borja, Jr. v. Comelec
295 SCRA 157

Borja assumed the post of Mayor by

succession, will that term be considered
in the application of the three-term rule?
No. It is not enough that an individual has
served 3 consecutive terms in an
elective local office, he/she must also
have been elected to the same position
for the same number of times before the
disqualification can apply.
 Montebon v. COMELEC
April 9, 2008; 551 SCRA 50
The highest-ranking municipal councilor succeeded
to the position of vice-mayor by operation of
law. Will his assumption as vice-mayor be
considered an interruption of his term as
councilor under the 3-term limit rule?
Yes. An interruption had intervened so that he could
again run as councilor.
He vacated the office of councilor and assumed the
higher post of vice-mayor by operation of law.
Thus, for a time he ceased to be councilor – an
interruption that effectively placed him
outside the ambit of the three-term limit rule.
 Ong v. Alegre
295 SCRA 157
The final judgment in the electoral contest came
after the term of the contested office had
expired so that the elective official was never
effectively unseated. Will the 3-term limit rule
apply?
Yes. (1) the final decision that the third-termer lost
the election was without practical and legal use
and value, having been promulgated after the
term of the contested office had expired; and
(2) the official assumed and continuously exercised
the functions of the office from the start to the
end of the term.
 DIZON v. COMELEC, 2009
• X occupied the position of mayor of Mabalacat for the
following periods: 1 July 1995 to 30 June 1998, 1
July 1998 to 30 June 2001, 1 July 2001 to 30 June
2004, and 1 July 2004 to 16 May 2007.
• However, the SC ruled in a previous case that X was
not the duly elected mayor for the 2004-2007 term.
• Eventually, X also won the elections and assumed
the mayoralty position for the 2007-2010 term.
• Y filed a petition to disqualify X as mayor on the
ground that X’s assumption of the mayoralty position
on 1 July 2007 makes the 2007-2010 term his fifth
term in office, which violates the three-term limit rule.
Is Y correct?
 Answer
• No. For purposes of determining the resulting
disqualification brought about by the three-term
limit, 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.
• There should be a concurrence of two conditions
for the application of the disqualification: (1) that
the official concerned has been elected for three
consecutive terms in the same local government
post and (2) that he has fully served three
consecutive terms.
 Answer
• X cannot be deemed to have served the full term of
2004-2007 because he was ordered to vacate his
post before the expiration of the term.
• X’s occupancy of the position of mayor of Mabalacat
from 1 July 2004 to 16 May 2007 cannot be counted
as a term for purposes of computing the three-term
limit.
• Indeed, the period from 17 May 2007 to 30 June
2007 served as a gap for purposes of the three-term
limit rule. Thus, the present 1 July 2007 to 30 June
2010 term is effectively X’s first term for purposes of
the three-term limit rule. (Dizon v. COMELEC GR
182088 Jan.30, 2009)
 BOLOS v. COMELEC, 2009
• How about if a Punong Barangay, during his third term, runs
for and gets to sit in the Sangguniang Bayan, and serves out
such term, is he entitled to run again during the next election
for Punong Barangay?
• The SC ruled that in this case there was voluntary
renunciation. Bolos was serving his third term as Punong
Barangay when he ran for Sangguniang Bayan member and,
upon winning, assumed the position of Sangguniang Bayan
member, thus, voluntarily relinquishing his office as Punong
Barangay. Accordingly, he cannot run.
• Voluntary Renunciation does not interrupt the running of the
3-term limit rule.
• Bolos, Jr. v. Commission on Elections, 581
SCRA 786 (2009)
• Is the preventive suspension of an elected
public official an interruption of his term of
office for purposes of the three-term limit
rule?
• No. 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. (Aldovino v. COMELEC, G.R. No. 184836, 23
December 2009)
 Aldovino v. COMELEC
G.R. No. 184836, 23 December 2009

Term limitation is triggered after an elective

official has served his three terms in office
without any break.
Preventive suspension, by its nature, is a
temporary incapacity to render service
during an unbroken term; in the context
of term limitation, interruption of service
occurs after there has been a break in the
term.
 Aldovino v. COMELEC
G.R. No. 184836, 23 December 2009

