POLITICAL LAW REVIEW JD CLASS 2016-2017
ADMINISTRATIVE LAW over the case in the absence of any law providing for an
Nature and Concept of Administrative law
• Branch of Modern law – administrative agencies came into
being only in the later part of legal systems evolution, when
running the affairs of the government became complicated
as a result of growing complexities in the society. As the
areas of governmental concern expanded and grew
complicated (with new inventions and systems), so are the
TIME and EXPERTISE needed to address them. Legislature
and Judiciary no longer have the time and expertise to deal
with these concerns.
• NEED: Expediency
• THE SOLUTION: Delegation of Powers
Note: Modern because it is after the fundamental fields – executive,
legislative and executive. Functions that are NOT traditional executive,
legislative and judicial BUT QUASI-legislative, judicial functions
primarily.
• By the executive department – only because delegation
• Executive is given quasi-legislative and/or quasi-judicial
powers. Cannot be “legislative” nor “judicial” because
Administrative body is neither legislative nor judicial body.
• Interferes with conduct of individuals/persons-
administrative agency “regulates” conduct, and regulation is
one essence of governance. Because regulation affects
private rights, admin law also provides for “remedies” for
the violation of rights.
Note: QL issuances are in the form of police power which basically
interferes with the rights of persons natural/juridical. Hence, important
for admin law to provide a system that affected persons may utilize as
a consequence of the regulation.
• For the promotion of public convenience or general welfare
– also calls for subordination of private interest in favor of
public. It can therefore be observed in the study of
administrative law that the delegation of power by the
Legislature is usually delegation of police power.
USUAL BAR EXAM QUESTIONS IN ADMINISTRATIVE LAW:
• Explain the doctrine of Exhaustion of Administrative
Remedies. Give at least 3 exception to its application
(2000) See Nachura page 513; pg 518
• Should the motion to dismiss on the ground of failure to
exhaust administrative remedies be granted? (2004)
• Distinguish the doctrine of primary jurisdiction from the
doctrine of exhaustion of administrative remedies (1996)
See Nachura page 513, 515
• Does the failure to exhaust administrative remedies before
filing a case in court oust said court of jurisdiction to hear
the case? (1996) No. The jurisdiction of the court is not
affected; but the complainant is deprived of a cause of
action which is a ground for a motion to dismiss.
HOWEVER, if no motion to dismiss is filed on this ground,
there is deemed to be a waiver (Soto vs. Jareno, 144 SCRA
116)
• As lawyer of Jose what steps, if any, would you take to
protect his rights? (1991)
• Give 2 requisites for the judicial review of administrative
decisions/actions, that is, when is an administrative action
ripe for judicial review? (2001, 1998) 1) Exhaustion of admin
remedies; 2) doctrine of primary jurisdiction
• Are GOCC within the scope and meaning of the
Government of the Philippines? (1997)
• When the President abolished certain offices in the
government, it was questioned for being an encroachment
of legislative powers and therefore void. Is the contention
valid? (2003)
• The harbor pilots then filed a suit to have the new MARINA
rules and regulations declared unconstitutional for having
been issued without due process. Decide the case. (2000)
• The Secretary of DOT reversed a decision of the LTFRB.
The office of the President set aside the decision of the
Secretary. A case was filed in CA on certiorari questioning
the decision of OP on the ground that it has no jurisdiction
1
appeal from the DOTC to the OP. will the case prosper?
(2011)
• When is an administrative rule that fixes rate valid? (2010,
2011)
• The Secretary of Agriculture issued a regulation imposing
the penalty of imprisonment for 10 days, is the regulation
valid? (2011)
• Which one of the following theories does not support the
valid delegation of authority by Congress to an
administrative agency? (2010)
• What does “substantial evidence” in administrative
proceeding mean? (2010)
• Under the Admin Code, which of the following does not
come under the definition of a “rule”? (2010)
• It contends that since its agency is attached to the DOF,
whose head, the secretary, is an alter-ego of the President,
the BOD’s acts were also the acts of the President. Is the
invocation of the doctrine by the BOD proper? (2015)
• The Secretary of the DENR issued Memorandum Circular
No. 123-15… ABC corporation filed a case seeking for the
nullification of the circular claiming it is unreasonable…the
DENR moves to dismiss the case on the ground that ABC
corporation has failed to exhaust administrative
remedies…IF you were the judge, will you grant the motion?
MAJOR AREAS IN ADMINISTRATIVE LAW
• ORGANIZATION
• POWER OF THE AGENCIES
• REMEDIES OF AFFECTED INDIVIDUALS
Delegation of powers to administrative agencies is an exception
to the doctrine of Separation of Powers
• The maxim of delegatus non potest delegari or delegata
potestas non potest delegari has been made to adapt itself
to the complexities of modern governments, giving rise to
the adoption, within certain limits, of the principle of
subordinate legislation, and the Court has extended its seal
of approval to the “delegation of greater powers by
legislature” (Pantranco vs. PSC [1940])
• CAVEAT: an exercise of subordinate delegation cannot be
further delegated.
o There has to be no total transfer of legislative
powers to executive department disturbing the
principle of separation of powers; Hence the 2
tests. Total delegation can be understood as a
total abdication of duty reposed upon the
delegate.
What can Congress delegate?
• Legislative discretion as to the substantive contents of the
law cannot be delegated. What can be delegated is the
discretion to determine HOW the law should be
enforced, not what the law shall be. The ascertainment of
the latter subject is a prerogative of the legislature. This
prerogative cannot be abdicated or surrendered by the
legislature to the delegate. (Eastern Shipping Lines, Inc. vs.
POEA [1998])
• Case of People vs. Maceren
Tests to make sure substantive content of the law is not
delegated:
• Completeness test – the law must be complete in all its
term and conditions when it leaves the legislature such that
when it reaches the delegate the only thing he will have to
do is enforce it.
• Sufficient Standard Test: There must be adequate
guidelines or limitations in the law to map out the
boundaries of the delegates authority and prevent the
delegation from running riot.
• Both tests are intended to prevent a total transference of
legislative authority to the delegate. (Easter Shipping Lines
vs. POEA, supra)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
SOURCES OF ADMINISTRATIVE LAW:
• Constitution
• Statutes creating the admin body
• Adm Code of 1977
• Adm Code of 1917 (see Mecano Cse)
• Case Law
• Rules and Regulations of Adm Agency; and
• Decision or orders of adm agency exercising QJ power
Old admin code, not specifically repealed by the 1987 Admin
Code
• Comparing the 2 codes, it is apparent that the new Code
does not cover nor attempt to cover the entire subject
matter of the old Code. There are several matters treated in
the old Code which are not found in the new Code…the
new statute may merely be cumulative or a continuation of
the old one. Besides, repeals of statutes by implications are
not favored. (Mecano vs. COA [1192]; see also DOJ Opinion
No. 73 Series of 1991)
Problem:
Under the Article 567 of the Revides Admin Code, a contract of lease
that the Civil Aeronautics Administration (CAA) will enter into must be
executed: 1) the President of the Philippines, or 2) by an officer duly
designated by him OR 3) by an officer expressly vested by law. Under
RA 776, however, it is the administrator of the CAA that is given the
power to administer CAA’s property. Who should execute the contract
of lease involving CAA’s property?
Answer: Admin Code is GENERAL LAW
Therefore, Special Laws shall prevail over provisions of the
Administrative Code
Thus, the administrator of the CAA shall have then power to lease a
government property of CAA despite a provision in the Administrative
Code that it should be entered into by the President of the Republic,
because a special law (RA 776) creating CAA gives to the
Administrator that power. (Leveriza vs. IAC [1998])
Meaning of “Administration”
• Internal Administration – considers the legal aspects of
public administration as a going concern.
o Personnel matters – law of public officers
• External Administration – refers to the legal relations
between the administrative authorities and private interests
or the public.
o Administrative law proper
IMPORTANT TERMS:
1. Department – executive department created by law
(example: Department of Finance);
2. BUREAU – principal subdivision of a department [Sec 2(8)]
(Dept of Finance has Bureau of Customs, BIR);
3. Office – 1) functional office of a bureau including regional
office (Example: Bureau of Customs Office of Region VII);
2)position held with functions defined by law (office of the
President, Mayor) [Sec 2(9)];
4. Instrumentality – agency of the National Government not
integrated with the Departmental Framework vested with
special functions, with corporate powers, special funds,
enjoying operational autonomy, including regulatory
agencies, chartered institutions and GOCCs. (Sec 2)
5. Chartered Institutions – under a special charter, with
specific constitutional objective.
6. GOCC – agency organized as a stock or non-stock
corporation vested with functions relating to public needs
whether governmental or proprietary in nature, and owned
by the government directly or indirectly through its
instrumentality either wholly or to the extent of at least 51%
of the capital stock in the case of stock corporation.
Note: Have to know which offices had been created by Admin Code
and which have NOT been created by Admin Code but was made
thereafter.
2
Scope of “AGENCY OF GOVERNMENT"
Various units of Government, including:
1. Department
a. Bureau
i. Office
Note: President’s power of control can only be exercised in
the department, bureaus and offices only.
2. Instrumentality (not integrated in the Dept)
a. Regulatory Agencies
b. Chartered institutions
c. GOCCs performing governmental function
d. Public corporation
Note: when law is silent whether who controls these
instrumentalities, control rests on Congress. Hence, it is
congress who can reorganize, abolish and create offices.
3. LGUs when performing governmental function
Problem:
The Boy Scout of the Philippines (BSP) was created by CA no. 111 to
“promote the ability of the boys to do useful things for themselves and
others…and to inculcate in them patriotism, civic consciousness and
responsibility, courage, self-reliance, discipline and kindred values,
and moral values, using the method which are in common use by boys
scouts.” The National Executive Board of BSP no longer consists of
several Cabinet Secretaries, except the Secretary of Education, under
RA 7278., COA asserts jurisdiction over BSP contending that it is still
a government agency. Is BSP still an “instrumentality” of the
government and therefore under COA’s jurisdiction?
BSP vs. COA (2011)
The BSP still remains an instrumentality of the national government.
It is a public corporation (this is declared in CA no. 111 itself) created
by law for a public purpose, attached to the DECS pursuant to its
charter and the Admin Code.
Note: Read the dissent of Carpio in this case
Effects if entity is considered government “instrumentality” (J.
Carpio’s Opinion in BSP vs. COA)
1. Pursuant to Section 2 (11), Article IX –D of the Constitution it
will be subject to COA’s pre-audit and not post-audit
2. It will be subject to the Government Procurement Reform
Act or RA no 9184; and
3. It’s officers and employees will be considered government
personnel who are (a) subject to civil service laws; (b)
covered by the GSIS; (c) Subject to Standardization Law;
(d) required to file SALN; € under the jurisdiction of the
ombudsman; and (f) subject tot eh control of the president.
See: Memorandum Order No. 2013-42 of the Governance
Commission for Government Owned or Controlled Corporations
(created by RA 10149 which empowers it to classify GOCCs). BSP
and GSP were declared “sui generis” GOCCS.
Bar (2003)
The President abolished the office of the presidential spokesman in
Malacanang Palace and a long standing bureau under the DILG. The
employees of both offices assailed the action of the President for
being an encroachment of legislative powers and thereby void. Was
the contention of both offices correct? Explain.
Problem:
The president issued EO no. 01 creating the Philippine Truth
Commission (PTC). It is a special body under the Office of President
proper (OPP) tasked to investigate reported cases of graft and
corruption allegedly committed during the previous administration
(Arroyo) and to recommend to the proper body the prosecution of
cases. The PTC shall accomplish its mission on or before December
31, 2012. Was PTC a valid agency?
See: Biraogo Case. And previous cases like Larin and Kapisanan ng
mga Kawani ng ERB.
BIRAOGO CASE:
 POLITICAL LAW REVIEW JD CLASS 2016-2017
Problem:
A.O. No. 36 of the president directed all departments of the national
government to establish their respective regional offices in the
Cordillera Administrative Region or CAR. DOTC Secretary X issued
MO no. 96-735 which directed the LTFRB chairman to effect the
transfer of regional functions to that office to the DOTC-CAR regional
office pending the creation of a regular regional LTFRB. Was the
memorandum validly issued? (Secretary of DOTC vs. Mabalot)
I. CREATION, REORGANIZATION AND ABOLITION
BASIC FACTORS TO CONSIDER:
1. Who has the authority to create, reorganize and/or abolish
administrative agencies?
2. What constitutes reorganization or abolition?
3. Assuming authority is properly vested, how should
reorganization or abolition be done?
4. What would be the effect/s of reorganization or abolition to
the officers that will be affected.
Modes of Creating Public Offices
1. Constitution
2. Laws/Statutes
3. By authority of law (as to when Congress can delegate
power In office)
a. Sec of DOTC vs. Mabalot – Ergo, Congress can
delegate the power to the President, who can in
turn “order” his Secretary (alter-ego) to reorganize
agencies under “qualified political agency”
doctrine and “control” power. (Supra.)
Examples of “By Authority of Law”:
• Sec of DOTC vs. Mabalot –
o GAA 1996 and 1997
o Sec 20 Book III of Admin Code gives president
residual powers
• Viola vs. Alunan III
o Sec 493 of LGC 1991 allows the BOD of the Liga
to “create such other positions as may be
deemed necessary for the management of the
chapter(s)”
Note: Main issue on reorganization is the abolition. Before Biraogo
case – that authority of President to reorganize (which includes to
create or abolish offices) is continuing.
PROBLEM: Issue in Eugenio vs. CSC
The Career Executive Service Board (CESB) created by PD NO. 1 on
September 1, 1974 as an attached agency to the Civil Service
Commission (CSC). The CSC abolished the CESB invoking Sec 17,
Title 1, Subtitle A, Book V of the Admin Code of 1987 which confers
on the Commission the power and authority to effect changes in its
organization as the need arises. Was the abolition of the CSC of CESB
valid?
generally
Answer: Note that the power to create the office comes with it the
power to abolish the same. If created by Constitution, the constitution
has to be changed. If by law, only congress can abolish it. Presidential
Decrees are statutory enactments in times of emergency. PDs are
similar to statutes hence, a law still. Hence, CESB can be abolished by
LAW only. CSC abolished CESB not by a law but by the CSC. The
abolition was not valid.
Creation, Reorganization and Abolition of Office is PRIMARILY A
LEGISLATIVE FUNCTION (Eugenio vs. CSC)
• Thus: where agency is created by LAW: only Congress can
abolish it. If created by constitution, only a constituent act
can abolish it (amendment).
• Conversely, where another one is “authorized” by law to
create, then it can also abolish, UNLESS intention of
Congress is otherwise.
3
QUESTION: (Biraogo case)
Can the president create an office? Why or why not?
ANSWER:
• Sec 31, Chapter 10 Title III of the Admin Code
• IT DEPENDS on which type of office the President it can
create; and even the length of time (ad hoc or permanent)
• The Executive is given much leeway in ensuring that our
laws are faithfully executed. The powers of the President are
not limited to those specific powers under the Constitution.
One of the recognized powers of the President granted
pursuant to this constitutionally-mandated duty is the power
to create ad hoc committees. This flows from the obvious
need to ascertain facts and determine if laws have been
faithfully executed. The purpose of allowing ad hoc
investigating bodies to exist is to allow an inquiry into
matters which the President is entitled to know so that he
can be properly advised and guided in the performance of
his duties relative to the execution and enforcement of the
laws of the land.
PRESIDENT’S POWER TO CREATE OFFICES (BIRAOGO VS. PTC,
DEC 2010)
• Subsumed in President’s Power to Reorganize “already
existing” offices within the Office of the President Proper
(OPP); Title II Chapter 8
• Limited to: Section 22
o Internal reorganization within OPP
o Transferring function of unit of OPP to a
dept/agency or vice versa;
o Transferring agency of OPP to Dept/Agency or
vice-versa per Sec 31, title III of the Admin Code
o If you read Sec 31 – you cannot conclude that
President is empowered to create a NEW office.
• Creation of NEW office NOT included
• Creation of AD HOC OFFICE/COMMITTEE can only be
justified under Faithful Execution Clause (Sec 12, Article 7
Constitution) and Power to Investigate, and NOT under
power of control.
• Cabinet secretaries not a part of OPP; they are offices in the
executive department
SEC 31, chapter 10, TITLE III, ADMIN CODE
“Sec 31. Continuing Authority of the President to Reorganize his
Office – The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions: (1) Restructure the internal organization of the Office
of the President Proper, including the immediate offices, the
Presidential Special Assistances/Advisers System and the Common
Staff Support System, by abolishing, consolidating or merging units
thereof or transferring functions from one unit to another; (2) Transfer
any function under the Office of the President to any other Department
or Agency as well as transfer functions to the Office of the President
from other Departments and Agencies; and (3) Transfer any agency
under the office of the President to any other department or agency as
well as transfer agencies to the Office of the Presidents from other
departments and agencies.“
WHAT DOES “REORGANIZATION” INCLUDE?
• Group, consolidate, bureaus and agencies to abolish
offices, to transfer functions, to create and classify
functions, services and activities and to standardized
salaries and materials
• The president is authorized to effect organizational changes
including the creation of offices in the department or agency
concerned. (Larin vs. Exec Sec [1997]; Banda vs. Ermita
[2010]; note: that the President can create offices in the
department is not anymore true per Biraogo vs. PTC case
[2010]
 POLITICAL LAW REVIEW JD CLASS 2016-2017
President’s power to Reorganize
• Sec 31, Book III of the 1987 Admin Code (Continuing
Authority of the President) [limited to OPP only and limited
to transfer of functions from OPP to Dept/Agency and vice
versa as per Biraogo case]
• Continuing Authority of the president to reorganize also
implied in GAA
• Sec 20 Book III of the 1987 Admin Code (Residual Powers)
• President’s Control Power over DEPARTMENT, BUREAUS
AND OFFICES under the 1987 Constitution (See Bagaoisan
vs. National Tobacco Authority[2013]) malicious;
PROBLEM (NLTDRA vs. CSC)
X, an LLB Graduate, was appointed Deputy RD VIII. EO 649
restructured the LRC to National Land Titles and Deeds Registration
Administration and regionalized the offices of the registers therein. All
position in the LRC were abolished and new positions were created in
the NLDTRA. The position of Deputy now not requires that the holder
MUST be a lawyer. May X validly claim that he should remain as
Deputy of Register of Deeds VII?
ANSWER: There is no such thing as vested right in holding a public
office. Public Office is not proprietary
May an Office be abolished?
“Nothing is better settled in our law than that the abolition of an office
within the competence of a legitimate body if done in good faith
suffers from no infirmity…valid abolition of offices is neither removal
nor separation of the incumbents.” (De La Llana vs. Alba, 112 SCRA
294)
How to validly effect REORGANIZATION (AND ABOLITION)
1. By legitimate body or officer and
2. Done in good faith; In determining “good faith”:
a. Economy
b. Efficiency
When IS THERE ABOLITION? Congress will say it expressly.
You cannot assume!!!
PD 1341 did not abolish but only changed, the former Philippine
College of Commerce into was is not the Polytechnic University of the
Philippines. What took place was a change in academic status of the
educational institution, not its corporate life.
When the purpose is to abolish a department or an office or an
organization and to replace it with another one, the lawmaking
authority says so. (Crisostomo vs. CA, 1996)
However, Crisostomo was not reinstated because his term was for 6
years together with the President and the office of the latter was
already changed with a new president
What does “abolition” include?
It includes the creation of an office different from the one
abolished, even though it embreaces all or the some of the duties
of the old office, AND it will be considered as a abolition of one
office and the creation of a new or different one. The same is true if
one office is abolished and its duties, for reasons of economy are
given to an existing officer or office. (National Land Titles and Deeds
Registration Adm vs. Civil Service Commission, 1993)
1. Outright abolition
2. Abolished old office and new one was created
NOTE:
Larin and Kapisanan case – an office was abolished and a new one
was created. Common Denominator of both cases, the new offices
created absorbed the functions of the abolished office. In Larin, the
abolition was invalid. In Kapisanan, there was valid abolition.
Examples of Abolition in BAD FAITH 30:00
In Larin vs. Executive Secretary:
1. For political reasons and purposely to defeat the security of
tenure
2. Involves a mere change of nomenclature of positions or
where the agency has created additional office performing
the same functions as the one already abolished.
3. Claim of economy is belied by the existence of ample funds
4. NOT Observing Secs 2 & 3 or Civil Service Law (RA 6656)
Sec 2 of the Civil Service Law (badges of bad faith) Section 4
1. When there is a significant increase in the number of
positions in the new staffing apttern of the department or
agency belie any claim of economy
2. Where an office is abolished and other same performing
not
offices are created belie any claim of efficiency
economy nor 3. Where incumbents are replaced by those less qualified in
efficiency
therms of status of appointment, performance and metir
4. Where there is a reclassification of offices in the department
efficiency
or agency concerned and the reclassified officers perform
substantially the same function as the original offices
5. Where the removal violates the order of separation provided
in Sec 3 thereof.
(See: Kapisanan ng mga Kawani ng ERB vs. Barin [1997])
Sec 3, CSL – In the separation of personnel pursuant to
reorganization, the following order of removal shall be followed:
1. Casual employees with less than 5 years of govt service
2. Casual employees with 5 years or more govt service
3. EEs holding temporary appointments AND
4. EEs holding permanent appointments provided that those in
the same categories, those are least qualified in terms of
performance and merit shall be laid first, length of service
notwithstanding.
Question:
Is the creation of a new office after the abolition of an office valid
where the newly created office assumes of absorbs the same
functions of the abolished office?
Answer: It depends. Creation of new office may either absorb of the
functions of the abolished office. If new functions are added to the
newly created office (to make it more efficient and effective and more
responsive) then it’s not necessarily an invalid abolition of an office.
Larin vs. Executive Secretary distinguished from Kapisanan ng
mga Kawani ng ERB vs Barin
substantially
the same • In Larin, the subject EO provided that: “The intelligence and
investigation office and the inspection service are abolished.
An intelligence and investigation service is hereby created
to absorb the same functions of the abolished office and
service”
• SC held that the abolition was invalid.
• In Kapisanan – “the overlap in the functions of the ERB and
efficiency of the ERC does not mean that there is no valid abolition of
the ERB. The ERC has new and expanded functions which
are intended to meet the specific needs of a deregulated
power industry.”
• In National Land Titles and Deeds Registration
Administration vs. CSC, the SC said: “If the newly created
office has substantially new, different or additional
functions, duties or powers, so that it may be said in fact to
create an office different from the one abolished, even
though it embraces all or some of the duties of the old office
it will be considered as an abolition of one office and the
creation of a new or different one. The same is true if one
office is abolished and its duties, for reasons of economy
are given to an existing officer or office.”
Basic Issue in reorganization and abolition of offices:
May a public officer validly claim violation of security of tenure if an
office is abolished as a result of abolition? Depends on the validity of
abolition.
• IF VALID – (that is, with authority and done in good faith) no
violation of security of tenure because there’s no tenure to
speak of in the first place. Tenure presupposes an existence
of an officer.
• IF INVALID – (that is, without authroity or with authority but
done in bad faith) there is violation.
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 POLITICAL LAW REVIEW JD CLASS 2016-2017
Abolition of an office and its related positions is different from removal
of an incumbent from his office. Abolition and removal are mutually
exclusive concepts. From a legal standpoint, there is no occupant in
an abolished office. Where there is no occupant, there is no tenure to
speal of. Thus, impairment of the constitutional guarantee of
security of tenure does not arise in the abolition of an office. On
the other hand, removal implies that the office and its related positions
subsist and that the occupants are merely separated from their
positions. (Kapisanan ng mga Kawani ng ERB vs. Barin [2007])
May an official of an abolished office claim VESTED RIGHT?
• There is no such thing as vested interest or an estate in
salary an office, or even an absolute right to hold it. Except
who shall
receive? constitutional offices which provide for special immunity as
can be
regards salary and tenure, no one can be said to have any
contested
vested right in an office or its salary. (National Land Titles
and Deeds Registration Administration vs. Civil Service
Commission)
What will happen to acts of agencies that are abolished?
• Although RA 650, creating the Import Control Commission,
expired on July 31, 1953, it is to be conceded that its duly
executed acts can have valid effects even beyond the life
span of said government agency. (Cebu United Enterprises
vs. Gallofin)
II. PRESIDENT’S POWER OVER ADMINISTRATIVE AGENCIES
Note of the following concepts:
• Executive power Alter-ego doctrine
• Qualified political agency doctrine
• Single executive
Alter-ego, qualified political agency doctrine and single
executive have the same import.
• Control
• Supervision
• Control and supervision
• Administrative relationships of supervision and control
• Administrative supervision
• attachment
Executive Power
• defined in the case of Marcos vs. Maglapus. Executive
power is the sum total powers enumerated in the
constitution and those are not part of the legislative and
judicial power.
Alter-ego Doctrine, Qualified Political Agency, Single Executive
• Executive power shall be vested in the President of the
Philippines (sec 1, Art VII)
• All offices in the executive department must be considered
mere adjuncts to the President
• In general, the act of the secretary is presumptively the
act of the President, UNELSS revoked or reprobated;
• One need not bring the case to the Office of the President
under Qualified Political Agency Doctrine.
exhaust all • NOTE: Where the particular Agency’s rules provide for a
and
completely mode of appeal to the OP, then the last resort is the OP,
and the alter-ego doctrine as exception to the doctrine of
prior exhaustion of administrative remedies shall not apply.
o Example: 1) Director of lands decisions approved
by the Secretary of DENR are appealed to OP; 2)
HLURB’s decisions are to be appealed to the OP
Questions:
1) May the executive secretary, acting by authority of the
President, reverse a decision of the Director of Lands that
executive
secretary v had been affirmed by the Secretary of Agricultural and
secretary
Natural resources? Without the president doing anything,
in so far as
the whether disapproving or approving, the rule is that the act of
authority is
the executive secretary performs an act by authority of the
concerned
president, the act of the executive secretary IS the act of
the president. BUT if we talk about of the act of the exec
secretary as alter-ego, it is presumptively the act of the
5
president. Eitherway, it can both be undone by the
President.
a. In Lacson vs. Magallanes case, it cannot be
argued that the President cannot undo the act of
his Department Secretary. The Alter-ego Doctrine
simple means that thea ct of the Department
Secretary is presumptively that of the
President, hence, the President himself may say
otherwise.
2) Congress passed the Fisheries Code and specifically
empowered the Secretary of Agriculture to issue rules and
regulations affecting prohibited forms of fishing, including
trawl fishing. May the President issue an EO banning trawl
fishing?
a. In Araneta vs. Gatmaitan (1957) case, the
president can ban trawl fishing. The authority
granted to the secretary is statutory BUT the
president’s power to control is constitutional.
Hence, he can take over from him such authority
and issue the EO to exercise it.
CONTROL: Department, Bureaus and offices
• The president has control over Departments, Bureaus or
Offices (under Admin Code). President’s control power is
absolute and may not be limited, much less withdrawn, by
the legislature. (De Leon vs. Carpio)
• As for all others that may be created by law, Congress
has control, unless the constitution or law provides
otherwise. Thus, in Carpio vs. Executive Secretary, it was
intended by Constitution that the National Police
Commission, although created by law, was to be under the
President’s control and that NPC was not intended to be
independent.
PROBLEM Tanada v Angara
The Safeguard Measure act (RA 8800) states: “The Secretary (DTI)
shall apply a general safeguard measure upon a positive final
determination of the Tariff Commission that a product is being
imported into the country in increased quantities, whether absolute or
relative to the domestic production, as to be a substantial cause of
serious injury or threat thereof to the domestic industry; however, in
the case of non-agricultural products, the Secretary shall first
established that the application of such safeguard measures will be in
the public interest.” May the Secretary, nonetheless, impose import
quotas despite a negative finding by the Tariff commission?
Southern Cross vs. Cement Manufacturers (2005)
• Note however that the President’s control power over
departments may still be limited by Congress in matters
which the President exercises “delegated authority” only,
such as the fixing of tariff’s rate (because in this case tariff
rate fixing is essentially legislative because it involves
taxation power.)
• Hence, it cannot be argued that an executive department
(DTI) cannot be bound by the decision of a commission
(Tariff Commission) which is created by law. In any case,
Congress’ will shall prevail.
• Here in the Southern Cross case, the Safeguard Measures
Act (RA 8000) expressly provides that it is ONLY upon a
positive finding of threat or danger to domestic industry (by
the Tariff Commission) that safeguard measures (import
quotas, etc) may be adopted by the DTI Secretary.
Beja vs. Court of Appeals
ISSUE: Philippine Ports Authority (PPA) was attached to the
Department of Transportation and Communication (DOTC). Over
personnel matters, does DOTC Secretary have jurisdiction over PPA?
RULING: As to management of personnel, an attached agency is
generally free from departmental control and interference.
(Necessarily so because interfering with personnel matter is not
necessary in achieving “policy and program coordination” which is the
essence of the relationship of “attachment”). (See: Sec 38. Chapter 7,
Book IV)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
ATTACHMENT: Sec 38, Chapter 7, Book IV
!!! (3) Attachment – (a) This refers to the lateral relationship between the
department or its equivalent and the attached agency or corporation
for purposes of poly and program coordination. The coordination
may be accomplished by having the department represented in the
governing beard of the attached agency or corporation, either as
chairman or as a member, with or without voting rights, if this is
permitted by the charter; having the attached corporation or agency
comply with a system or periodic reporting which shall reflect the
progress of programs and projects; and having the department or its
equivalent provide general policies through its representative in the
board, which shall serve as the framework for the internal policies of
the attached corporation or agency;
PROBLEM
1) A decision of a Department Secretary was elevated to the
Office of the President. The President nullified and reversed
the decision of the Secretary. Thereafter, X, the aggrieved
party, went to ta regular court and sought to nullify and set
aside the decision of the President. The Solicitor General
argued that the Court cannot reverse the decision of the
President because he was exercising the power of control
over his subordinates. Montes v CSBA
2) XYZ Transit applied for an increase in bus fares for the route
of Moon Municipality to Sun City invoking increase in fuel
expenses and updated fare rates in the route that is served
only by XYZ transit. The LTFRB denied its application, XYZ
elevated the decision to the DOTC Secretary who reversed
the decision of the LTFRB and granted XYZ/s application.
The Secretary’s decision became final and executory. The
President, however, reversed and set aside the decision of
the Secretary invoking his Power of Control over his
subordinated.
CAVEAT: President’s Control Power CANNOT reverse a final
decision of QJ body:
The president’s power of control does not apply to reviewing,
modifying or setting aside a decision of a subordinate official or body
exercising quasi-judicial power after the decision has become final
pursuant to law or the rules issued to implement it. (Antique Sawmills,
Inc vs. Zayco, 17 SCRA 316; Macailing vs. Andrada, 31 SCRA 126)
Where an agency is given quasi0judicial functions, there will be rules
promulgated by that admin agency. The rules which will have force
and effect of law will provide the period that makes it final and
executory.
President’s Power of Control extends only to the “act”, not to the
person, of the subordinate
• He may not, by his control power, suspend or remove the
official concerned without due process, except those
officials who serve at his pleasure (e.g. cabinet secretaries
and other presidential appointees who belong to the non-
competitive or unclassified service of the government. (Ang-
Angco vs. Castillo, GR no. L-17169, November 30, 1963)
Note: While the president has power of control over secretaries and
officers within the executive department, in so far as removal or
discipline of a public official is concerned, the president has authority,
to remove these officials UNLESS the law provides otherwise. Under
CS Law, those belonging to the civil service can only be removed with
just cause. Presidential appointees, serving at the pleasure of the
president, may be removed without just cause. Exception – although
appointed by the President, they are still classified under the civil
service.
• The power of control of the President may extend to the
power to investigate, suspend or remove officers and
employees who belonged to the executive department if
they are presidential appointees or do not belong to the
classified service, for such can be justified under the
principle that the power to remove is inherent in the power
to appoint. With regard to those officers whose
appointments are vested on heads of depts., Congress has
provided by law for a procedure for their removal precisely
6
in view of this constitutional authority. One such law is the
Civil Service Act of 1959. (Note: Angco vs. Castillo case
involved a Collector of Customs, appointed not by the
President but by the Secretary of Finance per provision of
law.)
Administrative Relationships
• Supervision and control
• Administrative supervision
• Attachment
See: Sec 38, Chapter 7 Book IV of the 1987 Admin Code
FUNDAMENTAL POWERS OF THE ADMINISTRATIVE AGENCIES
1. Quasi-Legislative
2. Quasi-Judicial
3. Implied Powers
Definitions, Distinction of terms
• Legislation – plenary (full or unqualified subject only to
constitutional and inherent limitations), discretion as to
WHAT the law shall be. This discretion cannot be
delegated.
• Quasi-Legislative (QL) – qualified, subject to statutory and
constitutional limitations, discection as to HOW the law
shall be enforced. This discretion can be delegated.
• Other terms for QL: subordinate legislation; rule-making
power
• Judicial power – adjudication of controversy by
determining rights or duties by the application of law;
interpretation of law is conclusive
• Quasi-Judicial (QJ) – involves determination of facts in a
judicial manner (power involves reception of evidence,
evaluation of evidence, determination of facts based on
evidence, and application of law to the facts of the case to
determine rights and duties/obligations of specific parties);
interpretation of law is initial;
BUT WHY GRANT AGNECY QJ FUNCTIONS?
• Since the implementation of law requires understanding of
the law, administrative agencies should also be authorized
to interpret the law and apply it to the given condition or set
of facts
• There is need for the active intervention of administrative
agencies in matters calling for technical knowledge and
speed in countless controversies
• In this era of clogged dockets, the need for specialized
knowledge, expertise and capability to hear promptly
disputes on technical matters has become indispensible.
PROBLEM
XYZ company, a public utility company, applied for upward
adjustment of its rates before the LTFRB. Pending the petition,
LTFRB, without previous hearing granted a general nationwide
provisional increase of rates in an order dated June 20, 2015 (1st
order). LTFRB then required XYZ and opposites to present evidence
within a period of 15 days after which the application shall be
submitted for resolution. The LTFRB denied XYZ’s application in an
order dated August 3, 2105 (2nd order). What functions of an
administrative agency are involved in this case?
• 1st order – quasi-legislative
• 2nd order – quasi-judicial
BAR (2000)
The maritime industry authority (MARINA) issued new rules and
regulations governing pilotage services and fees and the conduct of
pilots in PH ports. This it did without notice, hearing nor consultation
with harbor pilots or their associations whose rights and activities are
to be substantially affected. The harbor pilots then filed suit to have
the new MARINA rules and regulations declared unconstitutional for
having been issued without due process. Decide the case.
 characterize the function involved: POLITICAL LAW REVIEW JD CLASS 2016-2017
Quasi-Legislative
Exhaustion of Administrative Remedies
Primary Jurisdiction
BAR 2015 -not applicable
RTC - incapable of pecuniary estimation
can still be exercised agter a period mentioned by
the law
The secretary of the DENR issued MO 123-15..ABC Corp filed a case o In Azarcon, the main issue is whether, in the 1st
in court seeking for its nullification claiming it as unreasonable. The place, the power exists. Unlike constitutional
DENR moves to dismiss the case on the ground that ABC Corporation bodies, administrative agencies must locate in
has failed to exhaust administrative remedies…If you were the judge, the statue relied upon a grant of power
will you grant the motion? (express or implied) before it can exercise it.

