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BAR REVIEWER AND NOTES IN ALLIED POLITICAL LAWS1

AND PUBLIC INTERNATIONAL LAW

By:

Daryl Bretch M. Largo, AB PoSc, LLB, LLM


University of San Carlos
School of Law and Governance
College of Law
Cebu City

2018 Revised Edition

Local Government Law (Public Corporation)

Public Corporation; Municipal Corporation; De Facto Municipal Corporation

1. The Boy Scout of the Philippines (BSP) still remains an instrumentality of the national
government. It is a public corporation (this is declared in C.A. 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 viable to justify its existence under a special law. Hence, it is
subject to the auditing power of COA. [Note of J. Carpio’s dissent that the “Purpose Test” alone cannot
be considered as a safe guide in determining whether a corporation is public or not. For him, it is
“Relational Test”, or the totality of the relation of the corporation to the State, i.e. whether it is created by
the State to make it as its own agency or instrumentality to help it in carrying out governmental functions
such as provinces, cities and barangays.]. (BSP vs. COA [2011]).

Now, the BSP and the GSP have been classified as a “sui generis” GOCC by the Governance
Commission through its Memorandum Order No. 2013-42. The issue now is whether this
administrative Memorandum will alter the character of BSP as pronounced in BSP vs. COA
above.

2. Kinds of defective “municipal corporations”:

a. Corporation De facto – a corporation de facto exists where the consent of the state is
implied rather than expressed, by the general consent to that kind of corporation, even though
the conditions of incorporation are not substantially complied with. There are four elements of a
de facto municipal corporation, namely: a. valid law authorizing incorporation, b. attempt in
good faith to organize it, c. colorable compliance with law, d. assumption of corporate powers
(McQuillin).

b. Corporation by prescription – a corporation by prescription exists under the principles


of common law, “where a body of men have been for a long time in the exercise of corporate
powers, a presumption arises of an ancient charter, granted to their predecessors, making
the exercise of such powers by them lawful and rightful, a lost grant or charter from the crown
being presumed”. Teodorico C. Martin, Commentaries and Jurisprudence on Philippine
Commercial Law (1986).

c. Corporation by estoppel – corporation by prescription is stated by Fletcher in this wise:


“While as against the state a corporation cannot be created by the mere agreement or other act or

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Local Government Law (Public Corporation), Administrative Law, Law of Public Officers and Election Laws.
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omission of private persons, yet as between private litigants they may, by their agreements,
admissions, or conduct, place themselves where they would not be permitted to deny the fact of
the existence of the corporation” (Fletcher).

The Doctrine of De Facto Municipal Corporation states that “where there is authority in law for a
municipal corporation, the organization of the people of a given territory as such a corporation
under a color of delegated authority, followed by a user in good faith of the governmental
powers incidental thereto, will be recognized by the law as a municipal corporation de facto,
wherever through the failure to comply with the constitutional or statutory requirements, the
corporation cannot be said to exist de jure.” (C.W. Tooke, “De Facto Municipal Corporations under
Unconstitutional Statutes”, 37 Yale Law Journal 935 (1928))

A de facto municipal corporation can only be challenged by the State through the direct action of
Quo Warranto. However, where there is even no de facto municipal corporation to speak of, a
collateral attack on the supposed corporation’s existence is permissible. “Doctrine of
Operative Fact” is applicable in invalidly created and de facto local government unit. (Mun. of
Malabang vs. Benito [1969]). Note that in this case of Malabang vs. Benito, the Municipality of
Balabagan was not considered a de facto municipal corporation because the E.O. that created it
was declared void by the Supreme Court and that it had also existed for only a short period of
time. Applying the “Doctrine of Operative Fact”, however, the acts earlier performed by the
Municipality of Balabagan was honored and given effects.

Local Autonomy; Devolution; Fiscal Autonomy

3. 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, policy-
setting for the entire country still lies in the President and Congress. (Pimentel v. Aguirre, G.R. No.
132988, July 19, 2000)

4. Section 17 (e) of the LGC of 1991 which mandates that “national agencies of offices concerned
shall devolve to local government units the responsibility for the provision of basic services and
facilities….. within six (6) months after the effectivity of this Code” should not be interpreted to
mean that no devolution shall ever take place after the lapse of the six-month period. The more
reasonable understanding of the six-month period is that the framers of the law provided for the
period to prompt the national government to speedily devolve the existing services to the LGUs.
However, it was not intended as a prescriptive period, as to absolutely prohibit the national
government from devolving services beyond the period. In any case, the LGC of 1991 mandates
an interpretation that is in favor of devolution. (see Mangune v. Ermita [September 27, 2016])

5. Local Fiscal Autonomy: Local governments have the power to create their own sources of
revenue in addition to their equitable share in the national taxes released by the national
government, as well as the power to allocate their resources in accordance with their own
priorities, although 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])

Under Art. X, Sec. 6 of the 1987 Constitution, local government units shall have a just share, as
determined by law, in the national taxes which shall be automatically released to them. Thus, Sec. 4 of
A. O. No. 372 which mandates that “pending the assessment and evaluation by the Development
Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to
10% of the internal revenue allotment to local government units shall be withheld” contravenes
the mandate in Section 6, Article X of the 1987 Constitution and Art. 286 of the LGC of 1991 that
the share of each local government unit in the national taxes (IRA) shall be “automatically
released” to them and shall “not be subject to any lien or holdback that may be imposed by the
National Government for whatever purpose”. (Pimentel v. Aguirre [2000])

Powers of local government units

6. There are four (4) general kinds of powers of local government units: a) those that are expressly
granted to them, b) those that are implied from those that are granted to them, c) those that are necessary,
appropriate, or incidental for their efficient and effective governance, and d) those that are essential to the
promotion of the general welfare of their inhabitants. (Aquilino Pimentel, The Local Government Code of
1991: The Key to National Development (1993), p. 15.
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Creation & Conversion (Downgrading and Upgrading) of LGU; Plebiscite; Land Area
requirement for Province

7. The recent League of Cities case (Feb. 15, 2011; April 12, 2011; June 28, 2011) granted the Motion for
Reconsideration of the 16 “Cities”, reversed and set aside the 24 August 2010 Resolution of SC
and decided on the basis of SC’s reasoning in the 21 December 2009 ruling that Congress’ intent to
exempt the 16 Cities from the operation of R.A. 9009 should be respected. It should be noted that the
Supreme Court considered as significant the fact that when the 16 cityhood bills were introduced
in Congress, R.A. 9009 (which increased the income requirement to P100 M locally generated
income) was not yet passed. At the time they were passed in Congress, these bills were still
following the P2o M income requirement under the Local Government Code of 1991.

8. A plebiscite for creating a new province should include the participation of the residents of the
mother province for the plebiscite to conform to the constitutional requirement that the plebiscite
should be conducted in the political units “directed affected”. (Tan vs. Comelec [1986])

In Miranda vs. Aguirre (1999), the Supreme Court applied the requirement of plebiscite in case of
conversion of an independent component city into a mere component city of a province. This case
involved the downgrading of Santiago City from an independent component city to a mere
component and the issue there was whether or not such conversion required the approval of the
people of Santiago City. The Supreme Court ruled that the downgrading of Santiago City falls
within the meaning of creation, division, merger, abolition or substantial alteration of boundaries
of municipalities per Section 10, Article X of the 1987 Constitution.

While conversion to a Highly Urbanized City (HUC) is not explicitly provided in Sec. 10, Art. X
of the Constitution, x x x the conversion of a component city into an HUC is substantial alteration
of boundaries. As the phrase implies, "substantial alteration of boundaries" involves and
necessarily entails a change in the geographical configuration of a local government unit or units.
The phrase "boundaries" should not be limited to the mere physical one, referring to the metes
and bounds of the LGU, but also to its political boundaries (the new HUC will now be beyond
the supervision of the province). Hence, the mother province to which the component city
originally belonged must participate in the plebiscite for its conversion into an HUC for its
(province’s) boundary is substantially altered. (see Umali vs. Comelec [2014])

9. The 2010 Navarro vs. Ermita case was reversed in 2011 (April 12). The Supreme Court ruled that
Congress intended to apply the exemption on land area requirements enjoyed by municipalities and cities
(which have islands as territories) to the Province (e.g. Province of Dinagat). In effect, even if not so
provided in the LGC of 1991, where the territory of a province consists or an island or islands, it
is not required to comply with the land area requirement of 2,000 sq. km.

10. The requisites for Creation of Province are: (a) Twenty million pesos (P20,000,000.00) and either
of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square
kilometers, or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants.
Thus, population requirement is not an indispensable requirement, but merely an alternative addition to
the indispensable income requirement. Consequently, the “250,000 inhabitants” requirements for the
creation of a legislative district does not apply to provinces. This means that a province with a
population of less than 250,000 inhabitants (assuming it complies with the income and land area
requirements for the creation of a province) is still entitled to a legislative district. (see Aquino III
vs. Comelec [2010])

Political Subdivisions

11. The concept of an “associated state” is not sanctioned by the Constitution. Under Art. X, the
following are the only recognized “political subdivisions” in the Philippines: Provinces, Cities,
Municipalities, Barangays and the Autonomous Regions of Muslim Mindanao and the
Cordilleras. (Province of North Cotabato vs. GRP [2008])

In Metro Manila Development Authority (MMDA) vs. Bel-Air Village (2000), the Supreme Court
found MMDA to be not a political subdivision and not even a special metropolitan political
subdivision because there was no plebiscite when it was created. Further, the President exercises
not just supervision but control over it. MMDA has purely administrative function. Not being a
political subdivision, it cannot exercise political powers such as police and expropriation powers.

The Cordillera Administrative Region (CAR) is not a public corporation or a territorial and political
subdivision. It does not have a separate juridical personality, unlike provinces, cities and
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municipalities. Neither is it vested with the powers that are normally granted to public
corporations, e.g. the power to sue and be sued, the power to own and dispose of property, the
power to create its own sources of revenue, etc. (Cordillera Broad Coalition vs. COA [1990])

Income requirement

12. In the case of conversion of a municipality into a city or a cluster of barangays to be formed into a
new city, Republic Act No. 9009, enacted on June 30, 2001 and amending Sec. 450 of the Code,
Internal Revenue Allotments (IRA) are no longer included in the computation of the annual
income for purposes of complying with the income requirement. “Income” under R.A. 9009 refers
to “locally generated” income.

Division, Merger, Abolition of LGUs and Substantial Alteration of Boundaries

13. Division or Merger of local government unit should not reduce the (1) land area, population, and
income to less than the minimum requirements under the Code, and (2) income classification of
the original LGU affected. (Sec. 8, LGC).