A serious extended illness, inability through force

majeure, or the enforcement of a suspension
as a penalty, may prevent an office holder from
exercising the functions of his office for a time
without forfeiting title to office.
Preventive suspension is no different because it
disrupts actual delivery of service for a time
within a term.
All these instances will not interrupt the term for
purposes of applying the 3-term limit rule.
• 2016 Bar Exam Question
• Rule and explain briefly the reason if the official is
prohibited to run for another term in each of the following
situations:
• (a) if the official is a Vice-Mayor who assumed the position
of Mayor for the unexpired term under the Local
Government who assumed the position of Mayor for the
unexpired term under the Local Government Code,
• (b) if the officials has served for three consecutive terms
and did not seek a 4th term but who won in a recall election;
• (c) if the position of Mayor of a town is abolished due to
conversion of the town to a city;
• (d) if the official is preventively suspended during his term
but was exonerated; and if the official proclaimed as winner
and assumes office but loses in an election protest. (5%)
• ANSWER:
• (a) The three term limit rule is inapplicable to the Vice-Mayor
because the interruption in his term when he assumed the
position of Mayor would be involuntary, (Montebon v.
Commission on Elections, G.R. No. 180444, April 8, 2004,
551 SCRA 50)

• (b) The three termer limit rule is likewise inapplicable to the

official who has served for three consecutive terms and did
not seek a 4th term but won in a recall election because there
would have been an involuntary interruption in his terms after
his third term (Socrates v. Commission on Elections, G.R.
No. 154512, November 12, 2002, 391 SCRA 457), and a
recall term is not a full term (Mendoza v. COMELEC, G.R.
No. 149736, December 17, 2002).
• ANSWER:
• (c) The three termer limit rule would be applicable
against the Mayor of a town which is abolished due to
the conversion of the town to a city because the
abolition of an elective office due to the conversion of a
municipality to a city does not, by itself, work to interrupt
the incumbent official’s continuity of service (Latasa v.
Commission on Elections, G.R. No. 154829, December
10, 2003, 417 SCRA 601)
• (d) The three term limit rule is also inapplicable to the
official who has been placed under preventive
suspension during his term because a preventive
suspension is not an interruption. (Aldovino v.
COMELEC, G.R. No. 184836, December 23, 2009, 603
SCRA 234).
• ANSWER:
• (e) The three term limit rule is finally
inapplicable to the official who is proclaimed
as winner and assumes office but loses in an
election contest because his term is
interrupted when he loses said election
protest and is ousted from office, thus
disenabling him from serving what would
otherwise be the unexpired portion of his term
had the protest been dismissed. (Lonzanida
v. Commission on Elections, G.R. No.
135150, July 28, 1999, 311 SCRA 602).
 PUBLIC
INTERNATIONAL LAW
• QUESTION:
• On October 27, 2015 the USS Lassen (a US
military ship) carried out the first freedom
of navigation patrol to challenge China’s
territorial claims over the 12-nautical-mile
region surrounding its artificial islands in
the South China Sea (West Philippine Sea).
Chinese authorities responded angrily.
• What is meant by “freedom of
navigation”? Is the US correct in
conducting FON patrols in the South
China Sea? Explain.
• ANSWER:
• Freedom of navigation (FON) is a
principle of customary international law
which states that ships flying the flag of
any sovereign state shall not suffer
interference from other states while in
international waters.
• This right is now also codified as article
87(1)a of the 1982 United Nations
Convention on the Law of the Sea.
 Right of Innocent Passage
• It means navigation through the territorial
sea of a State for the purpose of
traversing the sea without entering
internal waters, or of proceeding to
internal waters, or making for the high
seas from internal waters, as long as it is
not prejudicial to the peace, good order
or security of the coastal State. (Articles 18
[1][2], 19[1], UNCLOS)
 Right of Innocent Passage
• The United Nations Convention on the Law of the
Sea (UNCLOS) enshrines the concept of innocent
passage through a coastal state’s territorial sea.
• Passage is innocent so long as it is not
prejudicial to the peace, good order or
security of the coastal state.
• A vessel in innocent passage may traverse the
coastal state’s territorial sea continuously and
expeditiously, not stopping or anchoring except in
force majeure situations.
 Transit Passage
• It is the right to exercise freedom of navigation and
overflight solely for the purpose of continuous and
expeditious transit through the straits used for
international navigation, i.e., between two areas of the
high seas or between two exclusive economic zones.
• All ships and aircraft enjoy the right of transit
passage.
• The requirement of continuous and expeditious transit
does not preclude passage through the strait for the
purpose of entering, leaving or returning from a State
bordering the strait, subject to the conditions of entry
to that State. (Magalona, 2005; Article 38[2],
UNCLOS)
 Distinguish Innocent Passage
from Transit Passage
• Innocent passage is for travel within
territorial waters while transit passage is
for any zone.
• Innocent passage applies only to ships
while transit passage applies to
aircrafts as well.
• In transit passage, military vessels are
also allowed which are not allowed in
innocent passage.
 Diplomatic v. Consular Immunity