Note: Rule is that there are 2 important principles when it comes to PROBLEM
judicial review: 1) exhaustion of admin remedies and 2) primary The pollution adjudication board (PAB) of the DENR was created in
jurisdiction. Note, however, no. 1 is only applicable only when the order to “regulate and adjudicate pollution cases”
administrative agency is exercising quasi-judicial functions. If it is
quasi-legislative act, then prior exhaustion of admin remedies it not 1. May the PAB issue rules of procedure? YES. Implied from
proper. the power to adjudicate
2. May the PAB divide itself into several divisions even if the
1) How do you distinguish between quasi-legislative (QL) law does not provide for such power? See: Realty
functions and quasi-judicial functions? Exchange Venture Corp vs. Sendino

2) Why is it important to distinguish between QL and QJ Realty Exchange Venture Corp vs. Sendino
functions?
Rules of procedure of admin bodies should be liberally construed in
QUASI-LEGISLATIVE QUASI-JUDICIAL order to enable it to effectively exerise its function. Even if the law
Prospective Retrospective does not expressly provide for it, a QJ body may divide itself into
General Application Specific Parties Involved several divisions and assign to it the power conferred upon the body.
(individual) Notice and Hearing (in Notice and Hearing (in court) Applying the doctrine of necessary implication.
court) NOT required; ONLY required
REQUIRES PUBLICATION, as a not public hearing 3. May the PAB issue a Cease and Desist Order even if the law
general rule (Tanada vs. Tuvera) but reception of
evidence is silent on whether the PAB has this power? YES.
In rate fixing: Required that ALL Necessary implication from the power to regulate. See:
persons are given the chance to Laguna Lake Development Authority vs Court of Appeals
air out their side after proper
notice – like public hearing. Laguna Lake Development Authority vs. CA
No need for prior exhaustion of Sets different requirements for
administrative remedies resort to court: Doctrine fo prior The SC said that while the law does not expressly grant the PAB the
exhaustion of administrative
power to issue a cease and desist order, the power is however
remedies applies (See: Smart v.
NTC) IMPLIED in the express power to REGULATE, without which the
In QL, RTC generally. QJ decisional are, generally power becomes toothless.. (applying DOCTRINE OF NECESSARY
brought to the CA/SC because IMPLICATION)
QJ agencies are deemed equal in
rank with RTC 4. May the PAB issue a writ execution if the law does not even
mention about this power? YES. Implied from the power to
adjudicate, otherwise, the power to adjudicate may be
IMPLIED POWERS rendered toothless where it may be decided and be final yet
cannot be executed.
• Determinative Powers – Enabling powers, directing
powers, dispensing powers, examining powers, summary GSIS vs. Civil Service Commission
powers
• Implied Powers – implied from express powers, such as It would appear absurd to deny CSC the power to enforce or order
the power to promulgate rules of procedure by a QJ body. execution ot is decisions, resolutions, or orders…The grant to a
(Doctrine of Necessary Implication) tribunal or agency of adjudicatory power, or the authority to hear
o Laws develop and are flexible. Congress cannot and adjudge cases, should normally and logically be deemed to
anticipate each and every condition to which a include the grant of authority to enforce or execute the judgments
particular law may be applied. It’s impossible to it thus renders, UNLESS the law otherwise provides.
foresee and anticipate each and every condition.
So implied powers are important to adapt to such
conditions.
LIMITATION to the DOCTRINE OF NECESSARY IMPLICATION
CONSTRUCTION – how should the exercise of powers of admin
agencies construed, liberally or strictly? Caveat: The DOCTRINE of necessary implication does not authorize
the exercise of powers greater than the express powers.
• Matienzo vs. Abellana case – “the authority should be
liberally construed in the light of the purposes for which it While we can infer or imply form express powers, the implied powers
was created, and that which is incidentally necessary to a SHOULD not be greater than the powers expressly granted.
full implementation of the legislative intent should be upheld
as being germane to the law.” o Power to investigate was granted, adjudication of the
o If the liberal interpretation carries out the very information gathered from investigation is GREATER than
purpose of law – then it should be adopted the power expressly granted. See: Carino vs. CHR
especially when the strict interpretation will defeat o Power to regulate does not include the power to prohibit
its purpose.
• But, Azarcon case says: “…while the BIRR and authority to QUASI-LEGISLATIVE POWER
require Petitioner Azarcon to sign a receipt for the distrained
truck, the NIRC did not grant it power to appoint Azarcon as • The doctrine of “Subordinate Legislation”. While the
public officer” Admin bodies have only the powers expressly making of laws is a non-delegable activity that
granted or necessarily implied in the exercise thereof. correspondents solely to Congress, nevertheless the latter
(strictly?) may constitutionally delegate authority to promulgate
• NOTE: rules and regulations to implement a given legislation
o In Maitienzo, the existence of the power was not and effectuate its policies, because the legislature often
disputed. The issue was whether or not the power finds it impracticable (if not impossible) to anticipate and

7
 POLITICAL LAW REVIEW JD CLASS 2016-2017

provide for the multifarious and complex situations that may it; indicates the circumstances under which the legislative
e met in carrying the law into effect. (People vs. Exconde) command is to be effected

NATURE OF SUBORDINATE LEGISLATION Must standard be determinate?

o It is elementary that rules and regulations issued by
form
part of administrative bodies tointerpret the law which they are
the law
entrusted enforce, have the force of law and are entitled
to great respect. Administrative issuances partake of the
nature of a statute and have in their favor a presumption
of legality…Unless an administrative order is declared
invalid, courts have no option but to apply the same.
(LBP vs. Celada, 2006)
Fundamental limitation:
o It must only be sufficiently determinate or determinable (Edu
vs. Ericta) early warning device
Examples of SUFFICIENT STANDARD?
o Fair and equitable employment practices
o Public interest
o Justice and equity
o Public convenience and welfare; public safety
o Simplicity, economy and efficiency

• Administrative Rules and Regulations are intended to NOTE: However, the standard should not allow UNBRIDLED
carry out, not to supplant nor to modify, the law. An DISCRETION (ex: “may see fit” in Ynot vs. IAC;” Manual that does not
administrative agency cannot amend an act of provide system of review” by the Secretary in Echegaray vs. Sec. of
Congress. In case of discrepancy between a provision of Justice)
statute and a rule or regulation issued to implement said
Doctrine of “potestas delegata non delegari potest”
statute, the statutory provision prevails. (Echegaray vs. Sec.
of Justice [1998])
o KMU vs. Garcia – Public Service Commission allowed bus
operators to fix fare rates;
o Completeness test
o American Tobacco vs. Director of Patents – What has
o Sufficient standard test
been delegated was only the discretion to ascertain facts
but did not include the discretion to decide on application
PROBLEM
for patents. AS LONG as the person mandated or delegated
Congress has decided to ban and penalize the use of vehicles 10 by law has the final say.
years or older in any public highway. The details of the law will be
Exception to the principle of non-delegation of delegated power:
spelled out in the implementing rules and regulations that will be
issued later.
1. Sec 20, par 2, Article VI (Constitution)
2. Sec 23, par 2, Article VI – emergency powers
1. What important provisions should be found in the law to
3. Delegation to the people at large – Sec 32, Article VI –
make it work?
initiative and referendum
a. Penalties
4. Delegation to LGU
b. Who is the administrative agency
5. Delegation to administrative agencies
c. Reason of the law
d. Definition of “vehicles”, “public high-way”
Kinds of Admin Regulations
e. Determination of age of vehicle
2. How do you make sure that the IRR will be valid?
o Legislative (rule-making)
o Interpretative
See: Edu vs. Ericta case
o Internal not affect the public
TESTS OF DELEGATION
How to distinguish one from the other:
• Completeness test – the law must be complete in all its
o If it did not add any duty or detail that was not already in the
term and conditions when it leaves the legislature such that
law, it mere interpretation.
when it reaches the delegate the only thing he will have to
do is enforce it.
But why distinguish one from the other?
• Sufficient Standard Test: There must be adequate
guidelines or limitations in the law to map out the o Because of PUBLICATION. See: Tanada vs. Tuvera case
boundaries of the delegates authority and prevent the
delegation from running riot. Significance of distinction:
• Both tests are intended to prevent a total transference of
legislative authority to the delegate. (Easter Shipping Lines o Interpretation of rules does not, as a general rule,
vs. POEA, supra) require publication, in order to comply with administrative
due process. Also, rules are generally binding on courts,
Note: Should both be complied with? Most of the SC cases, suggest unlike “interpretations” pf rules which are at best
that both must be complied with. “advisory” subject always to judicial interpretation.
o But in Eslao vs. COA (1994) the Supreme Court ruled that:
COMPLETENESS TEST
“administrative regulations and policies enacted by
administrative bodies to interpret the law have the force
When is a law complete for purposes of delegation? It must identify:
of law and are entitled to great respect.”
1. The SUBJECT MATTER to be delegated
Tanada vs. Tuvera (1986)
a. In case of Eastern Shipping – POEA was
authorized to provide uniform pro-forma
Must be published (affecting the public):
employment contract.
2. WHO will do it
o Statutes
3. HOW the delegate will do it (scope of authority)
o PD
o EOs that are legislative In character
SUFFICIENT STANDARD TEST
o Administrative rules

What is meant by sufficient standard?