14. The ground for abolition of local government unit is when its income, population, or land area
has been irreversibly reduced to less than the minimum standards as certified by the national
agencies concerned. (Sec. 9, LGC)

Under the LGC of 1991, the abolition of a local government unit (LGU) may be done by Congress
in the case of a province, city, municipality, or any other political subdivision. In the case of a
barangay, except in Metropolitan Manila area and in cultural communities, it may be done by the
Sangguniang Panlalawigan or Sangguniang Panglungsod concerned subject to the mandatory
requirement of a plebiscite conducted for the purpose in the political units affected. Under the
Omnibus Election Code, every barangay is entitled to at least one (1) precinct. Thus, the act of the
Comelec in delisting a precinct from the list of precincts for being a “ghost precinct” would
tantamount to an abolition of a barangay which the Comelec cannot legally do. (Sarangani
vs. Comelec [2000])

15. As the phrase implies, 'substantial alteration of boundaries' involves and necessarily entails a
change in the geographical configuration of a local government unit or units. However, the
phrase 'boundaries' should not be limited to the mere physical one, referring to the metes and
bounds of the LGU, but also to its political boundaries. It also connotes a modification of the
demarcation lines between political subdivisions, where the LGU's exercise of corporate power
ends and that of the other begins. Hence, a Resolution of a City Council mandating that the Real
Property Tax Declaration of a taxpayer be transferred from one Barangay to another, effectively
alters the boundaries of the barangays concerned, which is not permitted unless there be a
law/ordinance and a plebiscite as required by the LGC of 1991. (City of Parañaque v. Katipunan ng
mga Mamamayan ng Bagong Parañaque, Inc. [September 7, 2016]

Beginning of Corporate Existence

16. Under the LGC of 1991, the corporate existence of a local government unit begins: (1) As fixed by
the law or ordinance creating the LGU, or (2) Election and Qualifications of Chief Executive and
majority of Sanggunian members (when not fixed by law or ordinance). (Sec. 14, LGC). Note: The
Mejia case (1948) which ruled that LGU begins to exist upon the “effectivity of the law” creating it
is not anymore true.

President’s General Supervision Power

17. The President shall exercise “general supervision” over local government units, under Sec. 4
(Constitution) and Sec. 25 (LGC) and autonomous regions under Sec. 16 (Constitution). “General
Supervision” essentially means that the President shall ensure “that laws are faithfully executed”
and “that LGUs’ acts are within the scope of their prescribed powers and functions”.

Sec. 187 authorizes the Sec. of Justice to review only the constitutionality or legality of the tax
ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or
modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for
the judgment of the LGU that enacted the measure. He did not say that in his judgment it was a
bad law. What he found only was that it was illegal…..that was not an act of control but of
supervision. (Drilon vs. Lim [1994])
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The DILG Secretary did not take over control of the powers of the ARMM. After law enforcement
agents took the Governor of ARMM into custody for alleged complicity in the Maguindanao
massacre, the ARMM Vice-Governor, Adiong, assumed the vacated post on December 10, 2009
pursuant to the rule on succession found in Article VII, Section 12, of RA 9054. In turn, Acting
Governor Adiong named the then Speaker of the ARMM Regional Assembly, Sahali-Generale,
Acting ARMM Vice-Governor. The DILG Secretary did not take over the administration or
operations of the ARMM. (Ampatuan vs. Puno [2011])

Review of Ordinance of Component LGU

18. The grounds for reviewing ordinance by a component unit of a Sanggunian are as follows: If by
Sangguniang Panlalawigan: 1. Ultra Vires (Sec. 56 (c), LGC); If by Sangguniang Panlungsod/Bayan: 1.
Not consistent with law and 2. Not consistent with Municipal or City Ordinances (Sec. 57, LGC).
The Veto Power of the Local Chief Executive, on the other hand, is limited to the following
grounds: 1. Ultra Vires and 2. Prejudicial to the public welfare. (Sec. 55, LGC)

Prior Consultation Rule for National Program Implementation

19. Under the Local Government Code, two requisites must be met before a national project that
affects the environmental and ecological balance of local communities can be implemented: prior
consultation with the affected local communities, and prior approval of the project by the
appropriate sanggunian. Absent either of these mandatory requirements, the project's
implementation is illegal. (Province of Rizal vs. Executive Secretary [2005])

The requirement of Prior Consultations found in Sections 2 (c) and 27 of the LGC apply only to
national programs and/or projects that are to be implemented in a particular local community.
For example, since Lotto is neither a program nor a project of the national government, but of a
charitable institution, the PCSO, the provision on prior consultation will not apply. It must
likewise be emphasized that the projects and programs mentioned in Section 27 should be
interpreted to mean projects and programs whose effects are among those enumerated in Section
26 and 27, to wit, 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- land, or forest
cover; (5) may eradicate certain animal or plant 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. (Lina, Jr. vs. Paño [2001]; Province of Rizal vs. Executive Secretary [2005])

The issuance of the ECC does not exempt the project from compliance with other relevant
laws. The LGC, in particular, requires the government agency authorizing the project to
conduct local consultation and secure prior consent for ecologically impactful project. (Braga v.
Abaya [September 13, 2016])

The duty to consult the concerned local government units and the stakeholders belongs to the
national government agency or GOCC authorizing or involved in the planning and
implementation of the project — not the private sector proponent. In this case, this refers to the
DOTC. The LGC does not prohibit the agency from acting through a medium such as the
project proponent. (Braga v. Abaya [September 13, 2016])

Validity of Ordinances; Local Police Power; Zoning Ordinance; Nuisance

20. To be considered as a valid police power measure, an ordinance must pass a two-pronged test: the
formal (i.e., whether the ordinance is enacted within the corporate powers of the local government
unit, and whether it is passed in accordance with the procedure prescribed by law); and the
substantive (i.e., involving inherent merit, like the conformity of the ordinance with the limitations
under the Constitution and the statutes, as well as with the requirements of fairness and reason,
and its consistency with public policy). The formalities in enacting an ordinance are laid down in
Section 53 and Section 54 of The Local Government Code. (Legaspi vs. City of Cebu [2013; Mosqueda
v. Pilipino Banana Growers & Exporters Association, Inc. [August 16, 2016])

To be substantively valid, municipal ordinances: (1) must not contravene the Constitution or any
statute, (2) must not be unfair or oppressive, (3) must not be partial or discriminatory, (4) must not
prohibit but may regulate trade, (5) must be general and consistent with public policy, and (6) must not be
unreasonable. There must be “lawful subject” and “lawful means”.

21. Zoning Ordinance is a police measure. It prevails over contractual obligations. Therefore, parties to a
contract who may be affected by zoning ordinances cannot invoke the constitutional right against
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“impairment of obligations and contracts” because in constitutional law, police power prevails
over the “non-impairment clause”. (Ortigas and Company, Limited Partnership vs. Feati Bank and
Trust Company, 94 SCRA 533)

22. As a result of the zoning, the continued operation of the businesses of the oil companies in their
present location will no longer be permitted. The power to establish zones for industrial,
commercial and residential uses is derived from the police power itself and is exercised for the
protection and benefit of the residents of a locality… The depot is perceived, rightly or wrongly,
as a representation of western interests which means that it is a terrorist target. As long as it there
is such a target in their midst, the residents of Manila are not safe. It therefore became necessary
to remove these terminals to dissipate the threat.. The people’s Right to life prevails over
petroleum companies Right to Property. (Social Justice Society v. Atienza, Jr. [2008]; see also Social
Justice Society Officers vs. Lim [2014])

23. An ordinance that prohibits PAGCOR from operating a lawful game of chance violates
Presidential Decree No. 1869, which authorizes the PAGCOR to operate casinos within the
territorial jurisdiction of the Philippines. The power of a local government unit to suppress gambling
and prohibited games of chance excludes of chance permitted by law. Implied repeals are not favored.
(Magtajas vs. Pryce Properties Corporation, Inc., 234 SCRA 255)

In City of Manila v. Laguio, Jr. (2005), the Court nullified a city ordinance barring the operation of
motels and inns, among other establishments, within the Ermita-Malate area. The petition at bar
assails a similarly-motivated city ordinance that prohibits those same establishments from
offering short-time admission, as well as pro-rated or “wash up” rates for such abbreviated stays.
(White Light Corporation vs. City of Manila [2009]).

24. The exercise of the power to issue business permit is a delegated police power and hence,
discretionary in nature. A mayor cannot, therefore, be compelled by mandamus to issue a
business permit. (Roble Arrastre, Inc. v. Hon. Villaflor [2006]; Rimando vs. Naguilian Emission Testing
Center, Inc. [2012]). Note, however, that under the Anti-Red Tape Act of 2007 (R.A. No. 9485)
particularly in Section 9 thereof, the permit, license or authority shall be automatically extended
when its application and/or request for renewal is not acted upon by the government agency
concerned within the prescribed period of 5 days (for simple transaction) or 10 days (for complex
transaction) until a decision or resolution is rendered on the application or renewal.

25. Under Section 447(a)(3)(i) of R.A. No. 7160, the Sangguniang Panglungsod is empowered to enact
ordinances declaring, preventing or abating noise and other forms of nuisance. It bears stressing,
however, that the Sanggunian cannot declare a particular thing as a nuisance per se and order its
condemnation. It does not have the power to find, as a fact, that a particular thing is a nuisance
when such thing is not a nuisance per se; nor can it authorize the extrajudicial condemnation and
destruction of that as a nuisance which in its nature, situation or use is not such. Those things
must be determined and resolved in the ordinary courts of law. If a thing be in fact, a nuisance
due to the manner of its operation, that question cannot be determined by a mere resolution of
the Sangguniang Bayan. (Note: Rule III, Section IV of PAB Resolution 1-C, Series of 1997 as
amended, which categorically states that "Except where such would constitute a pollution case,
local government units shall have the power to abate a nuisance within their respective areas….”)
(AC Enterprises, Inc. vs. Frabelle Properties Corporation [2006])

Local Eminent Domain

26. The specific requirements for local eminent domain are:

a. It is exercised through its chief executive and acting pursuant to an ordinance;


b. It is for public use, or purpose, or welfare for the benefit of the poor and the landless;
c. Payment of just compensation, pursuant to the provisions of the Constitution and
pertinent laws; and
d. A valid and definite offer has been previously made to the owner, and such offer was not
accepted.

Note: In case of urban development, e.g. housing projects, by the LGU, Sections 9 and 10 of R.A.
7279 provide for additional requirements.