• Under Article 32 of the Vienna Convention on

Diplomatic Relations, a diplomatic agent shall
enjoy immunity from the criminal, civil and
administrative jurisdiction of the receiving state.
• On the other hand, under Article 41 of the Vienna
Convention on Consular Relations, a consular
officer enjoys immunity from the civil and
administrative, but not criminal, jurisdiction of the
receiving state.
 When is a diplomat not Immuned?

• He shall enjoy immunity from civil and administrative

jurisdiction except in the case of:
• (i) A real action relating to property situated in the
territory of the receiving state, unless he holds it on behalf
of the sending state for the purpose of the mission;
• (ii) An action relating to succession in which the
diplomatic agent is invoked as executor, administrator, heir
or legatee as a private person and not on behalf of the
sending state;
• (iii) An action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving
state outside his official functions.
 When is a consul not Immuned?

• Under Article 43 of the Convention, Consular

officers are not immuned when the civil action:
• (i) Arises out of a contract concluded by a
consular officer in which, he did not contract
expressly or impliedly as an agent of the sending
state;
• (ii) By a third party for damage arising from an
accident in the receiving state caused by a
vehicle, vessel, or aircraft.
 Important Words on Immunity

• Agreation - It is a practice of the States before

appointing a particular individual to be the chief of their
diplomatic mission in order to avoid possible
embarrassment.
• Exequatur - An authorization from the receiving State
admitting the head of a consular post to the exercise
of his functions. For example, if the Philippines
appoints a consul general for New York, he cannot
start performing his functions unless the President of
the United States issues an exequatur to him.
 Sample Problem on Immunity

• Q: The U.S. Ambassador from the Philippines and the

American Consul General also in the Philippines
quarreled in the lobby of Manila Hotel and shot each
other. May Philippine courts take jurisdiction over them
for trial and punishment for the crime they may have
committed?
• A: NO. The Ambassador is immune from prosecution
for all crimes committed by him whether officially or in
his private capacity. The consul is immune from criminal
prosecution only for acts committed by him in connection
with his official functions.
 Distinguish Extradition from Deportation

• Extradition is effected for the benefit of

the state to which the person to be
extradited will be surrendered because he
is a fugitive criminal in that state, while
deportation is effected for the protection
of the State expelling an alien because his
presence is not conducive to the public
good.
 Distinguish Extradition from Deportation

• Extradition is effected on the basis of an

extradition treaty, while deportation is the
unilateral act of the state expelling an
alien.
• In extradition, the alien will be
surrendered to the State asking for his
extradition, while in deportation the
undesirable alien may be sent to any state
willing to accept him.
 CAN THE PRESIDENT WITHDRAW THE
PHILIPPINES FROM THE ICC?
• YES. But The withdrawal will take effect only
after the one year period.
• According to Article 127 of the Rome Statute -
• "A State Party may, by written notification
addressed to the Secretary-General of the
United Nations, withdraw from this Statute.
The withdrawal shall take effect one year
after the date of receipt of the notification,
unless the notification specifies a later date."
WILL THE WITHDRAWAL AFFECT THE PENDING
CASES AGAINST PRES. DUTERTE?
• NO. Because under Article 127 of the Rome Statute:
• A State shall not be discharged, by reason of its
withdrawal, from the obligations arising from this Statute
while it was a Party to the Statute, including any financial
obligations which may have accrued.
• Its withdrawal shall not affect …criminal
investigations and proceedings … which were
commenced prior to the date on which the
withdrawal became effective, nor shall it prejudice in
any way the continued consideration of any matter which
was already under consideration by the Court prior to
the date on which the withdrawal became effective.
Crimes within ICC jurisdiction

• genocide
• crimes against humanity
• war crimes
• the crime of aggression.

http://www.un.org/law/icc/index.html
 Jurisdiction Over Crimes
•The ICC has jurisdiction over:
•(1) crimes committed by nationals
of States that have ratified the ICC
statute, as well as over:
•(2) crimes committed on the
territory of States that have ratified
the treaty.
Rome Statute-Article 17, 18, 19
 WHAT PENALTIES CAN THE ICC IMPOSE?