Need not be published:
o One which defines legislative policy, marks its limits, maps
o Interpretative rules
out its boundaries and specifies the public agency to apply
o Internal rules (inter office communications, memoranda)
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 POLITICAL LAW REVIEW JD CLASS 2016-2017
o LOI to subordinates Letters of Instructions
Requisites for Validity of Administrative Regulations:
1. Authorized by Congress
2. Within the Scope of Authority (not ultra vires)
3. In accordance with prescribed procedure
4. Fair and reasonable
(Dagan vs. Philippine racing Commission citing Exec. Sec. vs.
Southwing Heavy Industries)
1.) Authorized by Congress
Executive Secretary vs. Southwest Heavy Industries (2006):
• It was argued that Section 3.1. of EO 156 (which banned the
importation of used vehicle) lacked any statutory basis for
the President to issue the same because it is an exercise of
police power vested on the legislature.
• The SC ruled that the TCC (Sec 401 [Flexible Clause])
authorized the President, in the interest of national
economy, general welfare and/or national security, to, inter
alia, prohibit the importation of any commodity.
2.) Within the Scope of Authority (Not Ultra Vires)
People vs. Maceren (1977):
• In implementing the provisions of the Fishing Law, the
Secretary of Agriculture and Natural Resources cannot
prohibit “electra fishing” because the statute only prohibited
fishing with the use of “obnoxious or poisonous substance”.
The administrative rule cannot be extended to amending
or expanding the statute it seeks to implement.
Executive Secretary vs. Southwing Heavy Industries (2006):
• “In the instant case, the subject matter of the laws
authorizing the President to regulate or forbid importation of
sued motor vehicles, is the domestic industry. EO 156,
however, exceeding the scope of its application by
extending the prohibition on the importation of used cars to
the Freeport. The domestic industry which the EO seeks to
protect is actually the customs territory…”
specific
PROBLEM: rule!!!
RA 7166 provides that “during the election period, no person shall
bear, carry or transport firearms or other deadly weapons in public
places, including any building, street, park, private vehicle or public
conveyance.” The Comelec was empowered to issue rules to
implement RA 7166. In its resolution, the Comelec defined “firearm”
to include “air gun, airsoft guns and their replica/imitation in whatever
form”. Is the Comelec Resolution valid?
Holy Spirits Homeowners’ Association vs. Defensor (2006)
• Where a rule or regulation has a provision not expressly
stated or contained in the statue being implemented, that
provision does not necessarily contradict the statute. A
legislative rule is in the nature of subordinate legislation,
designed to implement a primary legislation by providing the
details thereof.
• All that is required is that the regulation should be
germane to the objects and purposes of the law; that the
regulation be not in contradiction to but in conformity with
the standards prescribed by the law.
Atty. Orceo vs. Comelec (2010)
• The COMELEC had the authority to promulgate Resolution
No. 8714 pursuant to Sec 35 or RA no. 7166. It was granted
the power to issue the implementing rules of Secs. 32 and
33 of RA no. 7166. The COMELEC was mandated to
provide the details of who may bear, carry or transport
9
firearms or other deadly weapons, as well as the definition
of “firearms,” among others.
• These details are left to the discretion of the COMELEC,
which is a constitutional body that possesses special
knowledge and expertise on election matters, with the
objective of ensuring the holding of free, orderly, honest,
peaceful and credible elections…
• Where a rule has a provision not expressly stated or
contained in the statue being implemented, that
provision does not necessarily contradict the
statute…All that is required is that the regulation should
be germane to the objects and purposes of the law; that
the regulation be not in contradiction to, but in conformity
with, the standards prescribed by the law.
PROBLEM
The Civil Aeronautics Board (CAB) issued two rules: (1) a rule
prohibiting the overbooking by domestic airlines to more than 10%
and (2) a rule requiring all domestic airlines to shoulder all hotel
accommodation, meal and transportation expenses of bumped off
passengers due to overbooking.
(A) Is CAB required to notify and hear all domestic airlines before
issuing the rules?
(B) Is CAB required to publish the rules? Yes, QL function
3.) In accordance with Prescribed Procedure
• Is Prior Notice and Hearing required?
• If YES, in what rule is prior notice and hearing required?
• Does “Rate-Fixing Power” require “Prior notice and
hearing”? What other requirements should be complied with
in regard to “rates”?
GENERAL RULE: A statue may provide that an administrative
regulation of general application (as opposed to administrative
adjudication) would not require “previous notice and hearing”.
Otherwise, Section 9 of Chapter 2, Book VII of Admin Code (Public
Participation Requirement) should be observed (circulate notices
and afford interested parties to submit views prior to adoption of
rule)
In case of RATE-FIXING RULE: (of general application), PUBLICATION
IN NEWSPAPER IS REQUIRED AT LEAST 2 WEEKS BEFORE THE
INITIAL HEARING )Public Hearing)
Note: Book VII of the Admin Code does not apply to Congress, the
judiciary, constitutional commissions, military establishments in
personnel matters, board of pardons and parole, and state universities
and colleges (see also GMA vs. COMELEC[2014])
• Exceptions: (NOTICE AND HEARING, REQUIRED)
o When the statute itself requires it
o When the administrative rule substantially adds to
or increases the burden of those directly affected.
• Examples of Exceptions:
o EO 72 creating the Energy Regulatory Board
which provided for the rule that the ERB may fix
the prices of petroleum products only “upon
notice and hearing”, although “provisional rates”
may be issued ex parte.
o CIR vs. CA (261 SCRA 236); See also GMA
Network vs. Comelec (2014)
CIR vs. CA (261 SCRA 236)
• When an administrative rule is merely interpretative in
nature, its applicability needs nothing further than its bare
issuance for it gives no real consequence more than what
the law itself has already prescribed. When the
administrative rule goes beyond and substantially add to
or increases the burden of those governed, it behooves
the agency to accord those directly affected a chance to
be heard and thereafter to be duly informed, before that
new issuance is given the force and effect of law.
 POLITICAL LAW REVIEW JD CLASS 2016-2017
BUT, FILING COPIES WITH UP LAW CENTER – MANDATORY!!
• The Adm Code of 1987, Section 3 thereof, expressly
requires each agency to rule with the Office of the
National Administrative Register (ONAR) of the
University of the Philippines Law Center three certified
copies of every rule adopted by it. Administrative
issuances which are not published or filed wih the ONAR ae
ineffective and may not be enforced. GMA vs. MTRCB
[2007]) [2009 Bar] ineffective not invalid
RULES WITH PENALTIES
• Requirements for VALIDITY:
o The Statute ahs declared the violation punishable
o The statue must have imposed and specified the
VOID if not published;
cannot be penalized
penalty for the violation
under it o The rule must be PUBLISHED.
NOTE: Under the Admin Code, publication may omit the inexpedient
portions of the rule. But, where the rule carries a penal clause, it must
be published in full.
The word “laws” in article 2 (article 1 of the old Civil Code) includes
circulars and regulations which prescribe penalties. Publication is
necessary to apprise the public of the contents of the regulations and
make the said penalties binding on the persons affected thereby.
(citations omitted.) (Pesigan vs. Angeles, GR no. 64279, April 30, 1984)
4.) FAIR AND REASONABLE
o See Lupangco vs. CA 91998): PRC’s rsolution which
provides that “no examinee shall attend any review class,
briefing, conference or the like conduct by, or shall receive
any handout, review material, or any tip from any school
college of university, or any review center…during the three
days immediately preceding every examination day.”
o See also GMA vs. COMELEC (2014): The unreasonable
result of the subject COMELEC resolution (redefining airtime
limits for campaign in broadcast and radio) would be that a
candidate will only have about 81 seconds per day in one
station or about 27 seconds in three stations.
QUASI-JUDICIAL POWER
How to determine if QJ is involved:
• The function of granting, denying, suspending or
revoking license, permit, franchise or certificate of
public convenience and/or necessity is not just purely
administrative, but quasi-judicial or adjudicative function
because it is dependent upon the ascertainment of facts
by the agency upon which a decision is to be made and
rights and liabilities determined. (Sanado vs. Court of
Appeals)
• In determining whether an agency exercises QJ, the nature
of the pwoers or functions given to it by the constitution
ro law must be examined. So that, in case of CHR, for
example, just because it possesses the power to
“investigate” does not necessarily give it the power to
“adjudicate”, for these 2 powers/functions do not have the
same meaning and scope. In the former, there is no
application of law or settlement of dispute, while in the latter
there is. (Carino vs. CHR, 204 SCRA 483)
Quasi-judicial proceeding involves:
• Taking and evaluating evidence
• Determining facts based pon the evidence presented
• Rendering an order or decision supported by the facts
proved
• Determining what the law is
• Adjudicating respective rights and obligations of the parties
See Encinas vs. Agustin [2013]: The doctrine of res judicata applies
only to judicial and quasi-judicial proceedings and not to the exercise
of administrative powers (those powers that are purely administrative
(e.g. fact-finding or investigation in nature as opposed to
administrative proceeding sthat take on a quasi-judicial character)
10
The public prosecutor exercises investigative powers in the
conduct of preliminary investigation to determine whether, based
on the evidence presented to him, he should take further action by
filing a criminal complain in court. In doing so, he does not
adjudicate upon the rights, obligations or liabilities of the parties
before him… Hence, the constitutional and administrative code
requirement that decisions should “state the facts and the law upon
which it is based” is not applicable to DOJ resolutions. (Meralco vs.
Atilano, GR no 166758, June 27, 2012)
Why distinguish QL from QJ?
• QJ requires notice and hearing, QL only requires publication
as a general rule.
• QJ sets different requirements for resort to court: e.g.
doctrine of prior exhaustion of administrative remedy
applies.
• QJ decisions are, generally, brought to the CA/SC because
QJ agencies are deemed equal in rank with RTC. If QL only,
RTC generally.
Policy of Courts in QJ Power
• In this regard, the policy of courts is not to interfere with
the “factual findings” of administrative agency under the
principle of separation of powers and co-equality of
branches of government, unless there is clear of showing
of capricious and whimsical exercise of judgment or
grave abuse of discretion. (Sanado, supra)
Status of QJ Body vis-à-vis Court
• “Quasi-Judicial Bodies’ are deemed co-equal with the
RTC. Hence, their decision should be elevated to the Court
of Appeals (or the Supreme Court if warranted depending
on the relief, and not to the RTC, except in DAR initial
determination of just compensation.
• See Rule 43 of the Rules of Court (Petition for Review from
decisions of QJ bodies).
• See PCGG vs. Pena [1988]
Heirs of Vidad vs LBP (2010)
Q: Considering that in the determination of just compensation, the
DARAB may be deemed to be exercising a quasi-judicial function,
where will the aggrieved party question its decision, the RTC or the
CA?
• The procedure for the determination of just compensation
under RA 6657 commences with LBP determining the value
of the lands under the land reform program. Using LBP’s
valutaion, the DAR makes an offer to the landowner through
a notice sent to the landowner, pursuant to Section 16 (a) of
RA 6657.
• Contrary to petitioner’s argument, the
PARAD/RARAD/DARAB do not exercise concurrent
jurisdiction with the SAC in just compensation cases. The
determination of just compensation is judicial in nature.
QJ’s Body decision is always subject to Judicial Review:
• QJ’s function includes investigation or ascertainment of the
existence of facts, hold hearings, draw
conclusions…However, this does not make the QJ bodies
courts or parts of the judicial system, so that they (or the
executive debt) cannot impose judgment upon the judiciary.
Hence, even if the law provides that a QJ body’s
decision is final, executory and “binding upon agencies
having jurisdiction over the case”, it cannot bar the
judiciary to review the decision. (United Residents of
Dominican hills)
Requirement for Valid Exercise of Quasi-Judicial Power
JURISDICTION:
• Globe Wireless Ltd vs. Public Service Commission 147
SCRA 269: Adjudicative power is limited by law. Allowed
are only those “expressly granted” or necessarily from
 POLITICAL LAW REVIEW JD CLASS 2016-2017
those granted in law creating the agency. PSC’s
jurisdiction is limited by law to its power over Globe in
matters of “rates” which it may charge the “public”,
excluded is the determination of Globe’s liability in failing to
deliver telegraphic message by the complainant/addressee
or for poor services.
• The Court has consistently held that where no employer-
employee exists between the parties and no issue is
involved which may be resolved by reference to the Labor
Code, other labor statutes, or any collective bargaining
agreement, it is the regional trail court that has jurisdiction…
In their complaint in the civil case, petitioners do not seek
any relief under the Labor Code but the payment of a sum
of money as damages on account of respondents’ alleged
tortious conduct. The action is within the realm of civil law
and, hence, jurisdiction over the case belongs to the regular
courts. (Marino Jr. vs. Gamilla, GR no. 132400 [January 31,
2005], 490 Phil 607-623)
PROBLEM:
X was the collector of the City Treasurer’s Office of Mandaue City. For
leaving his post during office hours without consent of the City
treasurer, the latter preventively suspended X for neglect of duty. As X
was absent in the following day, the notice of preventive suspension
and the subpoena to appear in an investigation was sent to his last
known address. The notices, however, did not reach X on time. X only
received the results of the investigation an the order of the City
Treasurer to initiate administrative action with the DOF.
DUE PROCESS:
Utto vs. Comelec, 375 SCRA 523
• The essence of administrative due process is simply
“opportunity to be heard” or “opportunity to explain
one’s side” or “opportunity to seek a reconsideration” of
the action or ruling complained of.
Garcia vs. Pajaro, 384 SCRA 112:
• Technical rules of procedure and evidence are not strictly
applied in administrative proceedings. One may be heard
not solely by verbal presentation in an oral argument,
but also through pleadings. Administrative due process
is deemed satisfied for as long as a person is given
opportunity to “seek reconsideration” of an action or a
ruling.
Ang Tibay v. CIR, 69 Phil 635:
• Requisites of “administrative due process”, enumerated
Rivera vs. CSC, 240 SCRA 43
• Requirement of “impartiality” of the tribunal applies to
“administrative due process.
Atienza, Jr. vs. Comelec (2010)
• The requirements of administrative due process do not
apply to the internal affairs of political parties. The due
process standards set in Ang Tibay cover only
administrative bodies created by the state and through
which certain governmental acts or functions are
performed.
Exceptions to Notice and Hearing as Requirement for Due
Process:
1. Summary abatement of nuisance per se (police power)
2. Preventive suspension (it is not a penalty)
3. Padlocking of filthy restaurant, theaters, etc (they are
actually nuisance per se)
4. Cancellation of passport of accused (pragmatism, accused
may escape)
5. Summary distraint and levy (lifeblood theory of taxation,
need for taxes)
6. Grant of Provisional Authority (temporary only)
11
Energy Regulatory Board vs. Court of Appeals:
• To understand the nature of “substantial evidence”, this
“hierarchy of evidentiary values”:
1. Proof beyond reasonable doubt (moral certainty) –
criminal
2. Clear and convincing evidence (firm belief or
conviction) – extradition
3. Preponderance of evidence (greater weight) – civil
4. Substantial evidence (adequate to support a
conclusion) – adminsitrative
QUESTION:
May an administrative agency rely on affidavits submitted to it in
rendering a decision when the affiants had not been called to testify
and to identify their affidavits?
What about Affidavits?
PLDT vs. Tiamson (2005):
• Although admissible in evidence, affidavits being self-
serving must be received with caution. This is because the
adverse party is not afforded any opportunity to test their
veracity. By themselves, generalized and pro forma
affidavits cannot constitute relevant evidence which a
reasonable mind may accept as adequate. There must be
some other relevant evidence to corroborate such
affidavits.
Minimum standards of “substantial evidence”
The standard of substantial evidence is satisfied when there is
reasonable ground to believe that respondent is responsible for
the misconduct complained of, even if such evidence might not be
overwhelming or even if such evidence might not be overwhelming or
even preponderant…it should be enough for a reasonable mind to
support a conclusion. (Ombudsman vs. Bungubung[2008])
While rules of evidence are not strictly applied, the following principles
must still be observed:
• “He who alleges must prove his allegation”
• “Mere allegation is not evidence”
• “Self-serving evidence is a weak evidence”
• “In the case of contradictory declaration and statement,
greater weight is generally given to positive testimonies than
to mere denials.” (supra)
• Affidavit of Desistance may be considered.
Related Powers:
• Power to promulgate own Rules of procedure – can be
implied in the QJ function granted by law to the agency
under the doctrine of “necessary implication”
• Subpoena power
• Contempt power
Rules of Procedure
Provident Tree Farm vs Batario, Jr. 231 SCRA 463:
• Doctrine of Necessary Implication gives a QJ body the
power to adopt method of procedure to carry out its
functions, PROVIDED, the procedure will not violate
fundamental rights or encroach rule making power of the SC
Power to promulgate rules of procedure
• Implied in every QJ body
• Constitution empowers QJ bodies such power
• Should the rules be approved by the SC? 10/29 54:00no as
long as it will
• Must not, however, diminish, increase, or modify
not curtail the
substantive rights? ___ power of SC
• Rules of Court apply suppletorily
• Subject to SC’s modification
• Technical rules, not generally applicable
• Prohibition on forum-shopping applies
 POLITICAL LAW REVIEW JD CLASS 2016-2017
Subpoena and Contempt Powers
Carmelo vs. Ramos, 6 SCRA 836:
• Subpoena and contempt powers are not inherent in
administrative bodies because these powers are essentially
judicial in nature. Hence, it can only be exercised if (1) duly
allowed by law and (2) in connection with the matter
they are authorized to investigate.
Authorized by Law
• To (1) directly exercise the power OR (2) seek the aid of the
Regional Trial Court under the ROC
• The authority may be found in the:
1. Law/charter itself OR
2. Section 13, Chapter 3, Book VII of the Admin
Code (in cases of “agencies” created by the
Admin Code, e.g. bureaus and “in contested
case” only)
• Lastimosa vs. Vasquez, 243 SCRA 497: contempt power is
“expressly” granted to the Ombudsman by law
(Ombudsman act)
• If agency is created not by Admin Code but by special
charter (law), the authority given must at least be the
authority to “take testimony or evidence” before Section 13
(issue Subpoena and in case of disobedience seek the aid
of RTC) may be invoked.
• Hence, authority to merely “investigate” does not confer the
QJ body the power to cite a person n contempt under the
Admin Code.
Forms of Decision
GENERAL RULE: The requirement in the Constitution that the decision
of the “court” should clearly and distinctly state the facts and the law
on which it is based does not apply to “quasi-judicial bodies” because
they are not courts;
However, Sec 14, Book VII of the Admin Code mandates the same
requirements.
Note: Book VII does not apply to Constitutional Commissions, among
others.
Res Judicata in Administrative Decisions
San Luis vs. Court of Appeals, 174 SCRA 258
• Although a judicial concept in origin, “res judicata” now
applies to QJ decisions. The elements are: (a) sameness of
causes of actions, (b) sameness of issues, (c) identity of
parties/privies
NOTE: In Board of Commissioners vs. Dela Rosa 197 SCTA853, there
is no res judicata in administrative adjudication of citizenship
unless certain requisites (3) are present: Supreme Court Decision,
main issue, and SolGen’s participation.
MODES OF JUDICIAL REVIEW
Quasi-Legislative Acts/Rules:
• RTC (incapable of Pecuniary Estimation; validity)
Quasi-Judicial Decisions:
• RULE 43 (to the CA) [excluding Labor Code decisions];
Petition for Review VA is included
o Facts, Law or Mixed Questions of Facts and law
• RULE 45 (to the SC) ; Petition for Review on
Certiorari/Appeal by Certiorari)
o Pure Questions of Law
• RULE 65 (to the CA – following hierarchy of Courts
doctrine); Petition for Certiorari
o Grave Abuse of Discretion amounting to..
Subjects of Judicial Review:
Ombudsman vs. Bungubung (2008)
12
• Petition for review on certiorari filed with the SC under
Rule 45 of the Revised Rules of Court shall raise only
questions of law. A question of law has been defined as
one that does not call for any examination of the probative
value of the evidence presented by the parties.
• The SC does not sit as an arbiter of facts for it is not the
function of the SC to analyze or to weigh all over again
the evidence already considered in the proceedings
below. Such factual findings can be questioned only if,
among other exceptions, the findings of fact are conflicting
and the findings of the Court of Appeals are contrary to
those of the lower court and/or administrative agency.
BASIC RULES ON REVIEW
1. Decisions must be based on SUBSTANTIAL EVIDENCE
ONLY;
2. Findings of facts made therein are to be respected so long
as they are supported by substantial evidence; Hence, it is
not for the reviewing court to weight the conflicting
evidence, determine the credibility of witnesses, or
otherwise substitute its judgment with that of the QJ body;
3. Administrative decisions in matters within the executive
jurisdiction can only be set aside on proof of:
a. Gross abuse of discretion
b. Fraud OR
c. Error of law
See: Ombudsman vs. Bungubung (2008) citing Montemayor vs.
Bundalian (2003)
DOCTRINE OF PRIMARY JURISDICTION
• Applicability: When regular courts have also concurrent
jurisdiction over the subject matter
• Rule: The regular court refers the matter to the
administrative agency which has the competence to resolve
the controversy (ordinarily requiring expertise or skill)
• Effect: The judicial proceeding is suspended pending
referral to the QJ body
DOCTRINE OF PRIOR EXHAUSTION OF ADMINSITRATIVE
REMEDIES
• Applicability: When referral to administrative agencies and
resort to administrative remedies are made condition
precedent before the controversy can be brought to court
• Rule: The regular court will dismiss the case if there is non-
compliance (unless waived by failure to invoke it)
• Effect: Dismissal without prejudice
• Note: There are several exceptions
EXCEPTIONS:
• Pure Questions of Law
• Agency is estopped
• Act is patently illegal
• Urgent need for judicial intervention
• Small claims
• Irreparable Damage will be suffered
• No other plain, speedy and adequate remedy
• Strong public interest
• Private land
• Quo Warranto
 POLITICAL LAW REVIEW JD CLASS 2016-2017
LAW ON PUBLIC OFFICERS
1. What is a public office?
2. Who is a public officer?
3. Who is a public official?
4. What is the importance of knowing the meaning of a public
officer?
Sec 2 (9) Introductory Provisions of Admin Code:
• Office – refers within the framework of governmental
organization, to any major FUNCTIONAL UNIT of a
department or bureau including regional offices. It may also
refer to any position held or occupied by individual persons,
whose functions are defined by law or regulation.
Sec 2(14), Introductory Provisions, Admin Code:
• Officer – as distinguished from “clerk” or “employee”, refers
to a person whose duties not being f a clerical or manual
nature, involves the exercise of discretion in the
performance od the functions of the government. When
used with reference to a person having authority to do a
particular act or perform a particular act in the exercise of
governmental power, “officer includes any governmental
employee, agent or body having authority to do act or
exercise that function.
Sec. 3 (b) of RA 6713 – Code of Conduct and Ethical Standards of
Government employees
• Public Official – include elective and appointive officials
and employees, permanent or temporary, whether in the
career or non-career service including military and police
personnel, whether or not they receive compensation,
regardless of amount.
Art. 203 of the Revised Penal Code
• “Who are public officers” – For purposes of applying the
provision of this and the preceding titles of this book, any
person who, by direct provision of the llaw, popular election
or appointment by competent authority, shall take part in
the performance of public functions in the Government or
in any of its branches public duties as an employee, agent
or subordinate official, of any rank or class, shall be deemed
to be a public officer.
RA 7080 (Plunder Law):
• Section 1 (a) – “any person holding any public office in the
Government of the Republic of the Philippines by virtue of
an appointment, election or contract.”
Mechem’s definition
A public office is the right, authority and duty, created and conferred
by law, by which, for a given period, either fixed by law or enduring at
the pleasure of the creating power, an individual is invested with some
portion of the sovereign functions of the government, to be exercised
by him for the benefit of the public. The individual so invested is a
public officer. (Laurel vs. Desierto, GR no. 145368 April 12, 2002)
Note: Laurel’s position is NCC chairman. SC was confronted won he
is a private person or a public official? The important element here:
invested with some portions of the sovereign function. His function
was an executive function. Therefore, NCC exercised sovereign power
of the government which made Laurel a public officer. Hence, under
the coverage of the Ombudsman.
Characteristics of PUBLIC Office (Laurel vs. Desierto, April 12,
2002)
• Delegation of sovereign functions
• Creation by law and not of contract
• An oath
• Salary/compensation (but including honorary)
• Continuance of the position
• Scope of duties
13
• Designation of the position as an office
Note: Characteristics need not be present for it to be called a public
office.
Importance of the term “public officer”
The Office of the OMB exercises jurisdiction over public
officials/employees of GOCCs with original charters.
It can only investigate and prosecute acts of the official/employees of
government corporations. Although the government later on acquired
the controlling interest in PAL, the fact remains that the latter did not
have an “original charter”. (Khan vs. ombudsman, 2006; see also
Carandang vs. Ombudsman, 2011)
Public office, not a Property!
• Public Office is personal to the incumbent is not a property
which passes to the heirs. (De la Victoria vs. Comelec, 199
SCRA 561 [1991]).
• The heirs may no longer prosecute the deceased
protestee’s counter-claim for damages against the
protestant for that was extinguished when death terminated
his right to occupy the contested office. (Abeja vs. Judge
Tanada [1994])
Public Office, not a Property; Exception
• A public office is not property within the sense of the
constitutional guaranties of due process of law, but is a
public trust or agency (Libanan vs. Sandiganbayan [1994])
• HOWEVER, an incumbent’s right to office may be
consdiered “property within the protection of due process in
controversies relating to the question as to who of two (2)
persons is entitled thereto. (The General Manager, PPA vs.
Monserate [2002])
De Jure officer
• A De Jure Officer is one who is inall respects legally
appointed or elected and qualified to exercise the office.
The election or appointment complied with all the
requirements of law.
De Facto officer
• There can be de facto officer even without a de facto officer
– for purposes of compensation/salary.
Problem: X and Y were candidates for Mayor in the Municipality of Z.
X wona nd was du.ly proclaimed. However, the Comelec disqualified
X later. On June 20, 2013, A, X’s wife assumed the office fo the Mayor
purportedly as X’s substitute. On June 30, 2014, A was ordered
removed from office. She then voluntarily stepped down. Is A entitled
to salary for the period June 20, 2013 – June 30, 2014?
De Facto Officer’s Entitlement to Salary
GR: Entitled to salary for the services rendered
Does not apply where:
• There is a de jure officer
• USURPER
De Facto Officer vs. Usurper
• A de facto officer has color of right or title to the officer or
has apparent authority to hold the office and has done so in
good faith WHILE a usurper has neither lawful title nor color
of the right or tittle of the office; the act of a de factor iffier is
valid as if it was done by a de jure officer but that a usurper
is absolutely null and void the former may be removed
through a direct proceeding only.
• Even if there’s bad faith, you can comply if you have one or
two of the qualifications.
Salary of De Facto Officer
 POLITICAL LAW REVIEW JD CLASS 2016-2017
• A de facto officer cannot be made to reimburse funds
disbursed during his term of office because his acts are as
valid as those of a de jure officer.
• Moreover, as a de facto officer, he is entitled to emoluments
for actual services rendered.
PROBLEM
X and Y were candidates for Mayor in the Municipality of Z. X won and
was duly proclaimed. An election protest was immediately filed by Y.
On June 30, 2013, X assumed office. On June 30, 2014, the election
contest filed by Y was resolved in Y’s favor. The decision already
became final and executory. X voluntarily stepped down as ordered. Is
X entitled to the salary he received? Should X reimburse Y of the
salary he received?
But the incumbent can recover!
• An incumbent of a public office may recover from a de
facto officer the salary received by the latter during the
time of his wrongful tenure, even though he (the de facto
officer) occupied the office in good faith and under color of
title. And not from the government.
• A de facto officer, not hacking a good title, takes the
salaries at his risk and must, therefore, account tot eh de
jure officer for whatever salary he received during the period
of his wrongful tenure.
• The Supreme Court has allowed a de facto officer to receive
emoluments for actual services rendered but only when
there is no de jure officer.
Examples of de facto offices without de jure:
• An office created by law where the law was thereafter
declared unconstitutional. Operative fact applies; BUT of
course, emoluments are due because of the service actually
rendered by the de facto officer.
Who can recover and from whom?
• As a rule, the de jure officer cannot recover from the
government, but only from the de facto officer, the salary it
had paid to the latter. But, he can recover the salary from
the government or the de facto officer, fi the government
continues to pay the de facto officer even after notice of
adjudication of the title to the de jure officer, the amount so
paid after the adjudication and notice. (Mechem)
• BAD FAITH on government whereby it still pays the de facto
officer even with knowledge of the former that the latter is
de facto – de jure may ask salary directly from government.
• Will the appointed employee whose employment was
disapproved by the Civil Service Commission 6 months
thereafter still recover salary? Entitled to Salary. Who should
be liable?
Salary of officer whose appointment is alter disapproved by the
CSC:
• If the basis for disapproval is NOT violation of civil service
law, say lacking in qualification, the appointee is entitled to
salary.
• HOWEVER, if the disapproval by the CSC is on the ground
that the appointment was made in violation of civil service
law, the appointing authority shall be personally held liable
for the salary of the appointee. (Nazareno vs. City of
Dumaguete, June 2009)
Note: Under Civil Service, Midnight appointment is permitted BUT not
in bulk. In Nazareno, there were 60-80 employees appointed within
the 2 months before the election day until the end of term.
Who may prescribe qualifications:
1. Constitution
2. Congress
a. LIMITATIONS
i. Congress cannot impose conditions of
eligibility inconsistent with the
constitutional provisions;
14
ii.
Qualifications must be germane to the
position (reasonable relation rule) –
reasonableness of the law is always a
requirement for a valid law
iii. Cannot prescribe qualifications so
detailed as to amount to making an
appointment in usurpation of executive
power;
iv. Cannot prescribe qualifications in
addition to those prescribed exclusively
by the constitution
3. Delegate of Congress
SJS vs. PDEA (2008)
The Congress cannot validly amend or otherwise modify the
qualification standards for Senators, as it cannot disregard, evade or
weaken the force of a constitutional mandate, or alter ego or enlarge
the Constitution.
Accordingly Sec 36 (g) of RA 9165 (MANDATORY DRUG TEST) should
be, as it is hereby declared as, unconstitutional.
Should this be intended to House of Rep considering that the
qualifications of congressmen are also prescribed by the constitution?
Frivaldo Doctrine (When should the qualification be met? Depends on
the law creating the position)
Unlike Residence and age qualifications, the qualification of
“citizenship” for local elective officials under the LGC of 1991 must
only be possessed at the time candidate becomes “elective official”
by his valid proclamation and at the start of his term. (Frivaldo vs
Comelec [1996])
IOW, no fixed rule as to when the individual should possess the
qualifications for the public position.
Is property qualification valid?
Macquera vs. Borra (1965): Property qualification is inconsistent with
the essence and nature of a republican system ordained in the
Constitution and the principles of social justice underlying the same.
This implies necessarily that the right to vote and to be voted for shall
not be dependent upon wealth of the individual concerned. Social
justice presupposes equal opportunity for all.
*Maybe it’s the extent that is being considered here. But maybe if it’s
in a form of fee, then it couldn’t have been a property qualification like
in US.
May a person be compelled to accept an office?
GR: NO (Right against involuntary servitude). But an elected official
who refuses without valid motive to be sworn shall be held criminally
liable under Sec. 234 of the RPC.
Exception:
• Compulsory military and civil service under Sec 4, Art II of
the 1987 Constitution and pursuant to National Defense Act.
PARDON; Effects:
First you look at the terms of the pardon: absolute or conditional.
Pardon - On the right to hold public office:
RPC: Art 36. Pardon, it’s effect - A pardon shall not work the
restoration of the right to hold office, or the right of suffrage, unless
such rights be expressly restored by the terms of the pardon.
In Monsanto vs. Factoran
• The pardon granted to petitioner had resulted in removing
her disqualification from holding public employment but it
cannot go beyond that
• To regain her former post as assistant city treasurer, she
must reapply and undergo the usual procedure required for
a new appointment.
 POLITICAL LAW REVIEW JD CLASS 2016-2017
• Is she entitled to back pay?
o Answer: Know the nature of pardon. Pardon looks
forward and backward. Hence, you cannot
demand back pay because it’s like giving pardon
a retrospective effect.
Pardon- On benefits attached to the Office:
• A pardon looks to the future. It is not retrospective. It
affords no relief for what has been suffered by the offender.
It does not impose upon the government any obligation to
make reparation for what has been suffered. This would
explain why petitioner, though pardoned, cannot be
entitled to receive backpay for lost earnings and
benefits. (Monsanto vs. Factoran [1989])
APPOINTMENT
• Essentially executive; cf: “residual power” of the President
• Generally be in writing
• Different from “designation” (although some appointments
would use the term “designate”, what controls is the nature)
• Requires:
1. Appointing authority is vested with that
power
2. The appointee possesses all the
qualifications (including civil service eligibility
and none of the disqualifications)
3. Position is vacant
4. Appointment is approved by CSC
5. Appointee accepts the position by taking the
oath and discharges the functions.
PROBLEM:
Mayor X appointed A as an Administrative Officer II of Cebu City. The
appointment states that it was “permanent.” B questioned the
appointment on the ground that he is next in rank being the
incumbent Admin Officer I while A came from another department or
office of the City hall. The CSC approved the appointment of A but
with a notation that it was “Approved as Temporary”. CSC justified its
action on the ground that B was better qualified than A.
A. Was the act of CSC proper?
1. NO. there are 2 important principles:
o Actual and proper of CSC in relation that the
appointing authority has discretion
o First, prerogative of appointing authority and 2nd,
role of CSC is only to attest
B. How do you distinguish the function of CSC from the Commission
on Appointments? It’s only a preference.
Appointing Authority’s Discretion
• The appointing authority is given ample discretion in the
selection and appointment of qualified persons to
vacant position, provided that the exercise thereof is in
good faith for the advancement of the employer’s interest
and NOT for the purpose of defeating or circumventing the
rights of the employees under special laws or under valid
agreements and provided further that such prerogatives are
not exercised in a malicious, harsh, oppressive, vindictive or
wanton manner, or out of malice or spite. (Lopez vs. CSC
[1991]; Lapinid vs. CSC [1991])
Role of CSC in Appointment “Attestation only”
• Role to attest only as to won the one appointed has
qualified under the law.
• Civil Service Commission has no power of appoitnment
except over its own personnel. Neither does it have the
authority to review the appointments made by other offices
except only to ascertain if the appointee possesses the
required qualifications. The determination of who among
aspirants with the minimum statutory qualifications should
15
be preferred belongs to the appointing authority and not the
Civil Service Commission. It cannot disallow an
appoitnment because it believes another person is better
qualified and much less can it direct the appointment of its
own choice. (See Luego vs. CSC [1986]; Province of
Camarines vs. CA [1995])
Next-in-Rank Rule
Distinguish the following:
Appointment from designation
GR: Appointment and designation are separate and distinct (This is
important in terms of salary and won it confers security of tenure)
• Appointment – selection, by the authority vested with
power, of an individual who is to perform the functions of a
given office
• Designation – on the other hand, connotes merely the
imposition of additional duties, usually by law, upon a
person already in the public service by virtue of an earlier
appointment (or election).
o No security of tenure (holding of office is merely
temporary (See Sevilla vs. CA & Santos [1992])
o No additional benefits (compensation)
o Exception: When the appointment is used in its
general sense where appointment includes
designation
§ Santiago vs. COA – A retiree wanted to
base his retirement benefits on a
designated position because the salary
is higher. SC held that the law sets the
highest basic salary rate as basis for
computation did not intend to
distinguish between appointment and
designation because it includes the
highest salary rate compensation for
substitutionary services or in an acting
capacity.
Permanent from temporary
• Permanent - The appointee meets all the qualifications and
requirements including the appropriate eligibility
requirement (civil service eligibility requirement); it lasts until
lawfully terminated.
o See Pangilinan vs. Maglaya [1993] – If you lack
one of the qualifications then it is still temporary
• Temporary – The appointee meets all the requirements for
the position except the appropriate civil service eligibility. It
shall not exceed 12 months and employment ends ipso fact
with or without qualified replacement.
Is Midnight Appointment prohibited in Local Appointments?
• Items no. 3 (d) and 4 of CSC Resolution No. 010988 dated 4
June 2001, prohibits the outgoing chief executive from
making mass appointments after elections. The term
“mass appointments” refers to those issued in bulk or in
large number after the elections by an outgoing local chief
executive and there is no apparent need for their issuance.
(Nazareno vs. City of Dumaguete, June 2009)
Career vs. Non Career Service (see Book V, Title I, Subtitle A, Ch.
2)
• Career – characteristics:
1. Merit and fitness test (competitive exam) OR
highly technical qualification
2. Security of tenure; AND
3. Opportunity for advancement to higher career
position
• Non-Career- characteristics:
1. Not based on competitive exam nor highly
technical qualification
2. Tenure is limited by law or co-terminus with
appointing authority
 POLITICAL LAW REVIEW JD CLASS 2016-2017
Caveat –
• “No officer or employee of the civil service shall be removed
or suspended, except for cause provided by law” (Sec. 2 (3),
Art IX – B,1987 Constitution)
• Jocom vs. Regalado (GR no. 77373, August 22, 1991) –
“Regardless of the classification of the position held by a
government employee covered by civil service rules, be it
career or non-career position, such employee may not be
removed without cause…and observance of due process.”
Competitive Examination
There are 3 levels of a position: CES is a 3rd level position; There are
no requirements in the 1st level that is why they don’t enjoy security of
tenure.
Career Executive Service (CES)
• Third level positions such as: Undersecretary, Asst.
Secretary, Bureau Director, Asst. Bureau Director, Chief of
Dept. Service and other officers of equivalent rank as
identified by the Career Executive Service Board (CESB), all
of whom are appointed by the President.
• No security of tenure, may be removed anytime UNLESS
they have been issued CESO rank by the President.
HOLD-OVER PRINCIPLE
• GR: A public officer whose term of office has expired or
whose services have been terminated IS ALLOWED to
continue holding office until his successor is appointed or
chosen and has qualified.
• Rationale: public interest; prevent hiatus in public service
• Rules:
o When law provides for it: incumbent will hold
over even if beyond the term fixed by law until
successor is chosen/appointed
o When law is silent: unless expressly or impliedly
prohibited, incumbent may hold over
• Exception:
o Law expressly prohibits hold-over capacity (like
temporary appointments)
o The law implies a prohibition on holdover
DOCTRINE OF OFFICIAL IMMUNITY
This is different from the President’s immunity since the latter is
absolute.
• It is the duty of the COurt to see to it that public officers are
not hampered in the performance of their duties or in
making decisions for fear of personal liability for damages
due to honest mistake. Whatever damage they may have
caused as a result of such an erroneous interpretation, if
any at all, is in the nature of a damnun absque injuria.
Mistakes concededly committed by public officers are not
actionable absent any clear showing that they were
motivated by malice or gross negligence amounting to
bad faith. After all, ‘even under the law of public officers,
the acts of the petitioners are protected by the presumption
of good faith.” (Farolan vs. Solmac Marketing Corp, GR no.
83589, March 13 1911)
CIVIL LIABILITY (Damages)
• When performing official functions – public officers are liable
ONLY in case of malice, bad faith, gross negligence
• NOT liable for “wrong interpretation of law”;
• Heads are liable for acts of subordinates ONLY WHEN he
has “authorized by written order the act complained of”
• BUT: Sec. 24 of LGC of 1991 provides: Liability for
Damages – Local government units and ther officials are
NOT exempt from liability for death or injury to persons or
damage to property.
THREE-FOLD LIABILITY RULE
16
Basic in the law of public officers is the three-fold liability rule, which
states that the wrongful acts or omissions of a public officer may give
rise to civil, criminal and administrative liability. An action for each can
proceed independently of the others because they spring from
different causes of action. (Domingo vs. Rayala, GR no. 155831,
155840, 158700, February 18, 2000)
Rule: The outcome of one case is not determinative of the other –
acquittal of the criminal case does not mean that he should be
exonerated in the admin case because they require different quantum
of evidence required.
Q: What principle negates the law on superior responsibility?
Liability for Acts of Subordinates:
GR: A superior should not be immediately be swept into a conspiracy
conviction simply because he did not examine every detail of the
subordinate.
Arias Doctrine (1989):
We would be setting a bad precedent if a head of office plagued by all
too common problems-dishonest or negligent subordinates,
overwork, multiple assignments or poritions, or plain incompetence is
suddenly swept into a conspiracy conviction simply because he did
not personally examine every single detail, painstakingly trace every
step from inception, and investigate the motives of every person
involved in a transaction before affixing , his signature as the final
approving authority.
Exception:
• Alfonso Doctrine (2007)
• CESA vs. Ombudsman (2008)
o A public officials’ foreknowledge of facts and
circumstances that suggested an irregularity
constitutes an added reason to exercise a greater
degree of circumspection before signing and
issuing public documents. By failing to prevent
the irregularity that a superior had reason to
suspect all along or to take immediate steps to
rectify, the superior will be held liable.
Bacasmas vs. Sandiganbayan (July 10, 2013)
Petitioners cannot hide behind our declaration in Arias vs.
Sandiganbayan that heads of offices cannot be convicted od a
conspiracy charge just because they did not personally examine every
single details before they as the final approving authorities, affixed
their signatures to certain documents. The Court explained in that
case that conspiracy was not adequately proven, contrary to the cast
at bar in which petitioners’ unity of purpose and unity in the execution
of an unlawful objective were sufficiently established.
So, Arias doctrine also has its limitation. The unity in the execution of
an unlawful objective was sufficiently established here unlike Arias
where there were no reasons for the superior authority to check further
before signing it.
Also, unlike in Aras, where there is no reasons for the heads of offices
to further examine each voucher in detail, petitioners herein, by virtue
of the duty given to them by law as well as by rules and regulations,
had the responsibility to examine each Boucher to ascertain whether it
was proper to sign it in order to approve and disburse the cash
advance.
LIABILITY FOR ACTS COMMITTED OUTSIDE OF DUTY
DISCIPLINE: DISHONEST COMMITTED OUTSIDE OF DUTY
• Dishonesty, in order to warrant dismissal, need not be
committed in the course of the performance of duty by the
person charged
• The private life of an employee cannot be segregated from
his public lide. Dishonestly inevitably reflects his fitness to
continue to hold office…. (Remolona vs. Civil Service
Commission, GR no. 137473)
 POLITICAL LAW REVIEW JD CLASS 2016-2017