Where the taking of private property is done for the benefit of a small community which seeks to
have its own sports and recreational facility, notwithstanding that there is such a recreational
facility only a short distance away, such taking cannot be considered to be for public use. The
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Court defines what constitutes a genuine necessity for public use. (De la Paz Masikip vs. City of
Pasig [2006])

27. 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. (Republic vs. Lim [2005])

28. 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 of 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 benefit another private
person. (Anunciacion Vda. De Ouano vs. Republic [2011])

Reversing “Fery vs. Mun. 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 petition 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 desires to reacquire the
same.” (MCIAA vs. Lozada, Sr. [2010])

29. Prohibition is generally not proper in Eminent Domain. The interest of the affected landowner is
thus made subordinate to the power of the State. Once the State decides to exercise its power of
eminent domain, the power of judicial review becomes limited in scope, and the courts will be
left to determine the appropriate amount of just compensation to be paid to the affected
landowners. Only when the landowners are not given their just compensation for the taking of
their property or when there has been no agreement on the amount of just compensation may the
remedy of prohibition become available. (Sps. Yusay vs. CA [2011])

30. 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 substance in the
proper court and (2) deposit with the said court at least 15% of the property's fair market value
based on its current tax declaration. The law does not make the determination of a public
purpose a condition precedent to the issuance of a writ of possession. (Francia vs. Meycauayan
[2008])

Local Taxation

31. MIAA is exempt from real property taxation by the local government because, first, MIAA is not
a government-owned or controlled corporation but an instrumentality of the National
Government and thus exempt from local taxation and second, the real properties of MIAA are
owned by the Republic of the Philippines and thus exempt from real estate tax. (Manila
International Airport Authority vs. CA [2006])

Section 133 of the Code limits the grant to local governments of the power to tax, and not merely
the exercise of a delegated power to tax. Section 133 states that the taxing powers of local
governments "shall not extend to the levy" of any kind of tax on the national government, its
agencies and instrumentalities. (Ibid., See also Republic vs. Philippine Reclamation Authority (PRA)
[2012])

Closure of roads, alley, park or square

32. The closure of a road, alley, park or square presupposes an exercise of police power. Hence, for
any loss or inconvenience caused to a property owner, is a “damnum absque injuria” (literally
“damage without injury”), hence, no compensation. (See Cabrera vs. CA [1991])

33. To convert a barrio road into patrimonial property, the law requires the LGU to enact an
ordinance, approved by at least two-thirds (2/3) of the Sanggunian members, permanently
closing the road. A resolution will not suffice. (Alolino v. Flores [April 4, 2016])

Validity of Municipal Contracts

34. Requisites for Validity of Contracts entered into by LGUs:

A. The local government unit must have the power to enter into the particular contract;
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B. Pursuant to Section 22(c) of the Local Government Code, there must be a 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 Secs. 46 and 47, Chapter 8, Subtitle B, Book V, 1987 Admin. Code, if the
contract involves the expenditure of public funds, there should be an 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;

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 or implied.

An act which is outside of the municipality's jurisdiction is considered as a void ultra vires act,
while an act attended only by an irregularity but remains within the municipality's power is
considered as an ultra vires act subject to ratification and/or validation. 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 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 [2013])

35. The prior authorization for the local chief executive to enter into contracts on behalf of the
local government unit may be in the form of an appropriation ordinance passed for the year
which specifically covers the project, cost, or contract to be entered into by the local government
unit. The LGC requires the local chief executive to secure prior authorization from the
sanggunian before he can enter into contracts on behalf of the LGU. A separate prior
authorization is no longer required if the specific projects are covered by appropriations of the
LGU. The appropriation ordinance passed by the sanggunian is the local chief executive's
authority to enter into a contract implementing the project. As required in Quisumbing Case,
the local chief executive must inquire if the provisions in the appropriation ordinance
specifically cover the expense to be incurred or the contract to be entered into. If the project or
program is identified in the appropriation ordinance in sufficient detail, then there is no more
need to obtain a separate or additional authority from the sanggunian.In such case, the project
and the cost are already identified and approved by the sanggunian through the appropriation
ordinance. (See: Quisumbing v. Garcia [2008]; Verceles, Jr. v. COA [September 13, 2016])

Municipal Liability; Personal Liability of Officials

36. The LGU is considered as a private person liable ex contractu. But, the rule applies only when the
contract is within the authority of the LGU (intra vires), otherwise, if LGU has no authority (ultra
vires), it cannot be held liable ex contractu because a void contract cannot be cured, not even by
the application of the Doctrine of Estoppel. Doctrine of Estoppel will not apply to void contracts
as when the LGU already received benefits because it will only validate an otherwise void
contract.

The prevailing rule in the law of municipal corporations is that a municipality is not liable for the
torts committed by its regular employees in the discharge of governmental functions. The
municipality is answerable only when it is acting in a proprietary capacity. (San Fernando v.
Firme, 195 SCRA 692.). However, under Section 24 of the Local Government Code, local
government units and their officials are not exempt from liability for death or injury to persons or
damage to property.

Jurisprudence teaches that for liability to arise under Article 2189 of the Civil Code, ownership of
the roads, streets, bridges, public buildings and other public works, is not a controlling factor, it
being sufficient that a province, city or municipality has control or supervision thereof.
(Municipality of San Juan, Metro Manila vs. CA, G.R. No. 121920 [2005])

The general rule is that public officials can be held personally accountable for acts claimed to
have been performed in connection with official duties where they have acted ultra vires or
where there is a showing of bad faith. (Chavez vs. SB [1991])
9

While the Subject Loans cannot bind the Municipality for being ultra vires, the officers who
authorized the passage of the Subject Resolutions are personally liable. Case law states that public
officials can be held personally accountable for acts claimed to have been performed in
connection with official duties where they have acted ultra vires. (Land Bank vs. Cacayuran [2013])

Enforcement of Monetary Judgment against LGUs

37. One of the available remedies to enforce favorable monetary judgment against a local
government unit is to levy on the patrimonial properties of the judgment local government unit.
Property which is patrimonial and which is held by a municipality in its proprietary capacity as
treated by the great weight of authority as the private asset of the town and may be levied upon
and sold under an ordinary execution.” (Municipality of Paoay vs. Manaois, 86 Phil. 629)

But, if the local government does not have patrimonial properties, the remedy of the judgment
creditor is to file a petition for mandamus to compel it to appropriate money to satisfy the
judgment. “When a municipality fails or refuses, without justifiable reason, to effect payment of a
final money judgment rendered against it, the claimant may avail of the remedy of mandamus in
order to compel the enactment and approval of the necessary appropriation ordinance, and the
corresponding disbursement of municipal funds therefore.” (Municipality of Makati vs. Court of
Appeals, 190 SCRA 206)

As his other option, he can file the money claim with the COA.

However, the money of a local government unit in the bank cannot be garnished if it came from
public funds. As held in Municipality of Makati vs. Court o Appeals, 190 SCRA 206, 212, public
funds are exempted from garnishment.

Succession in Sanggunian

38. The “last vacancy” in the Sanggunian refers to that created by the elevation of the member
formerly occupying the next higher in rank which in turn also had become vacant by any of the
causes already enumerated, and the term “last vacancy” is thus used in Section 45 (b), Local
Government Code, to differentiate it from the other vacancy previously created....The reason
behind the right given to a political party to nominate a replacement where a permanent vacancy
occurs in the Sanggunian is to maintain the party representation as willed by the people in the
election. (Navarro vs. Court of Appeals, 355 SCRA 672)

39. The conditions for the rule of succession under Section 45 of the LGC to apply are: 1. The
appointee shall come from the same political party as that of the Sanggunian member who
caused the vacancy; 2. The appointee must have a nomination and a Certificate of Membership
(bona fide membership) from the highest official of the political party concerned. (Damasen vs.
Tumamao [2010])

40. The rule on succession in Section 44 of the Local Government Code cannot apply in instances
when a de facto officer is ousted from office and the de jure officer takes over. The ouster of a de
facto officer cannot create a permanent vacancy as contemplated in the Local Government Code.
There is no vacancy to speak of as the de jure officer, the rightful winner in the elections, has the
legal right to assume the position. (Svetlana Jalosjos vs. Comelec [2013])

Possible Problem:

X, Y and Z were the candidates for Mayor in Municipality of A. Y had earlier


filed a petition for the cancellation of X’s certificate of candidacy on the ground that X
failed to comply with the 6-month residency requirement. During the election, and while
the disqualification case was still pending, X received the highest number of votes
followed by Y. Thereafter, the Comelec disqualified X. W, the elected Vice-Mayor,
insisted that he should become the Mayor. Should W be allowed to assume the office of
the Mayor? (Note: Because the ground for disqualification affects eligibility of candidate,
the disqualified candidate shall be deemed not a candidate at all, hence, the “Rejection of
the Second Placer Rule” will not apply. X here is a de facto officer while Y, the de jure
officer, will be declared the true winner.) (See also Dimapilis vs. Comelec [2017] where the
candidate was earlier found administratively guilty of grave misconduct and was removed from
office as penalty with the accessory penalty of perpetual disqualification to hold public office under
Civil Service Law.)
10

Disqualification of Local Elective Officials; Effects of Probation

41. The phrase “within two (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 placing of the comma (,) in the
provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code.
The Court’s declaration in Dela Torre case on the effect of probation on Sec. 40(a) of the Local
Government Code, ought to be considered an obiter in view of the fact that Dela Torre was not
even entitled to probation because he appealed his conviction to the Regional Trial Court which,
however, affirmed his conviction. Thus, those who have not served their sentence by reason of
the grant of probation (which should not be equated with service of sentence) should not be
disqualified from running for a local elective office because the two (2)-year period of ineligibility
under Sec. 40(a) of the Local Government Code does not even begin to run. (Moreno vs. Comelec
[2006])

Sec. 40 of LGC (Disqualifications) and Perpetual Disqualification in the RPC

42. While Section 40 (a) of the LGC allows a prior convict to run for local elective office after the
lapse of two (2) years from the time he serves his sentence, the said provision should not be
deemed to cover cases wherein the law imposes a penalty, either as principal or accessory, which
has the effect of disqualifying the convict to run for elective office. (Jalosjos vs. Comelec, [2013]

43. The disqualification of “removal from office as a result of an administrative case” shall apply
only to those removed from office during the effectivity of the LGC of 1991 and shall apply as
well to any official, whether elective or appointive.

44. The disqualification of “dual citizenship” found in Sec. 40 of LGC shall be construed as “dual
allegiance”. Having dual citizenship may be involuntary on the part of the child. It is dual
allegiance that is declared by the Constitution as inimical to the national interest and shall be
dealt with by law. (Manzano vs. Mercado [1996])

45. A candidate who had availed of R.A. 9225 (Reacquisition and Retention of Citizenship Act of
2003) but had been using his US passport after renouncing his American citizenship, is deemed to
have recanted the same Oath of Renunciation he took. Section 40 (d) of the Local Government
Code applies to his situation. He is disqualified not only from holding the public office but even
from becoming a candidate. His 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 to take the oath of
renunciation as the mere filing of the certificate of candidacy already carries with it an implied
renunciation of foreign citizenship. Dual citizens by naturalization, on the other hand, are
required to take 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. (see
Maquiling vs. Comelec [2013])

46. In Faypon, a person who was out of his domicile of origin to pursue studies, engage in business,
or practice vocation was not considered to have abandoned his domicile of origin. But in Coquilla,
naturalization in foreign country results in abandonment. In Caasi, becoming a permanent
immigrant (“greencard holder”) to the US constitutes abandonment of residency. (see Macalintal
vs. Comelec [2003]) In S. Jalosjos vs. Comelec (2013) it was ruled that a temporary stay in a stranger’s
house cannot amount to residence. The SC also reiterated in this case the rule that the approval of
voter registration does not presuppose six-month residency in the place prior to registration.