• Consistent with international human

rights standards, the International
Criminal Court has no competence
to impose a death penalty.
• The Court can impose lengthy terms
of imprisonment of up to 30 years or
life imprisonment when so justified
by the gravity of the case.
• Q: Who is a refugee?
• 1. The person must be outside their country of
origin or habitual residence.
• 2. The person must have a well founded fear
of persecution for reasons of: race, religion,
nationality, political opinion, membership of a
particular social group
3. The person must be unable or unwilling to
avail of the protection of their own State for
reasons of such persecution. (Article 1A of
the 1951 Convention On Migrants and
Refugees)
• Q: What is the principle of “Non-
Refoulement”?
• A: It is a customary principle of international
law which prohibits the expulsion or return of
refugees to their state of origin. Article 31 of
the UN Charter states:
• 1. No Contracting State shall expel or return
a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom
would be threatened on account of his race,
religion, nationality, membership of a
particular social group or political opinion.
• Q: The US government introduced Lethal Autonomous
Weapons Systems (LAWS) which uses drones and
robots to launch air strikes against enemy targets in
war-torn countries. These drones and robots cannot
distinguish between military and civilians. They only
follow specific orders formulated thru algorithms and
computer programs. Will the use of these unmanned
drones and robots constitute a violation of the Geneva
Convention or any principle of international law?
• A: Yes. Under the Geneva Conventions, it is prohibited to
employ weapons or methods of warfare of a nature to cause
unnecessary losses or excessive suffering.
• Parties to a conflict shall at all times distinguish between the
civilian population and combatants in order to spare civilian
population and property. Neither the civilian population as
such nor civilian persons shall be the object of attack.
Attacks shall be directed solely against military objectives.
• Q: Will the use of these unmanned drones and
robots constitute a violation of the Geneva
Convention or any principle of international law?
• A: Yes. Under the Geneva Conventions, it is
prohibited to employ weapons or methods of warfare
of a nature to cause unnecessary losses or
excessive suffering.
• International Humanitarian Law prohibits
indiscriminate attacks. Indiscriminate attacks strike
military objectives and civilians or civilian objects
without distinction. They are not directed at a
specific military objective or they employ a
method or means of combat which cannot be
directed at a specific military objective. (Protocol I,
Art. 51[2], Geneva Conventions)
• Q: Under the Doctrine of State Responsibility, may the
Philippine Government hold the Indonesian government
liable for damages for the death or injury suffered by
Filipinos in Minadanao due to the haze which arose from
uncontrolled forest fires in Indonesia?
• ANSWER: No. Under the Doctrine of State Responsibility, a
State may be held responsible for an international delinquency
only if it the same is directly or indirectly imputable to it which
causes injury to the national of another State.
• A state can only be held liable if it commits an internationally
wrongful act. There is an internationally wrongful act of a
state when conduct consisting of an action or omission: (i) is
attributable to the State under International Law; and (ii)
constitutes a breach of an international obligation of the
State. Here, the widespread forest fires seem to be a
fortuitous event that cannot be attributed to the Indonesian
government.
• Q: A newspaper correspondent following an army was
caught by the enemy while trying to send reports of a
battle to his home office. Is he entitled to treatment as a
prisoner of war or may he be treated as a spy?
• A: He is entitled to treatment as a prisoner of war. Under
Article 4 (A)(4) of the 3rd Geneva Convention, persons who
accompany the armed forces without actually being
members thereof, such as war correspondents, shall be
entitled to prisoner-of-war status when they fall in enemy
hands.
• Q: Are spies entitled to prisoner-of-war status when
captured by the enemy?
• A: No. Any member of the armed forces of a Party to the
conflict who falls into the power of an adverse Party while
engaging in espionage shall not have the right to the status
of prisoner of war and may be treated as a spy.