Authority to Investigate Acts of Public Officers

There is nothing in the OMB law and consti which grants exclusive
jurisdiction on the OMB on the investigation of offices.

• The constitution, Sec 15 of the Ombudsman Act of 1989

and Section 4 of the Sandiganbayan Law, as amended, do
not give to the Ombudsman exclusive jurisdiction to
investigate offenses committed by public officers or
employees. The authorty of the Ombudsman to investigate
offenses involving public officers or employees is
concurrent with other government investigating agencies
such as provincial, city and state prosecutors. HOWEVER,
the Ombudsman, in the exercise of its primary jurisdiction
over cases cognizable by the Sandiganbayan, may take
over, at any stage, from any investigating agency of the
government, the investigation of such cases. (Alfredo
Romulo A. Busuego vs. Office of the Ombudsman
(Mindandao) and Rosa S. Busuego, GR no. 196842)

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 POLITICAL LAW REVIEW JD CLASS 2016-2017

ELECTION LAW Distinguishing powers of the comelec is important to know the

Since barangay officials are not to
PROBLEM run under any political banner, the
substitution was considered illegal
In the barangay elections of 2002, R and P were the contending
candidates for Barangay Chairman. Before elections were held,
however, R dies and R’s wife sought to run as candidate in lieu of R.
R’s wife won the election, but the Board of Canvassers proclaimed P
as the winner saying that Sec 77 of the Omnibus Elections Code,
substitution of candidates is not allowed inasmuch as the barangay
election is non-partisan and there can be no substitution because
there is no political party from which to designate the substitute.
Answer: Substitution is allowed only in cases where there is partisan
election (via political parties). But in barangay elections which is not
partisan, in theory, it is not allowed.
remedies. Example: In administrative cases, it’s alright for Comelec En
Banc to issue a resolution right away. But in quasi-judicial or judicial
acts, has to be decided in division first.
Problem:
A Barangay was abolished and merged in a Municipality. Comelec
then issued Resolution No. 2987 for the holding of the plebiscite
required by the LGC of 1991. A petition seeking for the annulment of
Resolution 1987 was filed before the Regional Trial Court. The RTC,
however, dismissed the case on the ground of lack of jurisdiction.
Was the RTC correct?
Note: Such powers of the Comelec are limited in the sense that those
are not expressly given cannot be exercised.

Will of the Electorate Rule
• Mandatory provisions requiring certain steps before
elections will be construed as directory after the elections,
to give effect to the will of the electorate.
• Technicalities and procedural niceties in election cases
plebiscites, thus, the said resolution may not be deemed as
should not be made to stand in the ay of the true will of the
a “final order” reviewable by certiorari by this Court. Any
electorate. Laws governing election contests must be
question pertaining to the validity of said resolution may be
liberally construed to the end that the will of the people in
well taken in an ordinary civil action before the trail courts.
the choice of public officials may not be defeated by mere
(salva vs. Makalintal GR no. 132603)
technical objections. (Rulloda vs. COMELEC, G.R. No. 154198)
• If COC has already been given due course, remedies are:
petition to cancel COC -> Petition for disqualification ->
Election protest -> Quo Warranto; however, scenario
different if there is already an elected official.
• Defects in the certificates of candidacy should have been
questioned on or before the election and not after the will of
the people has been expressed through the ballots. It was
further held in the said case that while provisions relating
to certificates of candidacy are mandatory in terms, it is
an established rule of interpretation as regards election
law, that mandatory provisions requiring certain steps
before elections will be construed as directory after the
elections, to give effect to the will of the electorate. (Saya-
Ang, Sr. vs. COMELEC, GR no. 155087 2003)
Powers of the Comelec
1. Executive or enforcement power RTC
o Designation of polling places
o Deputization of law enforcement agencies for the
conduct of free, honest elections
• Comelec Resolution no. 2987 which provides for the rules
and regulations governing the conduct of the required
plebiscite, was not issued pursuant to the COMELEC’s
quasi-judicial functions but merely as an incident to its
inherent administrative functions over the conduct of
• There is no constitutional and statutory basis for the
respondent COMELEC to undertake a separate and an
“unofficial” tabulation of the results of the election, the
COMELEC descends to the level of a private organization,
spending public funds for the purpose. (Brillantes, Jr vs.
Comelec GR no 163193, June 15 2004)
The Comelec can postpone the holding of a plebiscite (and
election) to another date
• The Comelec has “exclusive charge of the enforcement and
administration of all laws relative tot eh conduct of elections
for the purpose of ensuring free, orderly and honest
elections.” The text and intent of Section 2 (1) of Article IX
(C) is to give COMELEC “all the necessary and incidental
powers for it to achieve the objective of holding free,
orderly, honest, peaceful and credible elections.” (Cagas vs.
COMELEC GR no 209185, October 25 2013)
JURISDICTION OF THE COMELEC
Note: For PET, it’s the supreme court en banc.

Election Contests:
2. Quasi-legislative power Rule 64 Certiorari Supreme Court ?
3. Quasi-judicial power
• Original : Regional, Provincial, City Official
4. Judicial Power
• Appellate: Mun. (RTC); Brgy (MTC); Note: Decision is final
The administrative powers of the COMELEC include the power to and executory, hence, remedy is Certiorari (Rule 64; 30
determine the number and location of polling places, appoint election days)
officials and inspectors, conduct registration of voters, deputize law
Pre-Proc, becoming election contest after election
enforcement agencies and government instrumentalities to ensure
free, orderly, honest, peaceful, and credible elections, register political
• In a choice of alternatives, what should guide the
parties, organization or coalitions, accredit citizen’s arms of the
Commission on Election in its final disposition of a pre-
Commission, prosecute election offenses and recommend to the
proclamation controversy after the lapse of a considerable
President the removal of or imposition of any disciplinary action upon
period is to accord respect to a proclamation made after a
any officer or employee it has deputized for violation or disregard of its
due deliberation but without prejudice to a protest or quo
directive, order or decision. In addition, the Commission also has
warranto action to be filed, if the losing party chooses to
direct control and supervision over all personnel involved in the
pursue such remedy. (Faderanga vs. COMELEC; Aguinaldo
conduct of election. (Sandoval vs. Comelec [2000])
vs. COMELEC [1981)
However, the resolution of the adverse claims of private respondent
Is the proclamation the determining factor whether the Comelec
and petitioner as regards the existence of a manifest error in the
should continue exercising it’s jurisdiction?
questioned certificate of canvass requires the COMELEC to act as an
arbiter. It behooves the Commission to her both parties to determine
Depends. IN the problem at bar, the comelec is not yet divested of its
the veracity of their allegations and to decide whether the alleged
jurisdiction because MR was timely filed because it did not reach the
error is a manifest error. Hence, the resolution of this issue calls for
finality of such decision.
the exercise by the COMELEC of its quasi-judicial power. (Sandoval
vs. Comelec, supra)
Indeed the General rule is that mere allegation of invalidity of the
proclamation does not divest the electoral tribunal of its jurisdiction.
Rule 64 – certiorari from Comelec to CA (30 days for constitutional
The rule is, once a winning candidate has been proclaimed, taken his
commissions); same nature with Rule 65 on GAD
oath and assumed the office as member of the House of Rep