47. “Fugitive from justice" 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 to evade prosecution or punishment when there is
knowledge by the fleeing subject of an already instituted indictment, or of a promulgated
judgment of conviction. (Rodriguez vs. Comelec [1996]). Thus, where a candidate was merely not
served a warrant of arrest because he was no longer in the hospital where he was earlier confined
when the authorities attempted to serve the warrant, this fact alone cannot be considered
conclusive of his “intent to evade” the authorities absent any other convincing evidence. (see
Labao, Jr. vs. Comelec [July, 2016])
11


48. Eligibility of Ecclesiastics to a local elective position: While five members of the Court constituted
a minority, the vote of the remaining seven did not suffice to render the challenged provision
(Sec. 2175 of the old Administrative Code states: "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.”) ineffective. Section 2175 of the Revised Administrative Code, as far as
ecclesiastics are concerned, was be accorded respect. (Pamil vs. Teleron [1978]). It must be noted
that the provision disqualifying ecclesiastics from holding local appointive or elective position
refers to “municipal” positions only. Hence, there seems to be no controversy for an ecclesiastic
to be elected Governor of a province like in the case of Roman Catholic Priest Eddie Panlilio of
Pampanga.

Synchronization of National and Local Elections; ARMM elections

49. While the Constitution does not expressly state that Congress has to synchronize national and
local elections, the clear intent towards this objective can be gleaned from the Transitory
Provisions (Article XVIII) of the Constitution. The objective behind setting common termination
date for all elective officials, done among others through the shortening the terms of the twelve
winning senators with the least number of votes, is to synchronize the holding of all future
elections — whether national or local — to once every three years. This intention finds full
support in the discussions during the Constitutional Commission deliberations. These Con-Com
exchanges, read with the provisions of the Transitory Provisions of the Constitution, all serve as
patent indicators of the constitutional mandate to hold synchronized national and local elections,
starting the second Monday of May, 1992 and for all the following elections. (Datu Michael Abas
Kida vs. Senate of the Philippines [2011].

Although called regional elections, the ARMM elections should be included among the elections
to be synchronized as it is a "local" election based on the wording and structure of the
Constitution. (Ibid.)

As can be gleaned from Sec. 8 of Art. VI, Sec. 4 (3) of Art. VII, and Sec. 3 of Art. X of the 1987
Constitution, the power to fix the date of the election is essentially legislative in nature. Thus it
was held that Comelec does not have the power to order special elections. The authority of the
Comelec to postpone elections under Sections 5 (Postponement of Elections) and Section 6
(Failure of Elections) of the B.P. Blg. 881 (Omnibus Election Code) presupposes that Congress, by
law, has already fixed the date of the elections and by reason of force majeure, violence, terrorism
and other causes enumerated therein, there is need to postpone the date of election already fixed
by law or schedule a new one where the one fixed by law has not been held. (Ibid.)

The Aguinaldo or Condonation Doctrine, Abandoned; Prospective application

50. In Aguinaldo, the re-election of the local executive official rendered the pending administrative case
against him moot. As explained in Aguinaldo v. Santos, 212 SCRA 768 (1992), a local elective official
cannot be removed from office for misconduct committed during his previous term, because each
term is separate and the people by re-electing him are deemed to have forgiven his misconduct.

In Carpio-Morales vs. Court of Appeals (November 2015), however, the Principle of Condonation
(popularly known as the Aguinaldo Doctrine) has been declared no longer controlling. The
Supreme Court said:

“Overall, the foregoing data clearly contravenes the preliminary


conclusion in Pascual that there is a "weight of authority" in the US on the
condonation doctrine. In fact, without any cogent exegesis to show that
Pascual had accounted for the numerous factors relevant to the debate on
condonation, an outright adoption of the doctrine in this jurisdiction
would not have been proper.

At any rate, these US cases are only of persuasive value in the


process of this Court's decision-making. ….Note that the doctrine of stare
decisis does not preclude this Court from revisiting existing doctrine.

In this case, the Court agrees with the Ombudsman that since the
time Pascual was decided, the legal landscape has radically shifted. Again,
Pascual was a 1959 case decided under the 1935 Constitution which dated
provisions do not reflect the experience of the Filipino People under the
12


1973 and 1987 Constitutions. Therefore, the plain difference in setting,
including, of course, the sheer impact of the condonation doctrine on
public accountability, calls for Pascual's judicious re-examination.”

Note: Abandonment of condonation doctrine should be prospectively applied (thus, treating the
condonation doctrine as "good law" when the COMELEC's petition was commenced on October
29, 2013, and when petitioner filed his Verified Answer cum Memorandum invoking the same)
(See Dimapilis v. Commission on Elections, G.R. No. 227158, [April 18, 2017])

Aguinaldo Doctrine vs. Section 40 (b) of LGC of 1991

It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar
to Section 40 (b) which disqualifies any person from running for any elective position on the
ground that he has been removed as a result of an administrative case.
The Local Government Code of 1991 x x x could not be given retroactive effect. (Dimapilis v.
Commission on Elections, G.R. No. 227158, [April 18, 2017], citing Reyes vs. Comelec [1996])

Consequently, if an elective candidate committed misconduct prior to the effectivity of the LGC
of 1991 on January 1, 1992 but was removed from office as a result of an administrative case (with
a final decision) after the effectivity of the LGC of 1991, he shall nonetheless be disqualified to
hold local elective position notwithstanding that he may have been reelected at some point after
he committed act of misconduct.

Three-Term Limit Rule

51. The word "term" in a legal sense means a fixed and definite period of time which the law
describes that an officer may hold an office. According to Mechem, the term of office is the period
during which an office may be held. Upon expiration of the officer's term, unless he is authorized
by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. (see
Albania v. Commission on Elections [2017], citing Aldovino [2009]).

52. The Constitutional Commission's deliberations on Section 8 (of Article X of the 1987 Constitution)
show that the authority of Congress to legislate relates not only to the fixing of the term of office
of barangay officials but also to the application of the three-term limit. In Comelec vs. Cruz (2009),
it was argued that while the term of barangay officials is not fixed in the constitution and is
therefore to be fixed by law, Congress’ authority in this matter should be limited only to fixing
the term. It was, therefore, argued that the phrase “and no such official shall serve for more than
three consecutive terms” found in Section 8 of Article X of the constitution shall not apply to
barangay officials and Congress cannot pass a law applying the three-term limit rule to barangay
officials. The Supreme Court rejected this argument.

53. Elements: (1) that the official concerned has been elected for three consecutive terms
in the same local government post; and
(2) that he has fully served three consecutive terms.

The 2013 case of Abundo, Sr. vs. Comelec summarized the prevailing jurisprudence on issues
affecting consecutiveness of terms and/or involuntary interruption, as follows:

“1. When a permanent vacancy occurs in an elective position and the official merely
assumed the position pursuant to the rules on succession under the LGC, then his service for the
unexpired portion of the term of the replaced official cannot be treated as one full term as
contemplated under the subject constitutional and statutory provision that service cannot be
counted in the application of any term limit (Borja, Jr.). If the official runs again for the same
position he held prior to his assumption of the higher office, then his succession to said position
is by operation of law and is considered an involuntary severance or interruption (Montebon,
citing Borja, Jr.).

2. An elective official, who has served for three consecutive terms and who did not seek
the elective position for what could be his fourth term, but later won in a recall election, had an
interruption in the continuity of the official's service. For, he had become in the interim, i.e., from
the end of the 3rd term up to the recall election, a private citizen (Adormeo and Socrates).

3. The abolition of an elective local office due to the conversion of a municipality to a city
does not, by itself, work to interrupt the incumbent official's continuity of service (Latasa).
13


4. Preventive suspension is not a term-interrupting event as the elective officer's
continued stay and entitlement to the office remain unaffected during the period of suspension,
although he is barred from exercising the functions of his office during this period (Aldovino, Jr.).

5. When a candidate is proclaimed as winner for an elective position and assumes office,
his term is interrupted when he loses in an election protest and is ousted from office, thus
disenabling him from serving what would otherwise be the unexpired portion of his term of
office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need not be
for a full term of three years or for the major part of the 3-year term; an interruption for any
length of time, provided the cause is involuntary, is sufficient to break the continuity of service
(Socrates, citing Lonzanida).

6. When an official is defeated in an election protest and said decision becomes final after
said official had served the full term for said office, then his loss in the election contest does not
constitute an interruption since he has managed to serve the term from start to finish. His full
service, despite the defeat, should be counted in the application of term limits because the
nullification of his proclamation came after the expiration of the term (Ong and Rivera).”

In the case of Abundo, the two-year period during which his opponent, Torres, was serving as
mayor should be considered as an interruption, which effectively removed Abundo's case from
the ambit of the three-term limit rule.

54. “Interruption” of a term exempting an elective official from the three-term limit rule is one that
involves no less than the involuntary loss of title to office. An officer who is preventively
suspended is simply barred from exercising the functions of his office but title to office is not lost.
Preventive suspension, therefore, does not interrupt the term for which the official was elected.
(see Aldovino vs. Comelec [2009])

What if the suspension imposed upon the official was in the form of a penalty, will Aldovino
doctrine still apply? One may invoke Justice Mendoza’s opinion when he penned Borja vs.
Comelec (1998). In explaining the Court’s decision, J. Mendoza used illustrations that included a
Mayor who was “twice suspended for misconduct for a total of one (1) year “during a first term
and who was subsequently elected and served for two consecutive terms. J. Mendoza opined that
the Mayor’s suspension effectively interrupted the term of the Mayor concerned and he,
therefore, has “not fully served three consecutive terms”. However, one may argue that the
Court’s reasoning in Aldovino, which came after Borja, would still apply to suspension as penalty.
Firstly, J. Mendoza’s opinion in Borja may be treated as obiter. Secondly, under the LGC of 1991,
when a Mayor is suspended (as penalty), the Vice-mayor succeeds only in an acting capacity,
indicating that the office of the Mayor was never vacated when the Mayor got suspended.

55. Will the three-term limit rule apply upon local elective officials in renamed and/or reapportioned
districts? The Supreme Court answered this question in the affirmative in Naval vs. Comelec
(2014), a case of first impression. In this case, Mr. Naval already served for two (2) consecutive
terms (2007-2010) as member of the Provincial Board of Camarines Sur Second District. The
second district consisted of ten (10) municipalities. A reapportionment law was thereafter passed
creating a Third District which consisted of the eight (8) municipalities of the Second District.
When Naval ran for the Third District for the same position of Member of the Provincial Board,
the Supreme Court ruled that the three-term limit rule should be applied to him. The Supreme
Court applied the reasoning in Latasa.

56. In Albania vs. Comelec (2017), while respondent therein ran as Governor of Camarines Norte in the
2007 elections, he did not win as such. It was only after he filed a petition for correction of
manifest error that he was proclaimed as the duly-elected Governor. He assumed the post and
served the unexpired term of his opponent from March 22, 2010 until June 30, 2010.
Consequently, he did not hold the office for the full term of three years to which he was
supposedly entitled to. Thus, such period of time that respondent served as Governor did not
constitute a complete and full service of his term. The period when he was out of office
involuntarily interrupted the continuity of his service as Governor. As he had not fully served the
2007-2010 term, and had not been elected for three consecutive terms as Governor, there was no
violation of the three-term limit rule when he ran again in the 2016 elections.

Discipline of Local Elective Officials

57. Unlike the old law, removal of a local elective official can only be done by regular courts (RTC,
CA, or Sandiganbayan), not anymore by the Office of the President through the DILG. The rule
14


which confers to the proper courts the power to remove an elective local official from office is
intended as a check against any capriciousness or partisan activity by the disciplining authority.
(see Sec. 60, LGC and Sangguniang Barangay of Don Mariano Marcos vs. Martinez [2008]). As for other
forms of administrative penalty, such as suspension, etc., judicial proceeding is not required. The
appropriate Office or Sanggunian, as the case may be, can impose such other administrative
penalty.

58. In administrative cases involving the concurrent jurisdiction of two or 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 [2013])

59. The following are the requirements for the imposition of Preventive Suspension:

(a) Issues have already been joined;


(b) Evidence of guilt is strong;
(c) Given the gravity of the offense, respondent might influence witnesses or pose a
threat to records/evidence. (Sec. 63; Joson III vs. CA[ 2006])

60. Penalty of Suspension shall not exceed the unexpired term or a period of six (6) months per
administrative case, nor is it a bar to candidacy. [Sec. 66 (b)]

61. In case of 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.

Veto Power of Local Chief Executive

62. Q1: How does the local legislative assembly override the veto by the local chief executive of an ordinance?
Q2: On what grounds can a local chief executive veto an ordinance? Q3: How can an ordinance vetoed by
local chief executive become a law without it being overridden by the local legislative assembly?

A1: Under Section 54(a) and 55(c) of the Local Government Code, the local legislative
assembly can override the veto of the local chief executive by two-thirds (2/3) vote of all its
members.

A2: Under Section 55(a) of the Local Government Code, the local chief executive may veto an
ordinance on the ground that it is ultra vires or prejudicial to the public welfare.

A3: Pursuant to Section 54(b) of the Local Government Code, an ordinance vetoed by the
local chief executive shall be deemed approved if he does not communicate his veto to the
local legislative assembly within fifteen (15) days in the case of a province and ten (10) days
in the case of a city or a municipality. Likewise, if the veto by the local executive has been
overridden by the local legislative assembly, a second veto will be void. Under Section 55(c)
of the Local Government Code, the local chief executive may veto an ordinance only once.

Practice of Profession of local elective officials

63. All governors, city and municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions as local chief executives.
Sanggunian members may practice their professions, engage in any occupation, or teach in
schools except during session hours. However, Sanggunian members who are also members of
the Bar are subject to certain limitations when they practice law. A Doctor of Medicine, whether
local chief executive or not, may practice medicine in times of emergency provided he does not
receive compensation. (See Sec. 90, LGC)

Note: Punong Barangays or Barangay Captains are not specifically prohibited by the LGC from
practicing their professions. Expressio unius est exclusio alterius. Apparently, the position of a
Punong Barangay is not meant to be a full time job as the barangay council is required to hold
sessions twice a month only. However, as required by civil service laws, a Punong Barangay must
15


obtain permission from the head of his office if he intends to practice his profession, in his case,
the head of the DILG. (see Catu vs. Rellosa (2008).

Presiding Officer of Sanggunian

64. For purposes of exercising his legislative prerogatives and powers, the Vice-Governor, who is
acting as Governor, is deemed as a non-member of the SP for the time being. Under RA 7160,
unlike in the old law, the Governor was already deprived of the power to preside over the SP as
he is not a member thereof. Hence, being the Acting Governor, the Vice-Governor cannot
continue to simultaneously exercise the duties of the latter office. Indeed, the creation of a
temporary vacancy in the office of the Governor creates a corresponding temporary vacancy in
the office of the Vice Governor whenever the latter acts as Governor by virtue of such temporary
vacancy. This event constitutes an inability on the part of the regular presiding officer (Vice
Governor) to preside during the SP sessions, which thus calls for the operation of the remedy set
in Art. 49(b) of the Local Government Code concerning the election of a temporary presiding
officer. (see Gamboa vs. Aguirre [1999])

Quorum in Sanggunian

65. The Supreme Court interpreted Section 53 of RA 7160 to mean that “the entire membership must
be taken into account in computing the quorum of the sangguniang panlalawigan”. In stating
that there were fourteen (14) members of the Sanggunian, the Supreme Court in the said Zamora
case included the Vice-Governor, as presiding officer, as part of the entire membership of the
Sangguniang Panlalawigan which must be taken into account in computing the quorum. (Zamora
vs. Caballero [2004])

In recent case of La Carlota City, Negros Occidental vs. Atty. Rex G. Rojo [2012], the Supreme Court,
applying Zamora case, ruled that the vice-mayor shall be included in the computation of the
quorum because under the Local Government Code of 1991, the Sangguniang Panlungsod "shall
be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the
president of the city chapter of the liga ng mga barangay, the president of the panlungsod na
pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members."

Subpoena and Contempt Powers of Sanggunian

66. A Sanggunian is not empowered to issue subpoenas to compel the attendance witnesses. There is no
provision in the Constitution, the Local Government Code, or any law expressly granting local
legislative bodies the power to subpoena witnesses. As held in Negros Oriental II Electric
Cooperative, Inc. vs. Sangguniang Panlungsod of Dumaguete, 155 SCRA 421, such power cannot be
implied from the grant of delegated legislated power. Such power is judicial.

Likewise, a Sanggunian does not have the power to cite for contempt. There is likewise no
provision in the Constitution, the Local Government Code, or any other laws granting local
legislative bodies the power to cite for contempt. Such power cannot deem implied in the
delegation of legislative power to local legislative bodies, for the existence of such power poses a
potential derogation of individual rights.

Recall

67. Some rules on Recall:

a. Based on “trust and confidence” only; grounds for recall must, however, be stated in the
petition;
b. No more Preparatory Recall Assembly (PRA) as mode of initiating recall, only by registered
voters subject to certain percentages pursuant R.A. 9244 (2004);
c. Official subject of recall becomes automatic candidate in the recall election;
d. The official subject of recall cannot resign during recall process;
e. Recall election should only be once during the term of the official. (note of “election”, not
“proceeding”)
f. 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).
16


Local “Midnight Appointments”

68. Article VII, Section 15 of the 1987 Constitution which prohibits “midnight appointments” applies
only to presidential appointments. In fact, there is no law that expressly prohibits local elective
officials from making appointments during the last days of his or her tenure. (De Rama vs. CA
[2001]) This kind of appointment, however, is subject to Civil Service Rules that generally
prohibit “en masse” appointments before the expiration of term of the appointing oficial.

Settlement of Boundary Disputes

69. Boundary disputes between and among local government units shall, as much as possible, be
settled amicably. To this end:

(a) Boundary disputes involving two (2) or more barangays in the same city or municipality
shall be referred for settlement to the sangguniang panlungsod or sangguniang bayan
concerned.
(b) Boundary disputes involving two (2) or more municipalities within the same province shall
be referred for settlement to the sangguniang panlalawigan concerned.
(c) Boundary disputes involving municipalities or component cities of different provinces shall
be jointly referred for settlement to the sanggunians of the province concerned.
(d) Boundary disputes involving a component city or municipality on the one hand and a highly
urbanized city on the other, or two (2) or more highly urbanized cities, shall be jointly
referred for settlement to the respective sanggunians of the parties.
(e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from
the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter,
the dispute shall be formally tried by the sanggunian concerned which shall decide the issue
within sixty (60) days from the date of the certification referred to above. (Sec. 118, LGC)

Within the time and manner prescribed by the Rules of Court, any party may elevate the decision
of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area
in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing
thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and
continued for all legal purposes. (Sec. 119, LGC)

70. There is a “boundary dispute” when a portion or the whole of the territorial area of an LGU is
claimed by two or more LGUs. Nothing in this definition excludes an “island”. So, as long as the
island is claimed by different local government units, there exists a “boundary dispute”.
Accordingly, the RTC cannot immediately take jurisdiction over the dispute without observing
the appropriate procedure in the LGC of 1991. Boundary disputes involving municipalities and
component cities of different provinces shall first be jointly referred for settlement to the
Sanggunians of the provinces concerned. It is only upon the failure of this intermediary step will
resort to the RTC will follow, as provided for in Sec. 119 of the Local Government Code of 1991.
(Province of Antique and Municipality of Caluya vs. Hon. Calabocal [June 8, 2016])

By virtue of the Local Government Code of 1991, the RTC lost its power to try, at the first
instance, cases of boundary disputes, and it is only when the intermediary steps have failed that
resort to the RTC will follow as provided in the laws. (Barangay Mayamot, Antipolo City v. Antipolo
[August 17, 2016])

Administrative Law

What may be delegated to administrative agencies

71. 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 may 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
[1988])

Government instrumentality, regulatory agency, chartered institution, and GOCC

72. A government instrumentality refers to any agency of the national government, not integrated
within the department framework, vested with special functions or jurisdiction by law, endowed
with some if not all corporate powers, administering special funds, enjoying operational
17


autonomy, usually through a charter. The term includes regulatory agencies, chartered
institutions and government-owned or controlled corporations. (Sec. 2[10], Introductory
Provisions, EO No. 292)

A regulatory agency refers to any agency expressly vested with jurisdiction to regulate, administer
or adjudicate matters affecting substantial rights and interest of private persons, the principal
powers of which are exercised by a collective body, such as a commission, board or council. (Sec.
2[11], Introductory Provisions, EO No. 292)

A chartered institution refers to any agency organized or operating under a special charter, and
vested by law with functions relating to specific constitutional policies or objectives. This term
includes state universities and colleges and the monetary authority of the State. (Section 2[12],
Introductory Provisions, EO No. 292)

A Government owned or controlled corporation (GOCC) is an 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.

Abolition of Offices

73. In Larin vs. Executive Secretary (1997), the subject E.O. provided that: "1.1.2 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
ruled that the abolition was invalid because the newly created office merely absorbs the functions
of the abolished office, an indicia of bad faith.

In Kapisanan ng Mga Kawani Ng ERB vs. Barin (2007), the SC ruled: “the overlap in the functions of
the ERB and 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 v. Civil Service Commission (1993), the
SC said: “[I]f 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.”