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BUT in Codilla, there’s a different pronouncement. Once a winning Note: misrepresentation becomes material if it involves eligibility.
candidate is proclaimed, it presupposes that the proclamation was
valid. Think of a situation where under Sec 12, 68 or 40 of the LGC – yet, we
don’t apply the rejection of the second placer rule (where the
• IN DIVISION FIRST, BEFORE EN BANC RULE supposed 2nd placer will be proclaimed and be valid.)? * this is the
• Applicable only when COMELEC is asked to exercise caveat given to us by Labo doctrine
adjudicatory function(QJ). Hence, when exercising purely
admin function, need not be in division. *Technically, dili 2nd placer sa Talaga since substitution presupposes a
• E.G. “correction of manifest errors” is purely admin valid COC. But since the substitution was not valid, the one who had
(includes mere mathematical calculation), hence, en banc higher votes was invalid because s/he was not a candidate in the first
may decide. But not in SANDOVAL CASE (where the issue place. No vote for the first placer.
was not the correction of manifest error) where the Supreme
Court said it requires adjudicative function, hence, must be PROBLEM
decided in division by the COMELEC.
• Comelec does not exercise “supervision” over SK X, Y and Z ran for Member for the House of Representatives in the 3rd
elections. It is with DILG. Comelec only gives technical district of Cebu. X, obtained the highest number of votes, followed by
assistance to DILG in the conduct of SK elections. (Alunan X and then X. However, months before election day, a pending
case) Petition was filed by Y against X alleging that X is not a natural-born
• Comelec can issue writs of Certiorari, Prohibition and Filipino contrary to his declaration in his COC and therefore
disqualified run for Congress. A final decision has been reached
Mandamus but only in the exercise of its exclusive
disqualifying X before proclamation day.
appellate jurisdiction. This power is concurrent with the
SC, so, the tribunal that takes jurisdiction first shall exercise
Questions:
exclusive jurisdiction over the case. But, note now of SC’s
mandate to observer ”hierarchy of courts”. (Relampagos
1. May Y validly request the Comelec to declare him a winner?
case)
Why or why not?
2. Assuming that S sought for the substitution of X before
Problem
election day, should the votes in favor on election day be
validly counted? Why or why not?
X and Y were candidates for Congressman of the first District of Cebu
City during the May 2013 elections. A petition for disqualification was
Answer: like in Talaga Case. This is DQ on the basis of material
filed by X against Y alleging that Y violated the Omnibus Election
misrepresentation because of problems with eligibility. Since he was
Code for using public funds for his campaign materials. The eptition
proven that he is not a natural born Filipino, hence, he was declared
was not acted upon by the COMELEC before the election and Y was
not having filed valid COC.
boted for and obtained the highest number of votes.
When a candidate is disqualified, died or withdrawn (68, 12, of the
After the election and before proclamation of YY, the second division
Omnibus Election Code) – appropriate for substitution
of the COMELEC ordered the suspension of Y’s proclamation and
thereafter granted the petition for disqualification. Thereafter, the
“Section 68” vs. “Section 78” Petitions
COMELEC ordered the proclamation of X, who garnered the 2nd
highest number of votes, and who immediately took his oath. Y had
• A Petition for Disqualification, on the one hand, can be
timely filed a motion for reconsideration which was not immediately
premised on Sec. 12 or 68 of OEC or Sec 40 of the LGC.
acted upon until July 1, 2013. Was the COMELEC already divested of
But, a petition to deny due course or to cancel a COC
its jurisdiction? NO. July 1, 2013 implication is that the term of X
already started. can only be grounded on a statement of a material
representation in the said COC that is false. The petitions
COMELEC & HRET/SET
have different effects. While a person who is disqualified
under Sec 68 is merely prohibited to continue as a
Limkaichong vs. Comelec (2009):
(1) proclamation (2) oath (3) beginning of term <—— requisites for electoral tribunals candidate, the person whose certificate is cancelled or
denied due course under Sec 78 is not treated as a
• Once a winning candidate has been proclaimed, taken
candidate at all, as if he/she never field a COC. (Fermin vs.
his oath, and assumed office as a Member of the House
Comelec [2008], cited in Talaga vs. Comelec [2012])
of Rep, the jurisdiction of the HRET begins over election
contests relating to his election, returns and
Substitution presupposes the existence of a ‘candidate’
qualifications, and mere allegation as to the invalidity of
her proclamation does not divest the Electoral Tribunal
• A candidate who is disqualified under Section 68 can be
of its jurisdiction.
validly substituted pursuant to Section 77 because he
remains a candidate until disqualified but a person whose
Limkaichong (2009) vs. Codilla (2002)
COC has been denied due course to and/or cancelled under
Section 78 cannot be substituted because he is not
• In Limkaichong, the SC did not find the proclamation void
considered a candidate. Stated differently, since there
as the order disqualifying the winning candidate was not yet
would ne no candidate to speak of under a denial of due
final and the proclamation was legally and procedurally
course to and/or cancellation of a COC case, then there
called for. In Codilla, procedural lapses that resulted to
would be no candidate to be substituted. (Tagolino vs.
denial of due process rendered the proclamation of the
HRET, GR no. 202202, March 19, 2013)
winning candidate void. That a “Second Placer” was
proclaimed winner also made the proclamation void. Thus
PROBLEM
the Comelec retained jurisdiction despite the proclamation
in Codilla. During the May 2013 elections, massive terrorism and violence marred
the elections in a remote municipality in southern part of Cebu
Scope of the Doctrine on Rejection of Second Placer
Province. As a result, only about 2% of the total registered voters in
the said municipality were able to vote. X was proclaimed the winner
In Labo there was no final judgment of disqualification before the
having obtained the highest number of votes. Claiming that X and his
elections. The doctrine on the rejection of the second placer was
goons were the ones responsible for the terrorism and violence that
applied in Labo and a host of other cases because the judgment
marred the elections, Y, the losing candidate, filed before the
declaring the candidates’ disqualification in Labo and the other cases
COMELEC, a petition to declare failure of elections in 58 precincts in
had not become final before elections. To repeat, Labo and the other
the said municipality. Will the petition prosper? Why or why not?
cases applying the doctrine on the rejection of the second placer No because there was voting
have one common essential condition – the disqualification of the FAILURE of elections
candidate had not become final before the elections. (Talaga vs.
COEMLEC [2012])
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 POLITICAL LAW REVIEW JD CLASS 2016-2017
Before the COMELEC can act for the declaration of a failure of
election, 2 conditions must concur: (1) that no voting has taken place
on the date fixed by law or even if there was, thee lection results in a
failure to elect, AND (2) the votes not cast would affect the result of
the election (Soliva vs. COMELEC, GR no 141723 2001)
Note: There was voting but it was not counted (because of some
circumstances); hence, failure to ascertain the will of the electorate
Party-List system Questions: (see RA 7941)
1. May a group that does not represent a marginalized sector
participate in the Party-List elections? (Atong Paglaum Inc.
vs. Comelec)
Who may be a Party-list Group:
The party-list system is composed of three different groups:
1. National parties or organizations;
2. Regional parties or organizations
3. Sectoral parties or organizations.
National and regional parties or organizations are different from
sectorial parties to organizations. National and regional parties or
organizations need not be organized along sectoral lines and need not
represent any particular sector. (Atong Paglaum, Inc vs. Comelec
[April 2013])
2. LGBT, a group of lesbians, gays, bisexuals and transexuals
wanted to join the party-list system. Is the group legally
allowed to join the party-list system? (Ang Ladlad Party vs.
Comelec)
The enumeration of marginalized and under-represented sectors is
NOT exclusive. The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RRA 7941.
(Ang Ladlad LGBT Party vs. COMELEC, GR no 190582, Apr 08, 2010)
3. Is a party-list group failed to obtain at least 2% votes in the
last 2 preceding elections, is it still qualified to participate in
the next party-list election? ( see Section 6 of RA 7949);
while textually it’s a ground for DQs of party-list groups,
remember what happened in Banat vs. Comelec case. In
Banat, it allowed giving of seats to party lists who did not
qualify the 2% seat. Because of such ruling in computing the
additional seats – in Phil. Guardians vs. Comelec, Sec 6
should now be understood in light of Banat ruling – not
failure to get 2% BUT failure to get a seat. This means those
getting less than 2% may or may not get a seat.
Section 6 (8) of RA 7941 provides for two separate grounds for
delisting; these grounds cannot be mixed or combined to support
delisting; and (b) the disqualification for failure to garner 2% party-list
votes in two preceding elections should now be understood, in light of
the Banat ruling, to mean failure to qualify for a party-list seat in two
preceding elections for the constituency in which it has registered.
(Philippine Guardians Brotherhood, Inc vs. COMELEC, GR no 190529,
April 29, 2010)
4. X is a lawyer and has as his client the urban poor and
laborers. “Ang Trabahador” is a party-list group registered
as such with the Commission on Elections representing the
Labor Sector. Can X be a nominee of “Ang Trabahador” and
become its representative? Assumption here is that lawyer
is not laborer and not part of the urban poor. Can one who
does not belong to the sector be a valid nominee of the
partylist group that supposedly represents the sector? YES.
Track record.
The party-list organization or party must factually and truly represent
the marginalized and underrepresented constituencies mentioned in
Section 5. Concurrently, the persons nominated by the party-list
candidate-organization must be “Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and
20
parties.” (Ang Bagong Bayani-OFW, GR no. 147589, 147613, June 26,
2001)
The phrase ‘marginalized and underrepresented’ should refer only
to the sectors in Section 5 that are, by their nature, economically
‘marginalized and underrepresented’. These sectors: labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, handicapped,
veterans, overseas workers, and other similar sectors. For these
sectors, a majority of the members of the sectoral party must
belong to the “marginalized and underrepresented”. The
nominees of the sectoral party either must belong to the sector,
or must have a track record of advocacy for the sector
represented. Belonging to the “marginalized and underrepresented”
sector does not mean one must “wallow in poverty, destitution or
infirmity”. (Atong Paglaum Inc vs. Comelec [2013])
QUESTION 5:
What’s the “gauge for track record of advocacy”?
QUESTION 6: QUESTION 7:
Power to investigate and prosecute election offenses
• The Constitution has not made this power “exclusive” to the
Comelec
• HENCE, the COMELEC, by law, exercise concurrent
jurisdiction with other prosecutory arms of the government
in the investigation and prosecution of election offenses as
provided for in RA 9369 (See: Banat vs. Comelec, August
2009)
Comelec and DOJ in prosecution of election offenses:
The grant of exclusive power to investigate and prosecute cases of
election offenses o the Comelec was not by virtue of the Constitution
but by the Omnibus Election Code which was eventually amended by
Sec 43 of RA 9369. Thus, the DOJ now conducts preliminary
investigation of election offenses concurrently with the Comelec
and no longer as mere deputies. (Arroyo vs. DOJ [2012])
Registration of Voters (RA 8189)
Salient Features of RA 8189:
• Every barangay shall have at least one (1) precinct. Each
precinct, shall have no more than two hundred (200) voters
and shall comprise contiguous and compact territories.
(Under RA 9369, these precincts are now “clustered”)
• Who may register?
• All citizens of the Philippines not otherwise disqualified by
law who are at least eighteen (18) years od age and who
shall have resided in the Philippines for at least one (1) year
and in the place wherein they propose to vote for at least six
(6) months immediately preceding the election.
The following shall be disqualified from registering:
a) Sentenced by final judgment to suffer imprisonment of not
less than one (1) year, such disability not having been
removed by plenary pardon or amnesty; Provided, however,
That any person disqualified to vote under this paragraph
shall automatically reacquire the right to vote upon
expiration of 5 years after service of sentence.
b) Has been ajudged by final judgment…of having committed
any crime involving disloyalty o the duty constituted
government such as a rebellion sedition, violation of the
firearms laws or any crime against national security, unless
restored to his full civil and political rights in accordance
with law: Provided, that shall automatically reacquire the
right to vote upon expiration of 5 years after service of
sentence; and
c) Insane or incompetent persons declared as such by
competent authority unless subsequently declared gy
proper authority that such person is no longer insane or
incompetent.
Any illiterate person may register with the assistance of the Election
Officer or any member of an accredited citizen’s arms. The election
officer shall place such illiterate person under oath, ask him the
questions, and record the answers given in order to accomplish the
application form in the presence of the majority of the members of the
Board… The application for registration of a physically disabled
 POLITICAL LAW REVIEW JD CLASS 2016-2017
person may be prepared by any relative within the fourth civil degree
of consanguinity or affinity or by the election officer or any member of
an accredited citizen’s arm using the data supplied by the applicant.
Any voter, candidate or representative of a registered political party
may challenge in writing any application for registration, stating the
grounds therefor. The challenge shall be under oath and be attached
to the application, together with the proof of notice of hearing to the
challenger and the applicant.
Jurisdiction in Inclusion and Exclusion Cases - The Municipal and
Metropolitan Trial courts shall have original and exclusive jurisdiction
over all cases of inclusion and exclusion of voters in their respective
cities or municipalities. Decisions of the Municipal or Metropolitan
Trial Courts may be appealed by the aggrieved party to the RTC within
5 days from receipt of notice thereof. Otherwise, said decision shall
become final executory. The regional trial court shall decide the
appeal within 10 days from the time it is received and the decision
shall immediately become final and executory. No motion for
reconsideration shall be entertained.
Effect of Registration and Voting in Residence
• Will registration of a voter in a place or other than his
residence of origin result to abandonment of residence? No,
according to Perez vs. Comelec 317 SCRA 641)
• Will the act of voting by a voter in a place other than his
residence of origin result to abandonment of residence?
(Not necessarily, according to Domingo vs. Comelec 310
SCRA 641 There should be other acts to prove domicile
What about reacquisition of lost citizenship under RA 9225?
• RA 9225 only provides for re-acquisition of “citizenship”,
not residence. Thus, the candidate must still show overt
acts constituting “reacquisition of residency” in the
Philippines (e.g. application of Philippine Passport, paying
of taxes, etc) – Japzon vs. Comelec, Jan 19, 2009
See also: Poe-Llamanares vs. Comelec, G.R. No. 221697, March 8, 2016 on
“residency”
Effect of Filing of Certificate of Candidacy
• Not deemed resigned; only appointive official who filed
certificate of candidacy will be deemed to have resigned.
• Sec 13 of RA 9363: “Any person holding a public appointive
office or position, including active members of the armed
forces, and officers, and employees in government-owned
or controlled corporations, shall be considered ipso facto
resigned from his or her office and must vacate the same at
the start of the day of filing of his/her certification of
candidacy.
Quinto vs. Comelec (2009; 2010)
2009: The Supreme Court ruled that the differential treatment of
persons holding appointive offices as opposed to those holding
elective ones is not germane to the purposes of the law, and this
violated the equal protection clause.
2010: THERE ARE SUBSTANTIAL DISTINCTIONS BETWEEN
ELECTIVE AND APPOINTIVE OFFICIALS.
RA 9369, in relation to Infomercials
• The Commission shall set the deadline for the filing of
certificate of candidacy or petition of registration or
manifestation to participate in the election. Any person who
filed his certificate of candidacy within this period shall only
be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy;
provided that, unlawful acts or omissions applicable to a
candidate shall effect only upon that start of the aforesaid
campaign period
Penera vs. Comelec (Sept 2009)
• A person, after filing his/her COC but prior to his/her
becoming a candidate (thus, prior to the start of the
21
campaign period), can already commit the acts described
under Section 79 (b) of the Omnibus Election Code as
election campaign or partisan political activity.
• However, only after said person officially becomes a
candidate, at the beginning of the campaign period, can
said acts be given effect as premature campaigning under
Section 80 of the Omnibus Election Code. Only after said
person officially becomes a candidate, at the start of the
campaign period, can his/her disqualification be sought for
acts constituting premature campaigning.
• Congress has laid down the law – a candidate is liable for
election offenses only upon the start of the campaign
period. This Court has no power to ignore the clear and
express mandate of the law “any person who filed his
certificate of candidacy within [the filing] period shall only be
considered a candidate at the start of the campaign period
for which he filed his certificate of candidacy.”
• What the law says is “any unlawful act or omission
applicable to a candidate shall take effect upon the start
of the campaign period”. The plain meaning of this
provision is that the effective date when partisan political
acts become unlawful as to a candidate is when the
campaign period starts. Before the start of the campaign
period, the same partisan political acts are lawful.
• Neither can this Court turn a blind eye to the express and
clear language of the law that “any unlawful act or omission
applicable to a candidate shall take effect only upon the
start of the campaign period.”
• The forum for examining the wisdom of the law, and
enacting remedial measures, is not this Court but the
legislature.
SUBSTITUTE CANDIDATE
• If the official candidate dies, withdraws or is disqualified for
any cause, any person belonging to the same party and
certified by said party may replace the candidate.
• What if independent candidate?
o Rulloda vs. Comelec 2003 Jan 20 (En Banc) –
Contrary to respondent’s claim, the absence of a
specific provision governing substitution of
candidates in barangay elections can not be
inferred as a prohibition against said substitution.
Such a restrictive construction cannot be read
into the law where the same is not written. Indeed,
there is more reason to allow the substitution of
candidates where no political parties are involved
than when political considerations or party
affiliations reign, a fact that must have been
subsumed by law.” (Note: Barangay election is
not partisan)
Substitution of Candidate must be done within the time set by law
There are different deadlines set to govern the specific circumstances
that would necessitate the substitution of a candidate due to death,
disqualification or withdrawal. In case of death or disqualification,
the substitution had until midday of the election day to file the
COC. In case of withdrawal, the substitute is usually required to
file the COC much earlier. In the 2010 elections, for example, it was
set on December 14, 2009. (Renato M. Federico vs, Comelec, Jan 22,
2013)
LONE CANDIDATE LAW
Upon the expiration of the deadline for the filing of the certificates of
candidacy in a special election called to fill a vacancy in an
elective position other than for President and Vice President,
when there is only (1) qualififed candidate for such position, the lone
canddiate shall be proclaimed elected to the position by proper
proclaiming body of the Commission on Elections without holding
the special election upon certification by the Commission on
Elections that he is the only candidate for the office and is
thereby deemed elected.
Multiple filing of certificates of candidacy
 POLITICAL LAW REVIEW JD CLASS 2016-2017

If he filed certificate of candidacy for more than one office, he shall not
be eligible for any of them.

• BUT, before expiration of the period for filing of certificate of

candidacy, the person who has filed more than one cert of
candidacy may declare under oath the office for which he
desires to be eligible. Always asked in the BAAAAR

Material Misrepresentation

The material misrepresentation under Secton 78 of the OEC refers to

qualifications for elective office. Aside from the requirement of
materiality, a false representation under Section 78 must consist of a
“deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible.” In other words, it must
be made with an intention to deceive the electorate as to one’s
qualifications for public office. (Salcedo vs. Comelec [1999])

Failure of Elections; 2 conditions

1. No voting has been held (or, held but suspended and did
not resume or resulted in “failure to elect”) in any
precinct or precincts due to fraud, force majeure, violence
or terrorism; and
2. The votes not case therein are sufficient to affect the
results of the election. The cause of such failure may arise
before or after the casting of votes or on the day of the
election.
(ASKED IN THE BAR MANY TIMES!)

“Failure of Elections”; to be strictly construed

• The power to declare a failure of elections should be
exercised with utmost care and only under
circumstances which demonstrate beyond doubt that
the disregard of the law has been so fundamental or so
persistent and continuous that it is impossible to
distinguish what votes are lawful and what are unlawful,
or to arrive at any certain result whatsoever; or that the
great body of voters have been prevented by violence,
intimidation and threats from exercising their franchise.
There is failure of elections only when the will of the
electorate has been muted and cannot be ascertained. If
the will of the people is determinable, the same must as
far as possible be respected.

Effect of the death of the protestant during the pendency of an

election contest:

• Considering that election contest is imbued with public

interest, unlike in an ordinary suit, the death of the
protestant does not extinguish an election contest. The
candidate who is likely to succeed had the protestant been
declared the winner, like a vice-elect, will be the real party in
interest. (Poe vs. GMA)

“Execution pending appeal” allowed in election cases

• It is allowed if there are valid and special reasons to

grant the motion for execution pending appeal, and
provided that the motion for execution is filed within the
period to appeal. Besides, the pendency of an election
contest is not a sufficient basis to enjoin one who has been
proclaimed as duly elected from assuming office as required
of him by law, otherwise the efficiency of public
administration would be impaired.

Best evidence in election contest cases

• Where what is involved is the correctness of the number of

votes of each candidate, the best and most conclusive
evidence are the ballots themselves.
• BUT, where the ballots cannot be produced or are not
available, the election returns would be the best evidence,
as they are used in the canvass of votes.

22
 POLITICAL LAW REVIEW JD CLASS 2016-2017
LOCAL GOVERNMENT LAW
(Municipal Corporation Law)
Kinds of Corporation, in general:
• Private Corporation – is one that is formed for some
private purpose, benefit, aim or end, such as a business
corporation formed and organized under a general law on
corporation. It is created for private objects. (Dillon, supra)
• Public Corporation – is one that is organized for
government of a portion of a state, such as a local
government unit. It is created for public purpose. (Dillon,
supra)
BPA vs. COA (2011)
The BSP still remains an instrumentality of he national government. It
is a public corporation (this is declared in CA no. 111 itself) created
by law for a public purpose, attached to the DECS pursuant to its
Charter and the Administrative Code of 1987. It is not a private
corporation which is required to be owned or controlled by the
government and be economically liable to justify its existence under a
special law.
(See, however, the dissent of Justice Carpio)
Dissent of J. Carpio
• Indeed, the BSP performs functions which may be classified
as public in character, in the sense that it promotes “virtues
of citizenship and patriotism and the general improvement
of the moral spirit and fiber of our youth. However, this fact
alone does not automatically make the BSP a GOCC…
• Authorities are of the view that the purpose of the
corporation cannot be taken as a safe guide, for the fact is
that almost all corporations are nowadays created to
promote the interest, good, or convenience of the public.
• The true criterion, therefore, to determine whether a
corporation is public or private is found in the totality of the
relation of the creation to the State. If the corporation is
created by the State as the latter’s own agency or
instrumentality to help in carrying out its governmental
functions, then that corporation is considered public;
otherwise, it is a private.
• Applying the above test, provinces, chartered cities,
and barangays can best exemplify public corporations.
They are created by the State as its own device and
agency for the accomplishment of parts of its own
public works. (Citing Philippine Society for the prevention
of Cruelty to Animals vs. Commission on Audit [2007])
Kinds of Public Corporation
1. Quasi-Public Corporation – a private corporation that
renders public service or suppliers public wants, such as
utility companies. It combines the elements of both public
and private. Hough organized for private profit, they are
compelled by law or contract to render public service.
(Dillon, supra) E.g. public utility companies
2. Municipal Corporations – body politic and corporate
constituted by the incorporation of the inhabitants for
purposes of local government thereof. Recently referred to
as “local governments”
Local Government
• A local government is defined as a “political subdivision of
a nation or state which is constituted by law and has
substantial control of local affairs” E.g. Province (under
1987 Constitution, local governments are not only called
“political subdivisions”, but “territorial subdivisions” as well)
• What is the underlying reason or justification for the creation
of local governments?
Municipal Corporations
Elements:
1. Legal creation or incorporation
23
2. Corporate name
3. Inhabitants
4. Territory
Dual Nature and Functions of LGU
• Governmental – (also public or political) administering the
powers of the state and promoting the public welfare
• Proprietary (also called private or corporate) exercised for
the special benefit and advantage of the community
Local Government Code of 1991:
Sec 15. Political and Corporate Nature of Local Government Units
Every local government unit created or recognized under this Code is
a body politic and corporate endowed with powers to be exercised by
it in conformity with law. As such, it shall exercise powers as a
political subdivision of the National Government and as a
corporate entity representing the inhabitants of its territory.
• Examples of Governmental functions: exercise of local
police power, taxation, and eminent domain for public
works
• Examples of Proprietary functions – establishment of
slaughter houses and markets, maintenance of parks,
cemeteries, fiesta celebration
1994 BAR EXAMINATION:
Question No. 6
Johnny was employed as a driver by the Municipality of Calumpit,
Bulacan. While driving recklessly a municipal dump truck with it’s a
load of sand for the repair of municipal streets, Johnny hit a jeepney.
The Sangguniang Bayan passed an ordinance appropriating P
300,000.00 as compensation for the heirs of the victim.
1. Is the municipality liable for the negligence of Johnny?
2. Is the municipal ordinance valid?
Kinds of Municipal Corporation:
• De Jure created with all the elements of a municipal
corporation being present
• De Facto where there is colorable compliance with the
requisites of a de jure municipal corporation
BASIS for the Doctrine of De Facto Corporation
• The basis for this doctrine is a very strong public policy
supporting the security of units of local government and
the conduct of their business against attack grounded
upon collateral inquiry into the legality of their organization.
(Cf: Operative Fact Doctrine)
• It also underlies the theory that local units may exist by
prescription. (Fordham)
Municipality of Jimenez vs. Bas, Jr (1996):
• The Municipality of Sinacaban was created through EO 258
in 1949 and since then had been exercising the powers of
an LGU;
• In 1965, Pelaez vs. Auditor General Case invalidated certain
EOs issues by the President creating municipalities because
the power to created LGU is essentially legislative,
excluding WO 258;
• IN 1990, Sinacaban’s existence was questioned.
Municipality of San Narciso vs. Mendez, Sr. (1994)
• Municipality of San Andres was created in 1959 through EO
353
• It became a 5th class municipality in 1965
• In 1965, Pelaez vs. Audtor General case invalidated some
EOs (excluding EO 353) of the President creating some
municipalities; San Andres’ existence was questioned in
1989
 POLITICAL LAW REVIEW JD CLASS 2016-2017
• RULING: San Andres became de jure by subsequent
because it was included in the Ordinance (Appendix) to the
1987 Constitution apportioning the seats of the House of
Representative (as one of the 12 municipalities composing
the 3rd district of Quezon).
Sec 442 (d), LGC:
“Municipalities existing as of the date of the effectivity of this Code
shall continue to exist and operate as such. Existing municipal
districts organized pursuant to presidential issuances or executive
orders and which have their respective set of elective municipal
officials holding office at the time of the effectivity of this Code shall
henceforth be considered as regular municipalities.”
Sultan Osop Camid vs. office of the President (2005)
• Andong (created in 1964) was among the municipalities
declared invalidly created by an EO in Pelaez vs. Auditor
General (1965);
• Invoking Narciso case, reiterated in Candijay case, and
specifically Section 442 (d) of the LGC, petitioner wanted
the SC to affirm the de jure (or at least a de facto) status of
Andong;
• Petitioner attached “certificates: showing exercise of
corporate powers even after Pelaez case was decided in
1965
• RULING:
o Section 442 (d) of the LGC does not sanction the
recognition of just any municipality;
o Only those that can prove continued exercise of
corporate powers can be covered;
o Incidentally, the SC, being not a trier of facts,
cannot ascertain the truthfulness of petitioner’s
allegation of continued exercise of corporate
powers. (there should have been a trial court that
ascertained it.)
DOCTRINE OF OPERATIVE FACT, applicable in invalidly created
LGU
2004 Bar exam (VII)
B. Suppose that one year after Masigla was constituted as a
municipality, the law creating it is voided because of defects. Would
that invalidate the acts of the municipality and/or its municipal
officers?
ANSWER: Municipality of Malabang vs. Benito.
Municipality of Malabang vs. Benito (1969)
• EO 386 creating the municipality in question is a nullity
pursuant to the ruling Pelaez vs. Auditor General and
Municipality of San Joaquin vs. Siva. The EO therefore
“created no office”. This is not to say, however, that the acts
done by the municipality of Balabagan in the exercise of its
corporate powers are a nullity because the EO is, in legal
contemplation, as inoperative as through it had never been
passed. For the existence of EO 386 is “an operative fact
which cannot justify be ignored”. There is then no basis for
the respondent’s apprehension that the invalidation of the
Executive Order creating Balabagan would have the effect
of unsettling many an act done in reliance upon the validity
of the creation of that municipality.
Bar Exam (2011)
Define/explain the following:
A. Doctrine of Operative facts (1%)
B. De facto municipal corporations (1%)
C. Municipal corporation by estoppel (1%)
Questions:
1. What is local autonomy?
24
2. What kind of decentralization has been granted to
provinces, cities, municipalities, barangays and autonomous
regions?
3. True, False or Qualified True/False:
a. The National Government exercises general
supervision over a Province
b. The National Government exercises general
supervision over the ARMM
LOCAL AUTONOMY
Limbona vs. Mangelin – Now, autonomy is either decentralization of
administration or decentralization of power.
• “There is decentralization of administration when the
central government delegates administrative powers to
political subdivisions in order to broaden the base of
government power and in the process to make local
governments “more responsive and accountable,” and
“ensure their fullest development as self-reliant communities
and make them more effective partners in the pursuit of
national development and social progress.”
• Decentralization of Power, on the other hand, involved an
abdication of political power in favor of local governments
units declared to be autonomous. In that case, the
autonomous government is free to chart its own destiny
and shape its future with minimum intervention from
central authorities. According to a constitutional author,
decentralization of power amounts to “self-immolation,”
since in that event, the autonomous government becomes
accountable not to the central authorities but to its
constancy.
Administrative Powers or Political Powers?
• What is the kind of decentralization adopted or practiced in
the Philippines?
o Philippines vs. Aquirre, GR no. 132988, July 19
2000 – Under the Philippine concept of local
autonomy, the national government has not
completely relinquished all its powers over local
governments, including autonomous regions.
Only administrative powers over local affairs
are delegated to political subdivisions. Thus,
policy0setting for the entire country still lies in
the President and Congress. (Also cited in Kida
vs. Senate, October 18, 2011)
Problem:
In 2007, the DSWD embarked on a poverty reduction strategy with the
poorest of the poor as target beneficiaries called “Pantawid Pamilyang
Pilipino Program (4Ps)”. This government intervention scheme, also
conveniently referred to as CCTP, provides cash grant to extremely
poor households to allow the members of the family to meet certain
human development goals. The DSWD also institutionalized a
coordinated inter-agency network among the Department of
Education (DepEd), Department of Health (DOH), Department of
Interior and Local Government (DILG) and the National Anti-Poverty
Commission (NAPC). The only role of local government units was to
“identify the beneficiaries” of the program, but local officials do not
implement the distribution of case incentives to the beneficiaries. The
program was challenged as unconstitutional on the ground that it
allegedly encroached into the local autonomy of the LGUs. Decide.
Pimentel, Jr. vs. Ochoa (2012)
• Certainly, to yield unreserved power of governance to the
local government unit as to preclude any and all
involvement by the national government in programs
implemented in the local level would be to shift the tide of
monopolistic power to the other extreme which would
amount to a decentralization of power explicated in
Limbona vs. Mangelin as beyond our constitutional concept
of autonomy…
• Indeed, a complete relinquishment of central government
powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code
itself weight against it. The National government is, thus, not
precluded from taking a direct hand in the formulation and
 POLITICAL LAW REVIEW JD CLASS 2016-2017