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 speak 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])

Limited Power of the President to create offices

74. Rules on the Power of the President to create offices:

• Subsumed in President’s Power to Reorganize “already existing” Offices within the


Office of the President Proper (OPP);
• Reorganization is limited to: (1) internal reorganization within OPP, (2) transferring
function of unit of OPP to a Dept./Agency or vice versa, (3) transferring agency of OPP to
Dept./Agency or vice versa;
• Creation of NEW OFFICE, not included! Creation of new office remains a LEGISLATIVE
FUNCTION!
• Creation of AD HOC OFFICE/COMMITTEE, which the President may create, can only
be justified under Faithful Execution Clause and Power to investigate, and not under
Power of Control. [Biraogo vs. Philippine Truth Commission (PTC), Dec. 2010]

Note: “Office of the President Proper” (OPP) refers to the following offices under Sec. 22, Title II,
Book III of the Administrative Code of 1987:
18

(1) The Office of the President Proper shall consist of the Private Office, the Executive
Office, the Common Staff Support System, and the Presidential Special
Assistants/Advisers System;

(2) The Executive Office refers to the Offices of the Executive Secretary, Deputy
Executive Secretaries and Assistant Executive Secretaries;

(3) The Common Staff Support System embraces the offices or units under the
general categories of development and management, general government
administration and internal administration; and

(4) The President Special Assistants/Advisers System includes such special


assistants or advisers as may be needed by the President.

Control Power of the President

75. 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)

Quasi-legislative and Quasi-judicial functions of Administrative Agencies

76. Basic distinctions between quasi-legislative (QL) and quasi-judicial (QJ) functions of
administrative agencies:

• 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 (Smart vs. NTC case)
• QJ decisions are, generally, brought to the CA/SC because QJ agencies are deemed equal
in rank with RTC. If QL only, RTC generally.

77. 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 complaint in court. In doing so, he does not adjudicate upon the rights,
obligations or liabilities of the parties before him. (MERALCO v. Atilano, [2012])

78. The “Doctrine of Necessary Implication” does not authorize the exercise of powers greater than
the express powers, such that, for example, the power to “regulate” does not include the power
to “prohibit”; nor does the power to “investigate” necessarily include the power to “adjudicate”
(Carino vs. CHR, 204 SCRA 483)

Doctrine of Subordinate Legislation

79. Q: May an implementing rule provide for a provision not found in the statute?

A: As a rule, administrative rules and regulations are intended to carry out, not to supplant nor
to modify, the law. An administrative agency cannot amend an act of Congress. In case of
discrepancy between a provision of statute and a rule or regulation issued to implement said
statute, the statutory provision prevails. (Echegaray vs. DOJ [1998])

However, where a rule or regulation has a provision not expressly stated or contained in the
statute 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. (Holy Spirit Homeowners’ Association vs.
Defensor [2006])

Thus, in a case, the Supreme Court ruled that the COMELEC had the authority to promulgate
Resolution No. 8714 pursuant to Sec. 35 of R.A. No. 7166. It was granted the power to issue the
implementing rules of Secs. 32 and 33 of R.A. No. 7166. The COMELEC was mandated to
provide the details of who may bear, carry or transport firearms or other deadly weapons, as well
as the definition of “firearms,” among others. These details are left to the discretion of the
19


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…That the COMELEC deemed “airguns, airsoft guns and their
replica/imitation” as included in the meaning of “firearms” in its Implementing rules was valid.
(Atty. Orceo vs. Comelec [2010])

When hearing is required even in Quasi-legislative issuances

80. 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 adds 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. (CIR
VS. CA, 261 SCRA 236)

Enforceability and Validity of Administrative Issuances

81. The Adm. Code of 1987, Section 3 thereof, expressly requires each agency to file 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 with the ONAR are ineffective and may not be enforced. (GMA vs. MTRCB
[2007])

82. Requirements for the validity of administrative rules with penal provisions:

1. The statute has declared the violation punishable;


2. The statute must have imposed and specified the penalty for the violation;
3. The rule must be published.

Administrative Due Process

83. 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. Hence, notice and hearing
and adjudication are required in these cases. (see Sañado vs. Court of Appeals) [What about “rate-
fixing”?]

84. 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. (Utto vs. Comelec, 375 SCRA 523)

85. Exceptions to the requirement of Notice and Hearing:

1. Summary Abatement of Nuisance per se (police power)


2. Preventive Suspension (it is not a penalty)
3. Padlocking of filthy restaurants, theaters, etc. (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)

81.“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion”. (Rubberworld vs. NLRC, 175 SCRA 450)

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. [PLDT vs. Tiamson (2005)]

86. 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. (Atienza, Jr. vs.
Comelec, 2010)
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Subpoena and Contempt Powers of Administrative Agencies

87. Subpoena and contempt powers are not inherent in admin 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. (Carmelo vs. Ramos, 6 SCRA 836)
[Cf: Sec. 13, Book VII of Administrative Code]

Note: If agency is created not by the Administrative Code but by a 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 the RTC) of the Code may be
invoked. Hence, authority to merely “investigate” does not confer the QJ body the power to cite a
person in contempt under the Administrative Code. (See: Carmelo vs. Ramos, supra.)

Judicial Review of Administrative Decisions

88. Basic Rules on Judicial Review of Administrative Decisions:

1. Decisions may 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 weigh 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.
(Ombudsman vs. Bungubung [2008], citing Montemayor vs. Bundalian [2003])

Res Judicata

89. 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. In
Board of Commissioners vs. Dela Rosa 197 SCRA 853, there is no res judicata in administrative
adjudication of citizenship unless certain requisites are present.

Doctrine of Primary Jurisdiction; Doctrine of Prior Exhaustion of Administrative Remedies

90. Under the Doctrine of Primary Jurisdiction (or Prior Resort), courts cannot and will not resolve a
controversy involving a question which is within the jurisdiction of an administrative tribunal,
especially where the question demands the exercise of sound administrative discretion requiring
the special knowledge, experience and services of the administrative tribunal to determine
technical and intricate matters of fact.

91. The Doctrine of Exhaustion of Administrative Remedies, on the other hand, requires that before a
party is allowed to seek the intervention of the court, it is a pre-condition that he should have
availed first of all the means of administrative processes afforded him. Hence, if a remedy within
the administrative machinery can still be resorted to by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his jurisdiction then such
remedy should be exhausted first before the court’s judicial power can be sought. The premature
invocation of court’s jurisdiction is fatal to one’s cause of action. Accordingly, absent any finding
of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. Non-
exhaustion of administrative remedies is not, however, jurisdictional. It only renders the action
premature, i.e., claimed cause of action is not ripe for judicial determination and for that reason a
party has no cause of action to ventilate in court. (Carale v. Abarintos, 269 SCRA 132)

This doctrine, however, is disregarded in the following instances:

1) when there is a violation of due process;


2) when the issue involved is purely a legal question; (see: Mangune vs. Ermita [2016])
3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction;
4) when there is estoppel on the part of the administrative agency concerned;
5) when there is irreparable injury;
6) when the respondent is a department secretary whose acts as an alter ego of the President
bears the implied and assumed approval of the latter;
7) when to require exhaustion of administrative remedies would be unreasonable;
8) when it would amount to a nullification of a claim;
9) when the subject matter is a private land in land case proceeding;
21


10) when the rule does not provide a plain, speedy and adequate remedy, and
11) when there are circumstances indicating the urgency of judicial intervention.
(Paat v. CA, 266 SCRA 167)

92. Contrary to their claim of lack of plain, speedy, adequate remedy in the ordinary course of law,
petitioners should be faulted for failing to seek reconsideration of the assailed memorandum and
directive before the Secretary of National Defense. The Secretary of National Defense should be
given opportunity to correct himself, if warranted, considering that AFP Regulations G 161-375
was issued upon his order. Questions on the implementation and interpretation thereof demand
the exercise of sound administrative discretion, requiring the special knowledge, experience and
services of his office to determine technical and intricate matters of fact. If petitioners would still
be dissatisfied with the decision of the Secretary, they could elevate the matter before the Office
of the President which has control and supervision over the Department of National
Defense (DND). (Ocampo v. Enriquez, [November 8, 2016])

Jurisdiction of DARAB in Agrarian cases

93. Under Section 50, DAR has primary jurisdiction to determine and adjudicate agrarian reform
matters and exclusive original jurisdiction over all matters involving the implementation of
agrarian reform, except those falling under the exclusive jurisdiction of the DA and the DENR.
Further exception to the DAR's original and exclusive jurisdiction are all petitions for the
determination of just compensation to landowners and the prosecution of all criminal offenses
under RA No. 6657, which are within the jurisdiction of the RTC sitting as a Special Agrarian
Court. Thus, jurisdiction on just compensation cases for the taking of lands under RA No. 6657 is
vested in the courts. (Land Bank of the Philippines vs. Honeycomb Farms [2012], J. Brion)

Law of Public Officers

Definition of “office”, “public officer” and “public official”

94. “Office” refers, within the framework of governmental organization, to any major functional unit
of a department or bureau including regional offices. It may also refer to any position held or
occupied by individual persons, whose functions are defined by law or regulation. (Sec. 2 (9),
Introductory Provisions of Administrative Code)

95. 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 v. Desierto
[2002])

96. “Officer”, as distinguished from “clerk” or “employee”, refers to a person whose duties not being
of a clerical or manual nature, involves the exercise of discretion in the performance of the
functions of the government. When used with reference to a person having authority to do a
particular act or perform a particular act in the exercise of governmental power, “officer”
includes any government employee, agent or body having authority to do the act or exercise that
function. (Sec. 2 (14), Introductory Provisions of Administrative Code)

97. “Public Officer” (for purpose of applying Section 203 of the RPC) refers to any person who, by
direct provision of the law, popular election or appointment by competent authority, shall take
part in the performance of public functions in the Government of the Philippine Islands, or shall
perform in said Government or in any of its branches public duties as an employee, agent, or
subordinate official, of any rank or class, shall be deemed to be a public officer. (Sec. 203, RPC)

98. “Public officer” (for the purpose of applying Plunder Law) refers to “any person holding any
public office in the Government of the Republic of the Philippines by virtue of an appointment,
election or contract.” (Sec. 1 (a), RA 7080)

99. “Public Officials” (for the purpose of applying RA 6713) 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.
(Sec. 3 (b) of Republic Act No. 6713)
22

Jurisdiction of Ombudsman

100. The Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs
with original charters. It can only investigate and prosecute acts of the officials/employees of
government corporations. Even if the government later on will acquire the controlling interest, as
in the case of PAL, the fact remains that the latter did not have an “original charter”. (Khan vs.
Ombudsman [2006]; Carandang vs. Ombudsman [2011])

101. The power of investigation granted to the Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with other similarly authorized government
agencies, such as the PCGG and judges of municipal trial courts and municipal circuit trial
courts. The power to conduct preliminary investigation on charges against public employees and
officials is likewise concurrently shared with the Department of Justice. Despite the passage of
the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the
Office of the President and the local Sanggunians to investigate complaints against local elective
officials. (Flores vs. Montemayor [2011])