implementation of national development programs “substantial alteration of boundaries” involves and necessarily entails
especially where it is implemented locally in coordination a change in the geographical configuration of a local government unit
with the LGUs concerned. (see also Imbong vs. Ochoa or units. The phrase “boundaries” should not be limited to the mere
[2014] on RH law) physical one, referring to the metes and bounds of the LGU, but also
its political boundaries.
It was argued that DILG MC no. 2010-138 transgressed
constitutionally-protected liberties when it restricted the meaning of Question:
development and enumerated activities which the local government In the LGC of 1991, a municipality may be created with less than 50
must finance from the 20 development fund component of the IRA. It sq km. If it is an island. Under the LGC of 1991, however, there is no
was argued that LGUs local autonomy was violated. Did the Subject such exception when it comes to creation of a province which
DILG MC violate local autonomy? normally requires t least 2,000 sq km. May the implementing rules of
the LGC of 1991 provide for a similar exception?
CREATION, CONVERSION, DIVISION, MERGER, ABOLITION,
SUBSTANTIAL CHANGE OF BOUNDARY Navarro vs. Ermita (2010)
Paragraph 2 of Article 9 of the rules and Regulations Implementing the
A. Regular Political Subdivisions Local government Code of 1991, which states that “the land area
B. Autonomous Regions requirement shall not apply where the proposed province is
C. Special Metropolitan Political Subdivisions composed of one (1) or more islands” violates the Local Government
D. Beginning of Corporate Existence Code of 1991 and therefore null and void.
2011 Navarro vs. Ermita, reversed in 2011
General Requirements:
• SC through J. Nachura, ruled that Congress intended to
apply the exemption on land area requirements enjoyed by
• Law
municipalities and cities which have islands as territories to
• Plebiscite
the province (Province of Dinagat)
• Compliance with Criteria on Income, Land and/or
• Note of J. Carpio’s dissent that the majority opinion will
Population
allow the creation of a province with only one (1) unit (say a
municipality) instead of various component LGUs.
Problem
Problem:
Seventy-five (75) laws creating 75 cities out of municipalities were
passed in 2006, in each of these laws, a provision is provided which
In preparation for the 2016 local and national elections, the Comelec
states: “This Act shall be exempt from the provision of RA 9009.” RA
conducted investigations in order to ascertain the veracity of reports
9009 increased the income requirement for the creation of a city to P
of “ghost precincts”. Based on the investigations it conducted,
100 M locally generated income. When a petition was filed seeking for
Comelec discovered that there are no inhabitants in Barangay Diwata
the declaration of unconstitutionally of these laws the 75
in Municipality of Lazi, Siquijor. Consequently, the COMELEC
municipalities argued as follows:
removed Brgy. Diwata among the list of precincts in the Municipality
of Lazi, Siquijor for purposes of the 2016 elections. Is the act of the
A. The League of Cities already settled the issue in favor of the
Comelect valid?
newly-created cities;
B. The newly-created cities are legitimate under the Doctrine of
Problem:
Operative Fact. Decide.
Brgy. Pobre is the poorest of all brgys in the Municipality of Carmen
Plebiscite Requirement:
mainly because of its rocky, hilly, and mountainous topography. It
strives mainly on the IRA that it receives. Without IRA, it could hardly
Questions:
pay even the honoraria of its barangay tanods.
• Who shall participate?
A. Can it lawfully be abolished?
• What is meant by “units directly affected”?
B. If yes, what is the procedure for the abolition of Barangay
• In what sense affected?
Pobre?
• How is it different from the manner of creating autonomous
regions? Sec 9, RA 7160 – “The law or ordinance abolishing a local
• What about in downgrading or upgrading of city? government unit shall specify the province, city, municipality or
barangay with which the local government unit sought to be abolished
Problem
will be incorporated or merged.”

In 1998, by virtue of RA no. 8528, the City of Santiago, Isabel was

Sec 10, RA 7160 –Plebiscite Requirement. No creation, division,
converted from an independent component city to a component city.
merger, abolition, or substantial alteration of boundaries of local
The constitutionality of RA no. 8528 was assailed in the ground of lack
government units shall take effect unless approved by a majority of
of provision in the said law submitting the same for ratification by the
the votes case in a plebiscite called for the purpose in the political unit
people of Santiago City in a proper plebiscite. The issue was whether
or units directly affected. Said plebiscite shall be conducted by
the downgrading of Santiago City from an independent component
COMELEC within 120 days from the date of effectivity of the law or
city to a mere component required the approval of the people of
ordinance affecting such action unless such law or ordinance fixes
Santiago City. Decide.
another date.

Miranda vs. Aguirre (Sep 1999)

The Supreme Court ruled the plebiscite was required even in case
of conversion.
It observed that that common denominator in Section 10, Articles X of
the 1987 Constitution is the material change in the political and
economic rights of the local government units directly affected as well
as the people therein. It is precisely for this reason that the
Constitution required the approval of the people in the political units
“directly affected.”
Umali vs. COMELEC (April 2014)
While conversion to an HUC is not explicitly provided in Sec 10, Art X
of the Constitution, xxx the conversion of a component city into an
HUC is substantial alteration of boundaries. As the phrase implies,
2009 Bar
The Municipality of Bulalakaw, passed Ordinance No. 1234,
authorizing the expropriation of two parcels of land situated in the
publication as the site of a freedom park, and appropriating the funds
needed therefor. Upon review, the Sangguniang Panlalawigan of Leyte
disapproved the ordinance because the municipality has an existing
freedomg park which, through smaller in size, is till suitable for the
purpose, and to pursue expropriation would be needless expenditure
of the people’s money. Is the disapproval of the ordinance correct?
Explain your answer.
Mother Sanggunian’s REVIEW POWER:
Grounds:

25
 POLITICAL LAW REVIEW JD CLASS 2016-2017
1. If by Sangguniang Panlalawigan:
a. ULTRA VIRES (Sec 56 ©, LGC) [2009 Bar]
2. If by Sangguniang Panlungsod/Bayan:
a. Consistent with Law
b. Consistent with City/Municipal Ordinances (Sec
57, LGC)
LGUs and National Agencies (with Project Implementation
functions)
• “Prior Consultation before implementation”
o No project or program shall be implemented by
government authorities unless the consultation in
Section 2 (C) and 26 of the LGC and prior
approval of the Sanggunian concerned
obtained, provided that occupants affected shall
be given relocation site (Sec. 27, LGC)
Lina, Jr. vs. Pano (2001)
The projects/programs mentioned in Sec 27 should be interpreted to
mean projects/programs whose effects are among those enumerated
in Sec. 26 and 27, to with, those that (1) may cause pollution; (2)
may bring about climatic change; (3) may cause the depletion of
non-renewable resources; (4) may result in loss of crop land,
range-Lang, or forest cover; (5) may eradicate certain animal or
plan species from the face of the planet; and (6) other projects or
programs that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.
(See also Province of Laguna case [2005] and Bangus Fry Fisherfolk
vs. Lanzanas [2003])
“Local Fiscal Autonomy”
• LOCAL FISCAL AUTONOMY: Local governments have the
power to create their own their own sources of revenue in
addition to their equitable share in the national taxes release
by the national government, as well as the power to allocate
their resources in accordance with their own priorities.
• But, this, does not rule out any manner of national
government intervention by way of supervision, in order to
ensure that local programs, fiscal and otherwise, are
consistent with national goals. (Pimentel vs. Aguirre, 2000)
Reasons for giving Congress the power to provide “guidelines
and limitations”:
Manila Electric Company vs. Province of Laguna (1999):
The Legislature must still see to it that:
1. The taxpayer will not be overburdened or saddled with
multiple and unreasonable impositions;
2. Each local government unit will have its fair share of
available resources;
3. The resources of the national government will not be unduly
disturbed; and
4. Local taxation will be fair, uniform and just.
Local Police Power
The “General Welfare Clause”:
Sec 16. General Welfare. Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as
well as powers necessary, appropriate, or incidental for its efficient
and effective governance, and those which are essential to the
promotion of the general welfare.
Basically a delegated power both in its general and specific sense,
unlike in taxation power where the “general power to tax” is
constitutionally guaranteed. Hence, police power is still under the
control of Congress in all its respects, although under Section 5 of the
Code, the eneral welfare provision shall be liberally construed to
give more powers to the LGU.
Requisites for Validity of Local Police Power
Tatel vs. Municipality of Virac:
26
1. Must not contravene the Constitution and statute
2. Not unfair and oppressive (also a consti requirement)
3. Not partial or discriminatory (also a constitutional
requirement)
4. Not prohibited but only regulate lawful trade (deeL De la
Cruz vs. paras where an ordinance prohibited the operation
of night club)
5. Consistent with public policy (because of the requirement
of valid delegation of legislative power) see: (Lim vs.
Pacquing) where it was found out that the “national policy”
was for National government, not for LGUs to grant
“franchises” for operation of jai-alai, LGUs can only regulate
but not grant franchise for operation of jai-alai.
6. Not unreasonable (also a constitutional reqt.) (See: Balacuit
case where an ordinance penalized movie houses that
charged full payment for admission of children between 7-
12)
*Don’t forget lawful subject and lawful means requirement.
Problem
The City of Marikina passed an ordinance which regulates the
construction of fence as follows:
“The Standard height of fences or walls allowed under this ordinance
are as follows:
1. Fences on the front yard – shall be no more than one (1)
meter in height. Fences in excess of one (1) meter shall be
an open fence type, or at least 80% see-thru”.
The objective of the ordinance is “to discourage, repress, or prevent
concealment of prohibited or unlawful acts.” Is this ordinance valid?
Two Tests are usually applied:
1. Rational Relationship Test
2. Strict Scrutiny Test
Using the rational basis examination, laws or ordinances are upheld if
they rationally further a legitimate governmental interest.
Governmental interest is extensively examined and the availability of
less restrictive measures is considered.
Applying strict scrutiny the focus is on the presence of compelling,
rather than substantial, governmental interest and on the absence of
less restrictive means for achieving that interest. (Fernando vs. St.
Scholastica’s College, GR no, 161107, March 12, 2013)
Local Eminent Domain
Specific Requirements: (Sec 19, LGC and Jesus is Lord Christian
School vs. City of Pasig case)
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local
government unit, to exercise the power of eminent domain
or pursue expropriation proceedings over a particular
private proeprty.
2. For public use, purpose, or welfare or for the behalf od
the poor and the landless.
3. There is payment of just compensation, as required under
Section 9, Article III of the Constitution and other pertinent
laws.
4. A valid and definite offer has been previously made to the
owner of the property sought to be expropriated, but said
offer was NOT accepted.
Add: Filstream international Inc. vs. City of Manila HR no. 125218,
January 23, 1998 (in re: expropriation for urban development and
housing)
5. Priorities in the acquisition of land shall be complied with as
mandated by RA no. 7279 (Urban Development and
Housing Act of 1992) (meaning: private lands should be
last in the election of land) (Sec 9 of RA 7279)
6. Expropriation shall be resorted to only when other modes
of acquisition have been exhausted (Sec 10, RA 7279)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
Note: (Jesus is Lord Case)
• The LGU has the burden of proving that the foregoing
requirements have been complied with and that all
reasonable efforts have been exhausted
• Valid and definite offer to the “owner” as shown in the title
of the land.
• IRR on “valid and definite offer” must be complied with
City of Cebu vs. Dedamo (2002)
• While Sec 4. Of Rule 67 of the Rules of Court provides that
just compensation shall be determined at the time of the
filing of the complaint for expropriation (or, time of taking
whichever came first), such rule cannot prevail over RA
7160, which is a substantive law.
• Sec. 4, Rule 67 (time of filing of complaint or taking,
whichever came first) vs. LGC: at the time of “taking”.
Republic vs. Lim (2005)
• The landowner is entitled to recover possession of the
property expropriated if the government fails to fully pay just
compensation to the owner within a period of five(5) years
from the finality of the judgment in an expropriation
proceeding.
American Vda. De Ouano vs. Republic (Feb 9, 2011)
• If the genuine public necessity of expropriation of a private
land ceases or disappears, then there is no more cogent
point for the government’s retention fo the expropriated
land. The same legal situation should hold if the government
devotes the property to another public use very much
different from the original or deviates from the declared
purpose to benefits another private person.
MCIAA vs. Lozada, Sr. (2010)
Reversing “Fery vs. Municipality of Cabanatuan” (1921): “The
expropriator should commit to use the property pursuant to the
purpose stated in the petition for expropriation filed, failing which, it
should file another petitioner for the new purpose. If not, it is then
incumbent upon the expropriator to return the said property to its
private owner, if the latter desired to reacquire the same.”
In case of immediate possession
Before a local government unit may enter into the possession of the
property sought to be expropriated, it must: (1) file a complaint for
expropriation sufficient in form and susbtance in the proper court and
(2) deposit with the said court at least 15% of the property’s fair
market vaue based on its current tax declaration. The law does nto
make the determination of a public purpose a condition the
determination of a public purpose a condition precedent to the
issuance of a writ of possession. (Francia vs. Meyauayan [2008])
Requisites for Validity of Contracts and entered into by LGUs
(asked in the Bar many times)
A. The local government unit must have the power to enter
into the particular contract;
B. Pursuant to Section 22 (c) of the Local Government Code,
there must be prior authorization by the Sanggunian
concerned, and a legible copy of the contract shall be
posted at a conspicuous place in the provincial capitol or
the city, municipal or barangay hall;
C. In accordance with Sec 46 and47, Chapter 8, Subtitle B,
Book V, 1987 Admin Code if the contract involves the
expenditure of public funds, there should be actual
appropriation AND a certificate of availability of funds by
the treasurer of the local government unit (except in the
case of a contract for supplies to be carried in stock)
D. The contract must conform with the formal requisites of
written contracts prescribed by law
Effects of Non-compliance with requisites
27
When a contract is entered into without compliance with A and C
requisites, the same is ultra vires and is null and void Such contract
cannot be ratified or validated.
Ratification of defective municipal contracts is possible only when
there is non-compliance with B and D requirements. Ratification may
either be express of implied.
2 kinds of Ultra Vires Acts:
An act which is outside of the municipality’s jurisdiction is considered
as a void ultra vires act, ahile an act attended only by an irregularity
but remains within the municipality’s power is considered as an ultra
vires act subject to ratification and/or validation. To the former
belongs municipal contracts which (a) are entered into beyond the
express, implied or inherent powers of the LGU; and (b) do not comply
with the substantive requirements of the law e.g., when expenditure of
public funds is to be made, there must be an actual appropriation and
certificate of availability of funds while to the latter belongs those
which (a) are entered into by the improper department, board, officer
of agent; and (b) do not comply with the formal requirements of a
written contract e.g., the statute of frauds. (Land Bank vs. Cacayuran,
GR no. 191667, April 17, 2013)
LOCAL ELECTIVE OFFICIALS
2005 Bar
In the May 8, 1995 elections for local officials whose terms were to
commence on June 30, 1995, Ricky filed on March 20, 1995 his
certificate of candidacy for the Office of Governor of Laguna. He won,
but his qualification as an elected official was questioned. It is
admitted that he is a repatriated Filipino citizen and a resident of the
Province of Laguna. To be qualified for the office to which a local
official has been elected, when at the latest should he be:
a) A Filipino citizen? Explain.
b) A resident of the locality? Explain. (5%)
Citizenship
• Natural-born or otherwise, including “naturalized” citizen of
the Philippines
Frivaldo case: The qualifications in the LGC refer to that of “Elective”
Officials (and not of “Candidates”), hence, these qualifications need to
be possessed by the official not at the time he filed his certificate of
candidacy BUT at the time he takes his oath of office ad assumes his
post (2005 bar exam)
Residence
Residence – synonymous with “domicile” in election laws
• Residence – temporary (physical presence for particular or
temporary purpose/calling) or permanent
• Domicile – permanent (coupled with animus manendi)
Note: there can only be one domicile at a time. There can be 2 or
more residences at a time (ex. Domicile and different temporary
residence)
PROOF OF NON-ABANDONMENT OF DOMICILE:
1. Animus manendi and
2. Animus revertendi
PROOF OF ABANDONMENT OF OLD DOMICILE:
1. Actual physical presence in the new domicile
2. Animus manendi in the new domicile; and
3. Animus non-revertendi to domicile of origin
(Gallego and Romualdez case)
Some Important Rulings:
• Faypon Case – out of domicile of origin to pursue studies,
engage in business or practive vocation, not sufficient to
constitute abandonment of domicile of origin
 POLITICAL LAW REVIEW JD CLASS 2016-2017
• Coquilla case- naturalization in foreign country results in
abandonment
• Caasi case – becoming a permanent immigrant (“greencard
holder”) to the US constitutes abandonment of residency
• S. Jalosjos vs. Comelec June 25, 2013: A temporary stay in
a dtranger’s house cannot amount to residence.
*Approval of voter registration does not presuppose six-month
residency in the place prior to registration.
Disqualifications (Sec 40, LGC)
1. Sentenced by final judgment for (1) offense involving moral
turpitude OR (2) offense punishable by one year or more of
imprisonment, within 2 years after service of sentence.
a. Hence, after 2 years- the individual or candidate
regains his eligibility.
i. XPN: UNLESS, the crime for which had
been convicted carries with it as
principal or accessory penalty perpetual
disqualification under RPC (Jalosjos vs.
Comelec)
Art 40 of the LGC and Perpetual Absolute Disqualification to Hold
Public Office in RPC
• While Section 40 (a) of the LGC allows a prior conviction to
run for local elective office after the lapse of 2 years from
the time he serves his sentence, the said provision should
not be deemed to cover cases wherein the law imposes
a penality, either as principal or accessory, which has
the effect of disqualifying the convict to run for public
office. (Jalosjos vs. Comelec, GR no. 205033, June
18,2013)
“Within 2 years from service”
The phrase “within 2 years after serving sentence” should have been
interpreted and understood to apply both to those who have been
sentenced by final judgment for an offense involving moral
turpitude and to those who have been sentenced by final
judgment for an offense punishable by one (1) year or more of
imprisonment. The place of the comma (,) in the provision means that
the phrase modifies both parts of Sec 40 (a) of the LGC. (Moreno vs.
Comelec [2006, En banc])
Effect of Probation:
This is as good a time as any to clarify that those who have not served
their sentence by reason of a grant of probation which, we reiterate,
should not be equated with service of sentence, should not likewise
be disqualified from running for a local elective office because the
two-year period of ineligibility under Sec 40 (a) of the LGC does not
even begin to run. (Moreno vs. Comelec, 2006)
Examples of “moral turpitude” crimes
• Hanrieder vs. De Rivera (2007) and Inre: Re: Conviction of
Imelda B. Fortus, Clerk III, RTC Br. 40, Calapaan City, the
Court characterized the violation of BP 22 as a crime
involving moral turpitude.
• De la Torre vs. Comelec: Violation of Anti-Fencing Law is a
crim involving moral turpitude
Continued…
2. Removed from office as a result of administrative case
(prospective application only; any “office” {See: Osorio case
2004])
a. This ground is new in LGC and not present in the
old one. One must have been removed under the
LGC of 1991 to be disqualified under this ground.
3. Convicted by final judgment for violating the oath of
allegiance to the Republic
4. Those with dual citizenship. (Manzano vs. Mercado: should
be interpreted as “dual allegiance”) See also Cordora (2009)
a. Give at least 2 basis for distinction of dual
citizenship and dual allegiance.
28
i. Dual allegiance is inimical to national
interest
ii. By nature: dual citizenship is involuntary
and therefore, cannot be blamed to
have acquired such as compared to
dual allegiance.
Macquiling vs. Comelec *April 16, 2013; July 2, 2013)
• Arnado, by using his US passport after renouncing his
American citizenship, has recanted the same Oath of
Renunciation he took. Section 40 (d) of the LGC applies to
his situation. He is disqualified not only from holding the
public office but even from becoming a candidate
• Arnado’s category of dual citizenship is that by which
foreign citizenship is acquired through a positive act of
applying for naturalization.
• This is distinct from those considered dual citizens by virtue
of birth, who are not required by law tot ake the oath of
renunciation as the emre filing of the certificate of candidacy
already carries with it an implied renunciation of foreign
citizenship. Dual citizens by naturlizaton, on the other hand,
are required tot ake not only the Oath of Allegiance to the
Republic of the Philippines but also to personally renounce
foreign citizenship in order to qualify as a candidate for
public office.
• Arnado became dual citizen by naturalization hence, needs
to personally renounce foreign citizenship. As compared to
Manzano, who was dual citizen by birth, oath of allegiance
was held to be enough.
Rodriguez vs. Comelec (1996)
“FUGITIVE FROM JUSTIVE includes not only those who flee after
conviction to avoid punishment but likewise who, after being charged,
flee to avoid prosecution.” The definition thus indicates that the intent
to evade is the compelling factor that animates one’s flight from a
particular jurisdiction. And obviously, there can only be an intent ot
evade when there is knowledge by fleeing subject of an already
instituted indictment, or of a promulgated judgment of conviction.
Eligibility of Ecclesiastics to a local elective position
• Section 2175 of the Old Admin Code stated: “In no case
shall there be elected or appointed to a municipal office
ecclesiastics, soldiers in active service, persons receiving
salaries or compensation from provincial or national funds,
or contractors for public works of the municipality”
• In Pamil vs. Teleron (1978), the voter for 7 was not enough
to declare the above provision unconstitutional
Term of office
Art X, Sec 8 of Constitution – 3 years (2006 bar)
Terms of Barangay officials – fixed by law
• RA no. 8524 (1998) – 5 years
• RA 9160 (2002) – 3 years (up to three terms only and to
begin in year 1994)
• RA 9340 (2005) – extended the term (which ended on Nov.
30, 200) to Nov. 30, 2007
Note: “Hold-over Principle” validly applies to barangay officials
ONLY. (Sambarani vs. Comelec [2004])
The “three term limit rule”
Elements:
1. That the official concerned has been elected for three
consecutive terms in he same local govt pose AND
2. That he has fully served three consecutive terms.
Interruption:
• Voluntary – resignation, abandonment (Aldovino case) =>
covered by the concept of renunciation of the office and not
merely an interruption.
 POLITICAL LAW REVIEW JD CLASS 2016-2017