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. (Busuego vs. Ombudsman (Mindandao) and Busuego, G.R. No. 196842,
October 09, 2013)

The provisions of Section 20 
(5) of R.A. 6770 are merely directory. The
Ombudsman is not
prohibited 
from conducting an
investigation a year after the
supposed act was committed.
The issue of whether Section 20 (5) of R.A. 6770 is mandatory or discretionary has been settled
by jurisprudence. [W]ell-entrenched is the rule that administrative offenses do not prescribe.
Administrative offenses by their very nature pertain to the character of public officers and
employees. In disciplining public officers and employees, the object sought is not the
punishment of the officer or employee but the improvement of the public service and the
preservation of the public's faith and confidence in our government. (Office of the Ombudsman
vs. Andutan, Jr. [2011])

Authority to Discipline Deputy Ombudsman

102. Subjecting the Deputy Ombudsman to discipline and removal by the President, whose own alter
egos and officials in the Executive Department are subject to the Ombudsman's disciplinary
authority, cannot but seriously place at risk the independence of the Office of the Ombudsman
itself. The Office of the Ombudsman, by express constitutional mandate, includes its key officials,
all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately,
intrusion upon the constitutionally-granted independence is what Section 8 (2) of RA No.
6770 exactly did. By so doing, the law directly collided not only with the independence
that the Constitution guarantees to the Office of the Ombudsman, but inevitably
with the principle of checks and balances that the creation of an Ombudsman office seeks to
revitalize.
What is true for the Ombudsman must be equally and necessarily true for her Deputies who act
as agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly
be expected to place her complete trust in her subordinate officials who are not as independent
as she is, if only because they are subject to pressures and controls external to her Office. This
need for complete trust is true in an ideal setting and truer still in a young democracy like the
Philippines where graft and corruption is still a major problem for the government. For these
reasons, Section 8 (2) of RA No. 6770 (providing that the President may remove a Deputy
Ombudsman) should be declared void. (Gonzales III v. Office of the President of the Philippines,
G.R. Nos. 196231 & 196232, [January 28, 2014], 725 PHIL 380-452)

Authority to Discipline Special Prosecutor of the Ombudsman

103. While the composition of the independent Office of the Ombudsman under the 1987 Constitution
does not textually include the Special Prosecutor, the weight of the foregoing discussions
on the unconstitutionality of Section 8 (2) of RA No. 6770 should equally apply to the Special
Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded in
23


jurisprudence. (Gonzales III v. Office of the President of the Philippines, G.R. Nos. 196231 & 196232,
[January 28, 2014], 725 PHIL 380-452)

Nature of Public Office

104. Public office is personal to the incumbent and is not a property which passes to his 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])

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 considered “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])

105. Q: May a person be compelled to accept an office? Answer: Generally, no. But an elected official
who refuses without valid motive to be sworn in 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 the National Defense Act.

De facto Officer; Salary

106. A de facto officer must be distinguished from a mere usurper. A “de facto officer” has color of
right or title to the office 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 right or title to the office; the act of a
de facto officer is valid as if it was done by a de jure officer but that of a usurper is absolutely null
and void; the former may be removed through a direct proceeding only.

A de facto public 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. [Sampayan vs. Daza, 1992]

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. A de facto officer, not having a good title, takes the
salaries at his risk and must, therefore, account to the 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.

107. What is the effect of a disapproval by the Civil Service Commission (CSC) of a public officer’s
appointment? If the basis for disapproval is not “violation of civil service law”, say lack of
qualification, the appointee is entitled to a 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 [2009])

Qualification; Effect of Pardon

108. Unlike residence and age qualifications, the qualification of “citizenship” for local elective
officials under the Local Government Code of 1991 must only be possessed at the time the
candidate becomes “elective official” by his valid proclamation and at the start of his term.
(Frivaldo vs. Comelec [1996])

109. What is the effect of Pardon on the right to hold public office? Under Art. 36 of the Revised Penal Code,
pardon shall not work the restoration of the right to hold public office, or the right of suffrage,
unless such rights be expressly restored by the terms of the pardon. In Monsanto vs. Factoran, the
Supreme Court said that the pardon granted to petitioner has 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 re-apply and undergo the usual procedure
required for a new appointment. The Supreme Court continued to say that pardon looks to the
future and 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
24


suffered. This would explain why petitioner, though pardoned, cannot be entitled to receive
backpay for lost earnings and benefits.

Appointment vs. Designation

110. Appointment is different from “designation”, the latter involving the giving of additional
functions to an already appointed officer. Appointment requires: (1) that the appointing authority
is vested with that power, (2) the appointee possesses all the qualifications (including civil service
eligibility, and none of the disqualifications, (3) the position is vacant, (4) the appointment is
approved by the CSC, (5) the appointee accepts by taking the oath and discharges the functions.

An officer who is merely “designated” is not entitled to a security of tenure. He holds the office
only in a temporary character. He is likewise not entitled to additional benefits. (see Santiago vs.
COA [1991]; Sevilla vs. CA & Santos [1992])

Permanent vs. Temporary Appointment

111. Permanent – the appointee meets all the qualifications and requirements including the
appropriate eligibility requirement (civil service eligibility requirement); it lasts until lawfully
terminated.

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 facto with or without
qualified replacement. (See Pangilinan vs. Maglaya [1993]; Province of Camarines Sur vs. CA [1995])

Discretion of Appointing Authority; Role of CSC in appointments

112. The appointing authority is given ample discretion in the selection and appointment of qualified
persons to vacant positions, 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.

Civil Service Commission has no power of appointment 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 be preferred belongs to the
appointing authority and not the Civil Service Commission. It cannot disallow an appointment
because it believes another person is better qualified and much less can it direct the appointment
of its own choice.

Nepotism

113. An original appointment cannot be validly issued to one who is related “within the third degree of
consanguinity or affinity” to the recommending or appointing authority. Exceptions: employment
in confidential capacity, teacher, physician, or AFP member. (Civil Service Law)

Next-in-rank Rule

114. One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy
but it does not necessarily follow that he and no one else can be appointed. The rule neither
grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to
promote such person to the next higher position. Thus, an officer lower in rank but of superior
qualification may be promoted instead.

Primarily Confidential Position

115. A primarily confidential position is one which denotes not only confidence in the aptitude of the
appointee for the duties of the office but primarily close intimacy which ensures freedom from
intercourse without embarrassment or freedom from misgivings or betrayals of personal trust or
confidential matters of state.

Under the proximity rule, the occupant of a particular position could be considered a confidential
employee if the predominant reason why he was chosen by the appointing authority was the
25


latter’s belief that he can share a close intimate relationship with the occupant which ensures
freedom of discussion without fear or embarrassment or misgivings of possible betrayal of
personal trust or confidential matters of state. Withal, where the position occupied is more
remote from that of the appointing authority, the element of trust between them is no longer
predominant. (CSC v. Salas, 274 SCRA 414)

116. It is not the absence or presence of the required appointment from the CSC, or the membership of
an employee in the SSS or in the GSIS that determine the status of the position of an employee. It
is the regulation or the law creating the Service that determines the position of the employee.
(Hidalgo vs. CSC [2010])

Doctrine of Official Immunity

117. 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 damnum 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 v. Solmac Marketing Corp.
[1991])

Discipline and Liability of public officials

118. There are two kinds of preventive suspension of civil service employees who are charged with
offenses punishable by removal or suspension: (i) preventive suspension pending investigation
and (ii) preventive suspension pending appeal. Compensation is due only for the period of preventive
suspension pending appeal should the employee be ultimately exonerated.

119. When performing official functions, public officers are liable only in case of (1) malice, (2) bad
faith, and (3) Gross Negligence. They are not liable for wrong interpretation of law, unless in the
case of judges who commit gross ignorance of the law. Heads, on the other hand are liable for
acts of subordinates only when he has authorized by written order the act complained of. Cf.
Arias Doctrine.

When Arias Doctrine not applicable

120. Petitioners cannot hide behind our declaration in Arias v. Sandiganbayan that heads of offices
cannot be convicted of a conspiracy charge just because they did not personally examine every
single detail 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 case at bar in which petitioners' unity of purpose and unity in the execution of an
unlawful objective were sufficiently established. Also, unlike in Arias, where there were 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 voucher to ascertain whether it was proper to sign it in order to approve and
disburse the cash advance. (Bacasmas vs. Sandiganbayan [2013])

Three-fold Liability Rule

121. It is a basic rule in administrative law that public officials are under a three-fold responsibility for
a violation of their duty or for a wrongful act or omission, such that they may be held civilly,
criminally and administratively liable for the same act. Administrative liability is thus separate
and distinct from penal and civil liability.

Moreover, the fact that the administrative case and the case filed before the Ombudsman are
based on the same subject matter is of no moment. It is a fundamental principle of administrative
law that the administrative case may generally proceed against a respondent independently of a
criminal action for the same act or omission and requires only a preponderance of evidence to
establish administrative guilt as against proof beyond reasonable doubt of the criminal charge.
Accordingly, the dismissal of two criminal cases by the Sandiganbayan and of several criminal
complaints by the Ombudsman did not result in the absolution of petitioner from the
administrative charges. (Melendres vs. Presidential Anti-Graft Commission, [2012])
26

Election Laws

Interpretation of Election Laws

122. Defects in the certificates of candidacy should be questioned on or before the election and not
after the will of the people has been expressed through the ballots. While provisions relating to
certificates of candidacy are mandatory in terms, that mandatory provisions will be construed as
directory after the elections, to give effect to the will of the electorate. (Say-ang vs. Comelec [2003])

Party-list System

123. The party-list system is composed of three different groups: (1) national parties or organizations;
(2) regional parties or organizations; and (3) sectoral parties or organizations. National and
regional parties or organizations are different from sectoral parties or 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 [2013])

The enumeration of marginalized and under-represented sectors is not exclusive". The crucial
element is not whether a sector is specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.(Ang Ladlad LGBT Party v.
COMELEC [2010])

124. 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. v. COMELEC, [2010])

125. 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 are: 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. v. COMELEC [2013])

126. Question: To determine the "total votes cast for the party-list system," should the votes tallied for the
disqualified [party-list] candidates be deducted? Otherwise stated, does the clause "total votes cast for the
party-list system" include only those ballots cast for qualified party-list candidates? Answer: The divisor
(in the Banat Case Formula) shall be the total number of valid votes cast for the party-list system
including votes cast for party-list groups whose names are in the ballot but are subsequently
disqualified. Party-list groups listed in the ballot but whose disqualification attained finality prior
to the elections and whose disqualification was reasonably made known by the Commission on
Elections to the voters prior to such elections should not be included in the divisor. The divisor
shall also not include votes that are declared spoiled or invalid. (Alliance for Rural and Agrarian
Reconstruction, Inc. v. Commission on Elections [2013])

Power of COMELEC over elections

127. Congress has “primary authority” to regulate elections but when it leaves it to Comelec to issue
implementing rules of the law it enacted, its authority stops there. Otherwise, Comelec’s
independence will be violated. Hence, Congress cannot review or approve such implementing
rule in a “legislative veto” scheme. Any claim of an implementing rule’s infirmity/validity
should be brought to the Courts. (Macalintal vs. Comelec [2003])

Power of COMELEC to Postpone date of plebiscite (and of elections)

128. Even if the statute fixes the date of the plebiscite (for the creation of a LGU), the COMELEC has
"exclusive charge of the enforcement and administration of all laws relative to the 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
27


achieve the objective of holding free, orderly, honest, peaceful and credible elections.”(see Cagas v.
COMELEC [2013])

Power to Investigate and Prosecute election offenses

129. The grant of exclusive power to investigate and prosecute cases of election offenses to the
Comelec was not by virtue of the Constitution but by the Omnibus Election Code which was
eventually amended by Section 43 of R.A. 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])
CITDES
There is no impediment for the creation of a Joint Committee of DOJ and Comelec for the
purpose of conducting preliminary investigation in election cases. While the composition of the
Joint Committee and Fact-Finding Team is dominated by DOJ officials, it does not necessarily
follow that the Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee
finding probable cause for election offenses shall still be approved by the Comelec in accordance
with the Comelec Rules of Procedure. (Arroyo vs. DOJ, supra.)