• Involuntary – not the initiative of the official, he may have • Conditions for the rule of succession under Section 45 of
been ordered to step down; when he agrees with the the LGC to apply:
Comelec to step down => It interrupts the consecutiveness a) The appointee shall come from the same political
of the terms of office party as that of the Sanggunian member who
caused the vacancy;
2008 Bar b) The appointee must have nomination and a
certificate of Membership (bona fide
Abdul ran and won in the May 2001, 2004 and 2007 elections for Vice- membership) from the highest official of the
Governor of Tawi-Tawi. After being proclaimed Vice-Governor in 2004 political party concerned.
elections, his opponent, Khalil, filed an election protest before the
Comelec. Ruling with finality on the protest, the Comelec declared 2008 Bar
Khalil as duly elected Vice-Governor though the decision was On August 8, 2008, the Governor of Bohol died and Vice-Governor
promulgated only in 2007, when Abdul had wholly served 2004-2007 Cesar became the Governor by operation of law. Accordingly, Benito,
term and was in fact already on his 2007-2010 term as Vice-Governor. the highest ranking member of the Sangguniang Panlalawigan was
elevated tot eh position of Vice-Governor. By the elevation of Benito
a) Abdul now consults you if he can still run for Vice Governor to the office of the Vice-Governor, a vacancy in the Sangguniang
of Tawi-Tawi in the forthcoming May 2010 elections on the Panlalawigan was created. How should the vacancy be filled? (3%)
premise that he could not be considered as having served a
Vice-Governor from 2004-2007 because he was not duly
elected to the post, as he assumed office merely as a Illustration
presumptive winner and that presumption was later Mayor X XXX
overturned when the COMELEC decided with finality that he V-Mayor Y PPP
had lost in the May 2004 elections. What will be your Councilors
advice? (3%) A Independent
B XXX
Court: For purposes of counting terms, we do not distinguish whether
C PPP
it was de jure or de facto
D PPP
E KKK
2011 Bar
F Independent
G YYY
Alfredo was elected municipal mayor for 3 consecutive terms. During
H PPP
his 3rd term, the municipality became a city. Alfredo ran for city mayor
during the next immediately succeeding election. Voltaire sought his
disqualification citing the 3 term limit for elective officials. Will
Problem
Voltaire’s action prosper?

X, Y and Z were the candidates for Mayor in Municipality of ABC. Y

ANSWER: NO. The Supreme Court focused on the spirit of
had earlier filed a petition for the cancellation of X’s certificate of
the law which is to prevent the perpetual holding of a
candidacy on the ground that X failed to comply with the 6-month
position by a single person or clan. Permitting Voltaire’s
residency requirement. During the election, and while the
action would circumvent the intent. He has served the same
disqualification case was still pending, X received the highest number
territory and inhabitants.
of votes followed by Y. Thereafter, the COMELEC disqualified X. W,
the elected Vice-Mayor, insisted that he should become the Mayor.
2011 Bar
Should W be allowed to assume the office of the Mayor?
Adela served as Mayor of Kasim for 2 consecutive terms. On her third
term, COMELEC ousted her in an election protest that Gudi, her • Before COC filing – petition to deny due course
opponent, filed against her. Two years later, Gudi faced recall • If COC has been given due course- remedy is cancellation
proceedings and Adela ran in the recall election against him. Adela of coc; general petition for disqualification
won and served as Mayor for Gudi’s remaining term. Can Adela run • After proclamation – election contests, quo warranto
again for Mayor in the next succeeding election without violating the 3
A: Apply rules on succession Sec 44 of LGC. Vice Mayor was
term limit? (Lonzanida and Socretes case)
permitted to assume office instead of the 2nd placer. One who runs
who violated the 3 term limit rule has failed to become a candidate
and therefore, not open for substitution.
Illustration

Mayor X XXX
V-Mayor Y PPP vetlana Jalosjos vs. Comelec (June 25, 2013)
Councilors
The rule on succession in Section 44 of the Local Government Code
A XXX
cannot apply in instances when a de facto officer is ousted from office
B XXX
and the de jure officer takes over. The ouster of a de facto officer
C PPP
cannot create a permanent vacancy as contemplated in the Local
D PPP
government Code. There is no vacancy to speak of as the de jure
E KKK
office, the rightful winner in the elections, has the legal right to assume
F Independent
the position.
G YYY
H PPP
Note; Distinguish this case from Talaga Case (2012)!! See, however,
Chua vs. Comelec (April 5, 2016)
Navarro vs. CA (2001)
The reason behind the right given to a political party to nominate a
**The safest approach is to apply majority in Talaga. But if same with
replacement where a permanent vacancy occurs in the Sanggunian is
Jalosjos, apply Jalosjos. But if dual citizenship – when there is no
to maintain the party representation as willed by the people in the
renunciation of Am citizenship and use of US passport –
election.
DISCIPLINARY ACTIONS
RULES ON SUCCESSION:
Filing of Complaint:
As per Navarro vs. CA - A is the one who caused the vacancy
• Office of the President – Province, HUC & City
This rule has been emphasized under Damasen vs. Tumamao (2010):

29
 POLITICAL LAW REVIEW JD CLASS 2016-2017
• Sangguniang Panlalawigan – Municipality (appealable to the
Office of the President)
• SP or SB – Barangay
[final and executory]
Concurrent Jurisdiction with Ombudsman
• In administrative cases involving concurrent jurisdiction of
two are more disciplining authorities, the body where the
complaint is filed first, and which opts to take cognizance of
the case, acquires jurisdiction to the exclusion of other
tribunals exercising concurrent jurisdiction.
• Under RA 7160, the sangguniang panlungsod or
sangguniang bayan has disciplinary authority over any
elective barangay official. Since the complaint against the
petitioner was initially filed with the office of the
Ombudsman, the Ombudsman’s exercise of jurisdiction is
to the exclusion of the sangguniang bayan whose exercise
of jurisdiction is concurrent. (Alejandro vs. office of the
Ombudsman, GR no 173121, April 3, 2013)
Rules and Prohibitions during Investigation
1. Investigation shall commence 10 days after respondent
answers;
2. Investigation shall be held only in the place where the
respondent holds office;
3. No investigation within 90 days immediately prior to
local election and no preventive suspension shall be
imposed within said period (if already imposed ipso facto
lifted);
Preventive Suspension
• It is not a penalty, hence invocation of due process is
generally not appropriate
• The sole objective of an administrative suspension is “to
prevent the accused from hampering the normal course of
the investigation with his influence and authority over
possible witnesses or to keep him off the records and other
evidence” and “to assist prosecutors in firming up a case, if
any, against an erring local official.” (Bunye vs. Escareal
[1993]; Ganzon vs. CA [1991])
Authority:
1. President, in the case of HUC and ICC
2. Governor, in the case of CC and Mun;
3. Mayor; in the case of Barangay
CSQN:
a) issues have already been joined;
b) evidence of guilt is strong
c) given the gravity of the offense, a responent might influence
witnesses or pose a threat to records/evidence [Sec 63;
Jason III vs. CA, 2006]
Rights of Respondent
• Hearing
• Counsel
• Cross-Examine witnesses
• Compulsory Process
• Period of Investigation(90 days)
• Period to Decide (30 days)
• Penalty of Suspension shall not exceed the unexpired term
or a period of 6 months per administrative case, nor a bar to
a candidacy (Sec 66[b])
Famous (or infamous) Aguinaldo Doctrine
• A public official cannot be removed from office for
administrative conduct committed during a prior term, since
his re-election to the office operates as a condonation of
the officer’s previous misconduct to the extend of cutting
off his right to remove him therefore.
30
• It applies only to administrative case for misconduct, so the
official may still be held criminally or civilly liable for the
same act (CF: Three-Fold-Liability)
Garcia vs. Mojica
• Supreme Court disagreed because it is really impossible to
determine actual or lack of knowledge by the electorates
about the misconduct at the time they case their votes.
What can be determined is that the misconduct was
committed during a prior term. The fact that the
misconduct was committed during the prior term,
Aguinaldo doctrine applies.
2011Bar
Governor Paloma was administratively charged with abuse of
authority before the Office of the President. Pending hearing, he ran
for re-election and won a second term. He then moved to dismiss the
charge against him based on this supervening event. Should the
motion be granted?
Administrative Appeals
• Office of the President, in case of decision of SP of
Province, HUC and ICC;
• SP of Province, in the case of decision of SP of CC and
municipality
Note: Decision of the Office of the President shall be final and
executory
Execution Pending Appeal
• The respondent shall be considered as having been
placed under preventive suspension during the pendency
of the appeal in the event he wins such appeal. He shall
be paid his salary and benefits if the appeal exonerates him.
RECALL
• Recall is a mode of removing an elected official by the
people before the end of his term
• Ground: “loss of trust and confidence”;
• No more preparatory recall assembly (PRA) as mode of
initiating recall.
• There is only one mode of initiating recall: By the Registered
Voters (following certain percentage)
See: RA 9244 (Feb 19, 2004)
Effectivity of Recall
• Upon the election and proclamation of a successor (elected
candidate other than the official subject of recall) in a recall
election.
• If the official subject of the recall wins in the recall election,
recall “fails”.
Prohibitions in Recall Proceedings:
• No registration during recall process;
• Recall election should only be once during the term of the
official. (Note of “election””, not “proceeding”)
• No recall (election) shall take place within one (1) year from
date of official’s assumption to office or one (1) year
immediately preceding a regular election (day of election
and that election affecting the office of the official
concerned).
2011 Bar
A was the duly elected Mayor of Tunawi in the local elections of 2004.
He got 51% of all the votes cast. Fourteen months later, B, who also
ran for mayor, filed with the Local Election Registrar, a petition for
recall against A. The COMELEC approved the petition and set a date
for its signing by other qualified voters in order to garnet at least 25%
of the totla registered voters or total number of those who actually
 POLITICAL LAW REVIEW JD CLASS 2016-2017

voted during the local election in 2004, whichever is lower. A attacked • Effectivity of local proposition
the COMELEC resolution for being invalid. Do you agree with A? • Authority of Courts

Human Resource and Development Settlement of Boundary Disputes

• Who may appoint local officials and employees?
• What law governs the appointments of local officials and
employees?
• Does the appointment process require the attestation of the
Civil Service Commission?
• How will the resignation of a Vice-Mayor and a Member of
the Sanggunian be effected?
• What are the grounds for the preventive suspension of an
appointive local official or employee?
• What penalty may be imposed upon erring local officials
and employees?
• Amicable Settlement first by the SP concerned within 60
days
• Joint referral for settlement
• If not settled amicably, SP issues certification and TRIES the
case. The SP shall decide the case within 60 days from date
of certification.
• Decision of SP may be appealed to the RTC
If there is adamant refusal from the Province, you can go to RTC
directly.

Who among the following local elective officials can practice his
profession?

• Mayor X, who is a doctor – he can practice

• Vice-Mayor Y, who is an engineer – he can practice
• Councilor Z, who is a lawyer – he can practice because he’s
not a local chief executive because he’s a member of the
sanggunian Subject to the rules on conflict of interest.
• There is also no prohibition among these officers NOT to
have financial interest.

Problem

The Sangguniang Panlungsod (SP) of Politika City is composed of X,

the Vice-Mayor/Presiding Officer, 10 regular members (Councilors A-
J), 2 ex-officio members (Liga ng mga Barangay and SK Presidents).

A. What is the quorom of the SP? Count the vice-mayor in determining

the quorom since he is the presiding officer

B. If Councilor A is on leave and Councilor B is outside the country,

what is the quorom of the SP of Politika City? If one is out of the
country, beyond the compulsory process of the senate, then the
quorom should only be on the basis of those who are in the
Philippines.

C. How many votes are required in order to suspend Councilor C for

disorderly behavior?

QUOROM

La Carlota City vs. Rajo (2012)

“the entire membership must be taken into account in computing the

quorom of the sangguniang panlalawigan, for while the constitution
merely states that “majority of each House constitute a quorom,”
Section 53 of the LGC is more exacting as it requires that the
“majority of all members of the sanggunian…elected and
qualified” shall constitute a quorom. The trial court should thus have
based its determination of the existence of a quorom on the total
number of members of the Sanggunian without regard to the filing of a
leave of absence by Board Member Sotto.” (citing Zamora vs.
Caballero, 2004)

LOCAL LEGISLATIONS

• Ordinance vs. Resolution

• Approval of Ordinance
• Veto by Gov./Mayor (vs. Punong Barangay)
• Veto by the LCE vs. Review by Mother SP
• Rules on Veto (Is item veto allowed?; How many times
may the LCE veto?)
• Effectivity of Ordinance (See Arts. 113-114, IRR); What is
the effect of Review mechanism by the Mother SP to the
effectivity of the ordinance?;
• What ordinance should be published?

Initiative and Referendum

• Distinction
• Subject matter
• Limitations

31
 POLITICAL LAW REVIEW JD CLASS 2016-2017
PUBLIC INTERNATIONAL LAW
Definitions of Public International Law
Post Modern or Contemporary Definition
• Sec 101, Restatement (third) of the law by the American
Law Institute of Foreign Relations Law of the United States
(1987): “rules and principles of general application dealing
with the conduct of states and of international organizations
and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical”
What are the Regimes or Divisions of PIL? Explain each briefly.
Three Regimes/Divisions of PIL
• LAW OF PEACE
o Law of treaties
o Law of the sea
o Diplomatic relations
• LAWS OF WAR
o Jus Ad Bellum (Legality of engaging in war)
o Jus in Bello (legality of conduct of war)
• LAW OF NEUTRALITY
o Governs the conduct of states not engaged in war
Is the United Nations (UN) a “subject” or “object” of international law?
• UN is a non-state actor which is a subject of international
law. UN and WTO have been accepted in the family of
nations as actors in international community.
Reparation for Injuries case (ICJ ADVISORY OPINION, 1949)
Meaning of International legal personality:
ICJ: The ability to possess international rights and duties and the
power to sustain these rights by bringing international claims”
While it is conceded that original international legal personality
belongs to the main actors of international law, namely states, the UN
had international legal personality through the fact that its member
states, by the very fact of creating such an organization, must have
transferred some of their powers over the organization. (“Derivative
International Legal Personality”)
ICJ: ‘The requirements of international life and the progressive
increase in the collective activities of States had already given rise to
instances of action upon the
SUBJECTS OF INTERNATIONAL LAW
• SUBJECTS: those that enjoy international legal personality
and being capable of possessing international rights and
duties, including the right to bring international claims.
• Primarily: STATES
• Secondarily: International organizations (UN< WTO),
individuals (protected persons of IHL, insurgents and
national liberation movements, minorities), juridical persons
(institutional companies), and NGOs (ICRC, Greenpeace,
Amnesty international)
• Case: Reparation for Injuries Case (ICJ Advisorty Opinion
1949)
Questions:
1. Distinguish between material and formal sources of PIL
a. Formal – manner by which it was established inks
the legitimacy of that international law; like treaty,
legislation, state practice
b. Material- substantive content of international law;
that’s where we can find the law.
2. What are the sources of PIL
3. Distinguish between “law-creating” sources from “law-
determining” sources of PIL
Sources (Formal or Material) of PIL
• Art 38 (1) Statute of ICJ:
32
• Primary: create the law; existence
a) International conventions
b) International custom
c) General principles of law
• Subsidiary: confirmation that these laws exists
a) Judicial decisions and teaching od most highly
qualified publicists.
* remember that PIL is common law – in the same manner that stare
decisis do not apply; no fixed rule on judicial reasoning.
PRIMARY vs. SUBSIDIARY
• “law creating” processes vs. “law determining”
(Schwarzenberger)
• Overlapping of sources (Shaw)
NICARAGUA CASE
The US obliged by declaring that they will submit to the J of ICJ in
advance with reservation is on the application of a multi-lateral treaty.
US: Nicaragua is invoking the UN charter that is a multi-lateral
convention, therefore, ICJ cannot have jurisdiction.
ICJ: US is charged with violation of non-use of force which has turned
into an international customary international law. Even if transposed to
a convention law, customary international law may exist WITH
convention law. Hence, there can be overlapping of sources.
• Hierarchy of sources? (See Travaux Preparatories)
International Conventions/Treaties
• “…whether general or particular and establishing rules
expressly recognized by the contesting States”
• The term “convention” includes (and actually means) treaty
• Other terms: agreements, pact, understanding, protocol,
charter, statute, act, covenant, declaration, engagement,
arrangment, accord, regulation and provision
• “Law-Making Treates” vs. “Contract Treaties”
o Convention and treaties may develop to
customary international laws. This applies to law-
making treaties only.
o Contract-treaties are still binding but they do not
develop to customary international law – being
temporary in character (ad hoc). Both are binding
but the effect of a contract treaty only binds those
who signed it.
CUSTOM
• Art 38 (1), ICJ Statute: “…As evidence of a general practice
accepted as law”;
• Sec 102, Restatement (third): “Customary international law
results from a general and consistent practice of states
followed by them from a sense of legal obligation.”
• Two elements:
o OBJECTIVE – state practice
o SUBJECTIVE – opinio juris sive necessitates
Cases on Custom as Sources of PIL:
• Paquete Habana Case
• Nicaragua vs. USA, ICJ Report (1986)
• North Sea Continental Shelf Cases (Germany vs. Denmark &
Germany vs. Netherlands, ICJ Report, 1969)
• Continental Shelf Case (Libya vs Malta, ICJ Report, 1985)
• Asylum Case (Columbia vs. Peru, ICJ Report, 1950)
• Anglo Norwegian Fisheries Case (UK vs. Norway, ICJ
Report, 1951)
• Fisheries Jurisdiction case (UK vs. Iceland, ICJ Report,
1973)
• Legality of the Threat or Use of Nuclear Weapons Case (ICJ
Advisory Opinion, 1996)
• Lotus Case (France vs. Turkey, PCIJ Series A no. 1018,
1927)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
Guide Questions in Understanding CIL:
1. What constitutes state practice?
a. The act must be official
b. The act must be done by a state which may be
affected by the norm – relevant state practice
principle
i. The concept of such principle is to
know the generality of the practice
ii. See: Norway Fisheries case
2. How much practice is required? (duration, consistency,
repetition and general requirements)
a. Relevant State Practice Principle
3. What is the value of a state’s (1) abstention or failure to
protest against a norm AND (2) protest against a norm? (1)
May be a tacit consent to the norm; (2) protest against the
norm cannot bar the growth of CIL
4. Are dissenting and non-participating states bound by
custom?
a. no requirement of unanimity
b. Persistent objector/dissenter principle” – to be
exempt under CIL”
i. Must have dissented to the application
of the norm at the outset (formation of
CIL)
ii. The objection or dissent must be
categorical and consistent
c. UK vs. Norway in delimiting fisheries zone – ICJ
noted that the 10-mile rule had been objected to
by Norway for several years already and so ICJ
noted that Norway had never applied the 10-mile
rule in delimiting its fisheries zone.
5. What evidence is required for opinio juris?
6. May treaties be invoked as evidence of customary law?
7. Is there a normative hierarchy in customary law?
8. Would declarations of law adopted by the UN G.A.
constitute presumptive evidence of accepted international
law, irrespective of actual state practice?
The Paquete Habana Case 175 US 677 (1900)
Fact: Fishing vessels of Spain were captured by US Armed Forces as
prize of war. It was established that the vessels, which were not
armed, were not aware of the existing war between Spain and the US
and the blockade ordered by the US government against Cuba.
Held: It is customary international law that coast fishing vessels,
pursuing their vocation of catching and bringing in fresh fish, are
exempt, with their cargoes and crews, from capture as prize of war.
This the US has also recognized as law as shown in the various
treaties it had entered into the past.
1. Why was it important for the US Court to characterize the
status of the norm on captured fishing vessels in times of
war as CIL?
2. How did the US SC determine state practice in the norm?
Some evidence of state practice in Paquete Habana case:
• In 1403 and 1406, Henry IV of England issued orders
protecting fishermen of foreign states;
• 1521 Treaty between Emperor Charles V and Francis I of
France;
• 1536 Dutch edicts which permitted herring fishing in time of
war;
• During the American war, Louis XVI of France addressed a
letter to his admiral exempting fishermen from apture;
• 1785 Treaty between the US and Prussia calling for the
protection of fishermen in time of war;
• 1848 Treaty between the US and Mexico incorporating the
terms in the 1785 US-Prussia Treaty
Nicaragua vs. USA, ICJ Report (1986)
Key Principles:
33
1. General customary international law must be determined by
the general practice of the states and not just by the states
party to the dispute before the ICJ. Opinio Juris may be
deduced from the attitude of the parties concerned and that
of states to certain General Assembly Resolutions.
2. The prohibition on the use of force is jus cogens.
3. Principle of non-intervention is customary international
law and therefore, not affected by treaty stipulation.
4. Customary International Law can exist alongside treaties
Proof of OPINIO JURIS in Nicaragua case
On the Prohibition against the use of force and principle of non-
intervention:
• General Assembly Resolution 2625 (XXV)
• Resolution of the 6th international conference of American
States Concerning Aggression 18 Feb 1928
• Montevideo Convention on the Rights and Duties of States
26 December 1933
Q: Is “long period of practice” relevant and important in
determining the formation of customary international law? May
customary international law be formed in a short period of time?
Is there such a norm as “instant customary law”?
North Sea Continental Shelf Cases:
Key principles:
• Short passage of time is not necessarily a bar to the
formation of customary international awl. What is controlling
is that the state practice, including that of states whose
interests are specially affected, must be extensive and
virtually unfirms with regard to the provision in such a way
as to show a general recognition that it is a binding law.
• Like in the case of the attack on the World trade Center in
NY which prompted to the instant customary law classifying
the attach as an armed attach justifying collective self-
defense.
Q: Who has the burden of proving the existence of a customary
international law?
Asylum Case (Columbia vs Peru, ICJ report, 1950)
**Apart from consistency and generality, uniformity is also important in
Customary International Law
Key Principle:
• The burden of proof lies with the party alleging the existence
of the custom. It must demonstrate that the custom relied
upon was established in such a manner so as ot become
binding on the other day. An alleged regional custom
demands greater uniformity in practice than a general
custom.
Anglo Norwegian Fisheries Case (Uk vs. Norway, ICJ Reports,
1951)
Key Principle:
• A state, that from the outset consistently ibjects to a
particular practice, is not bound by any rule of alleged
customary international law which may arise from practice
• ICJ: In any event, the ten-mile rule would appear to be
inapplicable as against Norway, inasmuch as she has
always opposed an attempt to apply it to the Norwegian
coast.
ICJ Opinion and Voting:
• Unanimous, on the principle that “there is in neither
customary customary nor conventional international law any
 POLITICAL LAW REVIEW JD CLASS 2016-2017
specific authorization of the threat or use of nuclear
weapons”
• Unanimous on the principle that “a threat or use of nuclear
weapons should also be compatible with the requirements
of the international law applicable to armed conflict and IHL
as well as specific obligations under treaties dealing with
nuclear weapons”
• 7-7, on the principle that “while the threat or use of nuclear
weapons would generally be contrary to the rules of IHL in
armed conflict, the Court cannot conclude definitively
whether it would be lawful or unlawful in an extreme
circumstance of self-defense, in which the very survival of
the State would be at stake”
• Unanimous, on the principle that there exists an obligation
to pursue in good faith towards nuclear disarmament.
Problem:
Lotus, a French steamer, and a Turkish steamer, collided on the high
seas. The Turkish steamer sank and eight Turkish sailors died. The
French officer on watch of the Lotus was prosecuted in Turkey.
French government argued that the “flag state rule” is not exclusive
and that there has been no rule of customary international law which
gave exclusive jurisdiction of the flag state.
Lotus Case (France vs. Turkey, PCIJ Series A no. 1018, 1927)
Key Principle:
1. Restriction upon the independence or sovereignty of states
cannot be presumed;
2. Jurisdiction is territorial but international law does not
prohibit a state from exercising jurisdiction in its own
territory over a case relating to acts which have taken place
abroad;
3. No definite rule of customary international law regarding
collision cases in the high seas (note: there are some rules
now on collision cases in the high seas under UNCLOS III of
1982); What about “abstention” by some states to exercise
criminal jurisdiction for crimes committed abroad, does it
offer evidence that such practice of abstention is
obligatory?
General Principles of Law
• Recognized by civilized (peace-loving) nations;
• Aimed at providing solutions to controversies where treaty
law or customary law provides no guidance
• “LAW” can refer to both “international law” and “municipal
law”
• GPL – principles of law practiced and obtaining in practice
of courts in nations which transposed to GPL like prior
exhaustion of admin remedies, estoppel, prescription, good
faith
Cases:
Barcelona Traction (Belgium vs. Spain, 2nd Phase, ICJ Report,
1970)
Barcelona alleged that it was in bankruptcy because of Spain
regulations. Canada did not clearly commit on extending diplomatic
protection over Barcelona Traction. So Barcelon traction thought of
having Belgium protect it since most of its stockholders were
Belgians. Court denied diplomatic protection extended by Belgium
using Corpo Law principle – that the corporation has a separate and
distinct personality apart from its stockholders.
Key Principle:
• In the absence of applicable international law, cognizance
must be given to the relevant institutions of domestic law,
otherwise, the ICJ
• ICJ: “In the field of diplomatic protection, international law
was in continuous evolution and was called upon to
recognize institutions of municipal law. In municipal law, the
34
concept of the company was founded on a firm distinction
between the rights of the company and those of the
shareholder. Only the company, which was endowed with
legal personality, could take action in respect of matters
that were of a corporate character. A wrong done to the
company frequently cause prejudice to its shareholders, but
his did not imply that both were entitled to claim
compensation. Whenever a shareholder’s interest were
harmed by an act done to the company, it was to the latter
that he had to look to institute appropriate action.”
South-west Africa Case (2nd Phase, ICJ Report 1966)
Key Principle:
• ACTIO POPULARIS (the action to obtain remedy by a
person or a group in the name of the general public without
being or directly representing the victim) is not recognized
as a general principle of law. In international law, it refers to
the action taken by a State in the name of the international
community even if it is not directly the victim.
Netherlands vs. Belgium (PCIJ 1937, The River Meuse Case)
Key Principle:
• The Statue expressly directs the application of general
principles of law recognized by civilized nations, and
principles of equity have an established place in the legal
system.
• Q: What general principle of law was applied by the PCIJ in
deciding the case? Clean Hands doctrine
Chorzow Factory Case (Germany vs. Poland, PCIJ 1928)
• “It is a general conception of law that any breach of an
engagement involved an obligation to make reparation…it is
a principle of international law that a reparation of a wrong
may consist in an indemnity corresponding to the damage
which the nationals of the injured State have suffered as a
result of the act which is contrary to international law” (at
27-29)
• Just and Fair Treatment – principle of law that all states
which permitted the lawful stay of foreigners in their territory
that they must afford the foreigners and their rights over
their property JUST AND FAIR TREATMENT
• ICJ: “It (UN) is at present the supreme type of international
organization, and it could not carry out the intention of the
founders if it was devoid of international personality. It must
be acknowledged that its Member, by entrusting certain
functions to it, with the attendant duties and responsibilities,
have clothes it with the competence required to enable
those functions to be effectively discharged”
Has the ICJ listed down who are the MOST highly qualified publicists?
NO. but it is ascertainable like Grotius, Ackeherst, Crawford
JUDICIAL DECISIONS AND PUBLICISTS
• ICJ decisions – no stare decisis, therefore only applicable to
ICJ and the parties.
• Brownly observes that ICJ looks at its past decisions to
guide them with present cases.
• Subsidiary means only
• Subject to Article 59 of the Statute of the ICJ (the decision
of the Court has no binding force except between the
parties and in respect of that particular case), in other
words, there is no doctrine of stare decisis in ICJ decision. If
we distinguish retio decidendi from obiter dictum, then it’s
like we acknowledge stare decisis.
• ICJ decisions are independent of judicial decisions of other
newly created tribunals such as the ICC, etc. for lack of
formal relationship between these tribunals
• Teaching of the MOST highly qualified publicists
 POLITICAL LAW REVIEW JD CLASS 2016-2017
• The role of the international law commission (ILC)
o Confirmed by the case of Hungary vs. Slovakia
• Opinions of international organizations and soft laws may
also be considered sources of international law.
o Soft Laws are non-legally binding documents.
o What document in international law
Princple of Non Liquet vs. Ex Aequo Et Bono
NON LIQUET – not clear, consequence of this principle ICJ can make
use of equitable principles to avoid vacuum on PIL
EX AEQUO ET BONO – there is a principle of law applicable to the
dispute but the parties found the law to be not reasonable or
applicable, hence, agreed not to apply the law and apply equity
instead.
Art 38 (2) ICJ Statute Ex Aequo et bono
CUSTOM VS. USAGE/COMITY
• Custom – is a practice tht states believe themselves to be
under a legal
• COMITY – convenience, equity (insert more)
Questions:
1. What is jus cogens norms?
2. What is the relationship between jus cogens norms and
erga omnes norms?
3. What is the difference between erga omnes norms and erga
omnes inter partes norms?
4. Has the municipal law principle of actio popularis been
elevated as general principle of law in international law?
Jus Cogens and Erga Omnes
All state for that matter are affected parties to the case. That’s why the
traditional prohibition against piracy, universal jursidiction may be
exercised.
Even the general principle of proper party holds true in international
courts. However, if the obligation involved is erga omnes then any
state can be a party.
Barcelona Traction Case
• “33. In particular, an essential
International Law and Municipal Law
• Which law prevails in case of conflict?
o Theories: Monist (incorporation) &Dualism
• Are domestic laws relevant in international law?
• How do rules of international law take effect in domestic
legal system?
o Theories: Incorporation and Transformation
(Strong vs. Weak)
o All three branches in PH can transform PIL into
domestic law. By strong transformation – state
permits only transformation via legislative action
(UK);
• What is the status of PIL in Philippine Legal System?
o GAPIL
o TBPIL
STATES and GOVERNMENTS
Elements of “State”:
1. Permanent population
2. Defined territory
3. Government
4. Capacity to enter into relations with other States
35
(Art 1, 1933 Montevideo Convention on the Rights and
Duties of States)
“State” vs. “Government”
• State consists of government and other elements of state;
government is the agency through which the will of the
State is formulates, expressed and carried out.
• States, not governments, are the bearers of the rights and
duties under international law;
• “Doctrine of State Continuity”
• How the State “governs” internally may be relevant in
recognition of government issues
“Permanent Population”
• How many people are required? (Liechtenstein with 34,000
in 1990 and Nauru with 14,000 people in 1999, became UN
Members. Vatican City has about less than 500 citizens and
about 800 residents. Other mini states are Micronesia,
Tonga, San Marino, Palau, and Monaco)
• Effective Nationality Theory (Nottebohm Case) and the Right
to Diplomatic Protection
“Defined Territory”
• Island of Palmas Case (Netherlands vs. US Arbtirator Max
Huber of PCIJ, 1928) on “Territorial Sovereignty”;
• See again North Sea Continental Shelf Cases on whether
definition of borders is a requirement: “sufficient
consistency”, not “accurate definition”; Cf: Effective Control
Test
• Extent of and jurisdiction over Territory:
o Modes of Acquiring over Territory
o Law of the Sea (1982 UNCLOS or UNCLOS III)
o Airspace
o Criminal jurisdiction, etc.; Extradition
Island of Palmas Case (Netherlands vs. US, Arbitrator Max Huber
of PCIJ, 1928)
Meaning of “Territorial Sovereignty”
• It refers to the right to exercise in a territory, to the exclusion
of any other state, the functions of a state. It must be open
and public. Discovery could only exist as an inchoate title,
as a claim to establish sovereignty by effective occupation.
“Government”
• Effective Control Test – sovereignty, not legitimacy,
required; but mere existence of government is not sufficient;
• See Aland Islands Questions Case, 1920 on “stable political
organization” test
• The required level of Effectiveness depends on different
conditions (see Crawford, 2006)
• However, it is argued that in case of temporary deprivation
of effective control, the state (‘failed state”) does not cease
to exist. (e.g. Congo, Rwanda and Somalia)
“Capacity to enter into relations with other states”
• Article 3, Montevideo Convention: “The political existence of
the State is independent of recognition by the other States.
Even before recognition, the State has the right to defend its
integrity and independence…”
• Also implied “independence” (legal or factual?) from foreign
control
• What is the effect of a third state’s intervention that
forments secession? Is the seceding territory’s status as
state affected?
• “Limited Capacity” to enter into international relations does
not prevent the existence of a state.
Principle of “Uti Possidetis Juris”
A general rule of international law, it states that the boundaries of
colonial territories ought to become international boundaries
 POLITICAL LAW REVIEW JD CLASS 2016-2017

when those territories attained independence unless altered by d. Ability and willingness to fulfill international
agreement. obligations
2. Tobar or Wilson Doctrine: precludes recognition of any
Developed in South America in connection with the independence of government established by revolutionary means until
states from Spain and Portugal, it was also adopted in 1964 by the constitutional reorganization by free election of
Organization of African Unity which states that “all member states representatives;
pledge themselves to respect the borders existing on their 3. Stimson Doctrine: no recognition of a government
achievement of national independence” established through external aggression. (adopted by the
League of Nations)
Secession and Statehood 4. Estrada Doctrine: If a government was established through
political upheaval, a state may not issue a declaration giving
Opinion of the Supreme Court of Canda in re: Secession of Quebec recognition to such government, but may merely accept
(1998): whatever government is in effective control without raising
the issue of recognition. Dealing or not dealing with the
government is not a judgment on the legitimacy of the said
Q: “Is there a right to self-determination under international law that
government.
would give the National Assembly, Legislature or Government of
Quebec the right to effect Quebec’s unilateral secession from
Canada?” “State Succession”

• Secession is not authorized by the Constitution of Canada; Where there is a change in legal personality of a state, “state
• International law does not specifically authorize nor prohibit succession” occurs. This involves substitution of new sovereign over a
unilateral secession; territory. This happens in cases of cession, annexation, merger,
consolidation and decolonization. It will have legal effects in treaty and
• But, states have the implied duty (erga omnes) to recognize
international obligations of the predecessor State (Cf: “Clean State
peoples’ “right to self-determination”;
Doctrine”/”tabula rasa”) [Vs. “Government Succession”]
• Right to self-determination must be exercised within the
framework of sovereign states and consistent with territorial
integrity of those states (“right to internal self- Effects of “State Succession”
determination”) vs. “Right to external self-determination”
(unilateral secession). 1. Transfer of allegiance of inhabitants
2. Political laws, automatically abrogated; non-political laws,
When “Right to external self-determination” may be exercised deemed continued unless expressly repealed or
inconsistent with domestic laws of new sovereign
3. Public property, acquired; torts liability, not acquired; new
SC of Canada:
sovereign has option to assume liability
4. Treaties of predecessor state, not binding on new sovereign
• “the international law right to self-determination only
except those dealing with local rights and affecting territory
generates, at best, a right to external self-determination in
(e.g. servitudes and boundaries)
situations of former colonies; where a people is
oppressed, as for example under foreign military
Criminal Jurisdiction:
occupation; or where a definable group is denied
meaningful access to government to pursue their
Various Principles/Theories:
political, economical, social, and cultural development”
(meaning, where the people have been denied the right to
internal self-determination) • Territorial Principle (Subjective vs. Objective)
• Nationality Principle (Active vs. Passive)
• Protective Principle (vs. Diplomatic protection)
OCJ Advisory Opinion on Kosovo (2010)
• Universality Principle (Cf: Erga Omnes Norms)
Main Question: Is the unilateral declaration of independence by the
Provisional Institutions of Self-government of Kosovo in accordance Extradition vs. Deportation
with international law?

Deportation Extradition
• Even during the 18th to early 20th centuries, state practices
1. Treaty
on secession had not resulted in international law
1. Unilateral 2. The person to be extradited
prohibiting “declarations of independence” as illegal. had been charged or
2. Does not need a treaty
• Decolonization during the second half of the 20th century 3. Destination of deportee is convicted of extraditable
developed the concept of “right to self-determination” that irrelevant offense
justified declaration of independence of peoples in non-self 3. Extraditable offense is either
governing territories. (1) listed or (2) covered by
“double or dual criminality
• The right to territorial integrity of States, a customary
principle/clause”
international law, is relevant.
• The ICJ acknowledges the development of the so-called
Basic Principles in Extradition
“remedial secession”
• The ICJ declares that “general international law contains no
• No treaty, no obligation to extradite
applicable prohibition of declarations of independence”
• Pacta Sunt Servanda applies
• Dual Purposes:
Question: Distinguish “State Succession” from “Government
o Prosecution
Succession”
o Execution
• Could not cover “political offenses”
Recognition of Government
o Cf: “Attentat Clause”
• Rule of Specialty must be followed
APPROACHES: (Note: recognition is a political question and largely • Ex post facto Law prohibition does not apply
involves discretion of the executive)
Immunity from Jurisdiction
1. Traditional: recognizing state considers:
a. Efectiveness and control
• Sovereign or State Immunity (cf: 2004 UN Convention on
b. Stability and permanence
Jurisdictional Immunities of States and their property [UN
c. Popular support
Doc A/Res/59/38]

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 POLITICAL LAW REVIEW JD CLASS 2016-2017
o Doctrine of Qualified Immunity (immunity in acts
“jure imperii” not “jure gestionis”)
o The Act of State Doctrine (judicial deference)
• Head of State and Foreign Ministers Immunity
• Diplomatic Immunity
o Immunity from jurisdiction of courts
o Other privileges and immunities
• Consular Immunity
• Immunities of International Organizations
• Waiver of Immunity
Restrictive Theory of State Immunity
• The immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state, but not
with regard to private acts or acts jure gestionis
• Immunity applies not only to the State itself but also in
respect of its property (See: UN Convention on
Jurisdictional Immunities of States and their property of
2004)
• Nature Test or Purpose test?
Note: In the Philippines, the Supreme Court had considered the
following transactions by a foreign state with private parties as acts
jure imperii: (1) the lease by a foreign government of apartment
buildings for use of its military officer; (2) the conduct of public bidding
for the repair of a wharf at a United States Naval Station; and (3) the
change of employment status of base employees; and the following
transactions as acts jure gestionis: (1) the hiring of a cook in the
recreation center, consisting of 3 restaurants, a cafeteria, a bakery, a
store, and a coffee and pastry shop at the John Hay Air Station in
Baguio City to cater to American servicemen and the general public;
and (2) the bidding for the operation of barber shops in Clark Air Base
in Angeles City.
Head of State and Diplomatic Immunity
DRC vs. Belgium (ICJ 2002)
Facts: An international arrest warrant was issued for the arrest of a
foreign minister of the Congo for crimes under international law
Issue: Do head of State immunities apply to foreign minsiters even for
international crimes?
Holding: The ICJ said that immunity for current foreign ministers is
absolute, even for international crimes – there is no exception to
head of state immunity for all violations of international law
(including jus cogens, customary international law, etc)
Scope of Diplomatic personal Inviolability
• Private Residence (whether owned or not, hotel room or
apartment)
• Papers and Correspondence
• Property (unless otherwise provided in Sec 1, Art 31)
• As witness (art 31)
• Processes (Art 31)
• Extends to members of the family (Art. 37)
• Extends to administrative and technical staff and their
member of the family in criminal jurisdiction (Art 36)
• Extends to civil and administrative jurisdiction over the
foregoing persons and to members of the service staff when
acts are intra vires.
• Does not cover jurisdiction of sending state (Art 31)
Personal and Functional Immunity of Diplomatic Officials
In terms of immunity from jurisdiction, a distinction must be drawn
between civil and criminal process.
In terms of criminal jurisdiction, diplomatic agents have total immunity
from the law of the receiving state is to declare the diplomat persona
non grata. The immunity from criminal jurisdiction applies to any
offense committed by the diplomat whether official or not. In terms of
civil jurisdiction, diplomats are immune from the civil jurisdiction of the
receiving state except in three (3) cases. The immunity of diplomats
37
extends to “arrests” and “detentions”. (See: DR of Congo vs. Belgium,
2002)
Functional Immunity of Consular Officials
As for CONSULS, however, although they enjoy more or less the
same immunities and privileges as diplomats, their immunity from
criminal and civil jursidiction extends to their official acts only.
Non-interference with Mission’s official communication
Under Article 27 of VCDR, a receiving state shall permit and protect
the free communication on behalf of the mission for all official
purposes. Such official communication shall not be interfered with.
The diplomatic bag shall not be opened or detained.
The use of sniffer dogs and external examination of the bag is,
however, permitted customarily per ILC Draft Articles. A reasonable
suspicion that the bag contains illegal article will also allow the
authorities to have the bag opened in the presence of a representative
of the sending state. The bag, however, must bear visible external
marks of its character and contain only diplomatic documents or
official articles. (What about electronic examinations? See Art 28 of
the 1989 ILC Draft Articles on Diplomatic Courier and Diplomatic Bag:
“directly or indirectly”)
Legal Status of Embassies and Consulates
Basic Rule: INVIOLABILITY OF PREMISES
• Vienna Convention on Diplomatic Relations, Article 22:
A. Duty of the receiving state to refrain from entering
the premises without the consent of the head of
mission
B. Duty of the receiving State to protect the
premises against any intrusion, damage,
disturbance, etc.
• States can waive their inviolability
o Waiver must be express
• Theories behind inviolability of embassies and consulates:
“extraterritoriality”, “representational” and “functional
necessity”
Article 22 sets out the negative (not to enter) and positive (to protect)
obligations of the receiving state, including immunity from processes
(search, execution, attachment, etc.)
• Inviolability extends (a) even in cases of armed conflict [Art
45], (b) to archives and documents of the mission [Art 24[,
(c) and to the ambassador’s residence, papers and
correspondence [Art 30]
Q: is this “inviolability” absolute?
Inviolability of Premises of Foreign Diplomatic Mission
The premises of a foreign diplomatic mission are inviolable and no
person, even a member of the government of the receiving state, may
enter the premises without the authority of the mission. The receiving
state has in fact the duty to protect the mission against intrusion or
damage and to prevent disturbances of the peace of the mission or
impairment of its dignity. (See Art 22 of the Vienna Convention on
Diplomatic Relations [VCDR])
See: US Diplomatic and Consular Staff in Tehran Case (US vs. Iran,
1980)
Underhill vs. Hernandez, 168 US 250 (1897) pg. 619:
• “Every sovereign State is bound to respect the
independence of every other sovereign State, and the
courts of one country will not sit in judgment on the acts of
the government of another done within its own territory.
Redress of grievances by reason of such acts must be
obtained through the means open to be availed of by
sovereign powers as between themselves.”
• Distinction must, however, be made between:
 POLITICAL LAW REVIEW JD CLASS 2016-2017

• Domestic Jurisdiction over Head of State VS. Reservation:

• Jurisdiction of International Criminal Court
International crimes
• See: DRC vs. Belgium (Arrest Warrant Case, 2002)
Arrest Warrant Case (DRC vs. Belgium, 2002)
“S1. In international law it is firmly established that, as also diplomatic
and consular agents, certain holders of high-ranking office in a State,
such as the Head of State, Head of Government and Minister of
Foreign Affairs, enjoy immunities from jurisdiction in other States,
both civil and criminal. For the purposes of the present case, it is only
the immunity from criminal jurisdiction and the inviolability of an
incumbent Minister of Foreign Affairs that fall for the Court to
consider…”
for
Article (2)(1)(d)VCLT:
• “a unilateral statement…made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect
of certain provisions of the treaty in their application to the
State.”
• 2011 ILC Guide to Practice on Reservations to Treaties:
o “made by a State or an international
organization…or by a State when making
notification of succession to a treaty…”
Questions on Reservation:

CAPACITY TO ENTER INTO treaties A. What is Reservation?

B. How is this distinguished from “declaration” or
• States have inherent capacity to enter into treates (Art 6. “understanding”?
VCLT) {this is CIL} C. When is reservation allowed? Not allowed?
• Since states are legal persons, they are represented by their D. Does reservation require the acceptance of the other
agents (individuals). So, who is permitted to represent the parties?
state? E. Can a reserving State be regarded as being a party to the
o He must have “Full Powers” (Art 7) [See Art 2 (c) treaty while still maintaining its reservation, if the reservation
for definition of “full powers” {pleins pouvoirs}) is objected to by one or more of the parties to the treaty but
o Exceptions: not by others?
§ Art 7 (1) (b) F. If the answer to the above question is YES, what is the
§ Art 7 (2) effect of the reservation as between the reserving State
• See Art. 8 if person is unauthorized. and:
a. The parties which object to the reservation?
TREATIES b. Those which accept it?

• Read: 1969 Vienna Convention on the Law of Treaties What are “secret treaties”? Are secret treaties valid and binding
(VCLT) [entered into force on Jan 27, 1980] under international law?
• VCLT applies only to treaties after entry into force (Article 4)
• Before the VCLT, the “law of treaties” had been customary Registration
international law. The VCLT is both a codification work of
CIL and a progressive development of international law Article 102 (1) of the UN Charter: “every treaty entered into by any
• The travaux preparatoires was carried out by the Member of the UN after the Charter comes into force shall as soon as
international Law Commission (ILC), so its commentary is possible be registered with the Secretariat and published by it/”
one of the best sources of interpretation of the VCLT
• A treaty per VCLT is “an international agreement Effect of non-registration: Art 102 (2) UN charter
concluded between States in written form and governed
by international law, whether embodied in a single Interpretation of Treaties
instrument or in two or more related instruments, and
whatever its particular designation.” Basic Rules:
• The VCLT is in itself a treaty.
A. Text of the treaty (ordinary meaning +context +object and
Legal Obligations before Treaty enters into Force purpose of the treaty)
B. Intent of the parties
Article 18: C. Object and Purpose of the Treaty (Teleological, Principle of
Effectiveness)
A State is obliged to refrain from acts which would defeat the object
and purpose of a treaty when: (a) it has signed the treaty subject to Means of Interpretation:
ratification, acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty; or (b) it has a. Preparatory works (travaux preparatoires)
expressed its consent to be bound by the treaty, pnding the entry into b. Circumstances of conclusion (Contemporaneity)
force of the treaty and provided that such entry into force Is not
unduly delayed.

Consent to be bound END

Article 11: “Consent of the State to be bound by a treaty may be NOTE: Atty Largo did not finish discussing PIL so there are still
expressed by signature (Art 12), exchange or instruments (Art 13) several topics not included herein.
constituting a treaty, ratification, acceptance, approval (Art 14) or
accession (Art 14) or by any other means if so agreed.

• Ratification occurs only when instruments or ratification are

exchanged between the contracting states or are deposited
with the depositary (Arts 2 (1)(b) and 16)
• By Accession, a third state which did not take part in the
negotiation, consents to be bound by the treaty and ratifies
it.

Q: Is the consenting State now bound by the terms or substantive

provisions of the treaty?

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