Jurisdiction of the COMELEC

130. The rule that the COMELEC should decide cases in division first applies only when COMELEC is
asked to exercise adjudicatory function (QJ). Hence, when exercising purely administrative
function, need not be in division. Correction of manifest errors involves purely administrative
function only.

Review of COMELEC Resolution

131. What is contemplated by the term “final orders, rulings and decisions of the COMELEC”
reviewable by certiorari by the Supreme Court are those rendered in actions or proceedings
before the COMELEC in the exercise of its adjudicatory or quasi-judicial power. COMELEC’s
Resolution regulating conduct of Plebiscite is administrative, not adjudicatory. (Salva vs.
Makalintal [2000])

Moreover, this decision must be a final decision or resolution of the Comelec en banc, not of a
division, certainly not an interlocutory order of a division. The Supreme Court has no power to
review via certiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections. (Cagas vs. Comelec [2012], citing Ambil vs. Comelec [2000])

Jurisdiction of Electoral Tribunal

132. Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member
of the House of Rep., the jurisdiction of the HRET begins over election contests relating to his
election, returns, and qualifications, and mere allegation as to the invalidity of her proclamation
does not divest the Electoral Tribunal of its jurisdiction. (Limkaichong vs. Comelec [2009]; see also
Jalosjos vs. Comelec [2012])). The Codilla Doctrine [2002] applies only when the proclamation itself is
void as when due process had not been observed, in which case, the Comelec will not be divested
of its jurisdiction despite the fact that a proclamation had been made.

Material Misrepresentation

133. The material misrepresentation contemplated by Section 78 of the Omnibus Election Code refers
to qualifications for elective office. However, it could not have been the intention of the law to
deprive a person of such a basic and substantial political right to be voted for a public office upon
just any innocuous mistake. 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])
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Violation of the three-term limit rule is a ground for disqualification under Sect. 78 of the OEC as
it affects eligibility to hold public office. (See: Aratea vs. Comelec [2012])

“Section 78 Petition” vs. “Section 68 Petition”

134. A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of OEC, or
Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can
only be grounded on a statement of a material representation in the said certificate that is false.
The petitions also have different effects. While a person who is disqualified under Section 68 is
merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied
due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.
(Fermin vs. Comelec [2008], cited in Talaga vs. Comelec [2012])

Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding
under Section 253 of the OEC since they both deal with the eligibility or qualification of a
candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before
proclamation (within 25 days from filing of CoC), while a petition for quo warranto is filed after
proclamation of the winning candidate. A "Section 78" petition ought not to be interchanged or
confused with a "Section 68" petition. They are different remedies, based on different grounds,
and resulting in different eventualities. (Gonzalez vs. Comelec [2011])

Scope of the Doctrine of Rejection of Second Placer

135. In Labo there was no final judgment of disqualification before the elections. The doctrine on the
rejection of the second placer was applied in Labo and a host of other cases because the judgment
declaring the candidate's disqualification in Labo and the other cases had not become final before
the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the
second placer have one common essential condition — the disqualification of the candidate had
not become final before the elections. (Talaga v. COMELEC [2012])

Effects of Filing of Certificate of Candidacy

136. Two Quinto vs. Comelec cases:

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
thus violated the equal protection clause.

2010: THERE ARE SUBSTANTIAL DISTINCTIONS BETWEEN “ELECTIVE” AND


“APPOINTIVE” OFFICIALS. The former occupy their office by virtue of the mandate of the
electorate while the latter by virtue of their designation thereto by an appointing authority. The
former are obviously engaged in partisan political activities while the latter are strictly prohibited
from engaging in partisan political activity.

Thus, the rule that the filing of Certificate of Candidacy by a public officer will automatically
result in resignation applies only to appointive officials.

Substitution of Candidate

137. 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 substitute 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 [2013])

The reason for the distinction can easily be divined. Unlike death or disqualification, withdrawal
is voluntary. Generally, a candidate has sufficient time to ponder on his candidacy and to
withdraw while the printing has not yet started. If a candidate withdraws after the printing, the
name of the substitute candidate can no longer be accommodated in the ballot and a vote for the
substitute will just be wasted. (Renato M. Federico vs. Comelec, supra.)

A candidate who is disqualified under Section 68 can be validly substituted pursuant to Section
77 because he remains a candidate until disqualified; but a person whose CoC has been denied
due course to and/or cancelled under Section 78 cannot be substituted because he is not
considered a candidate. Stated differently, since there would be no candidate to speak of under a
29


denial of due course to and/or cancellation of a CoC case, then there would be no candidate to be
substituted. (Tagolino v. HRET, [2013])

Void Certificate of Candidacy; Non-application of “Rejection of Second Placer Rule”

138. A void certificate of candidacy on the ground of ineligibility that existed at the time of the filing
of the certificate of candidacy can never give rise to a valid candidacy, and much less to valid
votes. Whether the certificate of candidacy is cancelled before or after the elections is immaterial
because the cancellation on such ground means the candidate was never a valid candidate from
the very beginning, his certificate of candidacy being void ab initio. If the ineligibility existed on
the day of the filing of the certificate of candidacy, the cancellation of the certificate of candidacy
retroacted to the day it was filed (Jalosjos, Jr. vs. Comelec [2012]). In fact, even without a petition
under Section 78 of the Omnibus Election Code, the COMELEC is under a legal duty to cancel the
certificate of candidacy of anyone suffering from perpetual special disqualification to run for
public office by virtue of a final judgment of conviction. The final judgment of conviction is
judicial notice to the COMELEC of the disqualification of the convict from running for public
office. (see: Aratea vs. Comelec [2012]; see also Dimapilis vs. Comelec [2017] where the perpetual
disqualification to hold public office was the accessory penalty to an administrative penalty under the Civil
Service Law.)

139. Decisions holding that the second-placer cannot be proclaimed winner if the first-placer is
disqualified or declared ineligible should be limited to situations where the certificate of
candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled
because of a violation of law that took place, or a legal impediment that took effect, after the filing
of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the
person who filed such void certificate of candidacy was never a candidate in the elections at any
time. All votes for such non-candidate are stray votes and should not be counted. Thus, such
non-candidate can never be a first-placer in the elections. (Ibid.; see also Chua vs. Comelec [2016] on
ineligibility on ground of residency and Diambrang vs. Comelec [2016] on the ineligibility on the ground
of being a fugitive from justice. In both these cases, the Rejection of the Second Placer Rule was not applied
and the supposed second placer was declared winner.)

Note: In Talaga vs. Comelec [2012] the COC of the original candidate (who was later on
substituted) was declared void ab initio for violating the three-term limit rule. The substitution
was therefore consequently deemed invalid because substitution of a candidate presupposes a
valid candidate. Under this peculiar circumstance, it cannot be said that the electorates were
aware of the ineligibility of the substitute. The second placer, therefore, cannot be declared
winner. The only time that a second placer is allowed to take the place of a disqualified winning
candidate is when two requisites concur, namely: (a) the candidate who obtained the highest
number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that
candidate's disqualification as to bring such awareness within the realm of notoriety but the
electorate still cast the plurality of the votes in favor of the ineligible candidate.

However, in Maquiling vs. Comelec (2013), the Supreme Court ruled that the element of
“electorates’ awareness” of the disqualification of the proclaimed candidate in order for the
second placer to be declared winner [a rule taken from Labo (1992)] was a mere obiter dictum.
Interestingly, the Supreme Court did not say in Maquiling that Talaga’s use of “electorates’
awareness” was erroneous. Maquiling involved a candidate who was disqualified by reason of
dual allegiance while Talaga involved a candidate disqualified for not having validly substituted
a candidate who earlier withdrew his certificate of candidacy.

Duty of Comelec to cancel COC of disqualified candidate

140. Under Section 2 (1), Article IX (C) of the 1987 Constitution, the COMELEC has the duty to
"[e]nforce and administer all laws and regulations relative to the conduct of an election x x x."
The Court had previously ruled that the COMELEC has the legal duty to cancel the CoC of
anyone suffering from the accessory penalty of perpetual disqualification to hold public
office, albeit, arising from a criminal conviction. Considering, however, that Section 52 (a), Rule
10 of the Revised Rules on Administrative Cases in the Civil Service similarly imposes the
penalty of perpetual disqualification from holding public office as an accessory to the penalty of
dismissal from service, the Court sees no reason why the ratiocination enunciated in such earlier
criminal case should not apply here. (Dimapilis v. Commission on Elections, G.R. No. 227158, [April
18, 2017])
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Remedies against Disqualified Candidates

141. (A) Petition for Disqualification. The grounds are under Sections 12 and 68 of the OEC and Section
40 of the LGC of 1991. The Petition shall be filed any day after the last day for filing of certificates
of candidacy, but not later than the date of proclamation. (Albania v. Commission on Elections, G.R.
No. 226792, [June 6, 2017])

(B) Petition to Deny Due Course or Cancel COC. The ground is “material misrepresentation”. The
Petition must be filed within five (5) days from the last day for filing of certificate of candidacy;
but not later than twenty-five (25) days from the time of filing of the certificate of candidacy
subject of the Petition. In case of a substitute candidate, the Petition must be filed within five (5)
days from the time the substitute candidate filed his certificate of candidacy. (Albania v.
Commission on Elections, supra.). Hence, the remedy against a disqualified candidate by reason of
the three-term limit rule is a Petition to Deny Due Course or Cancel COC, not Petition for
Disqualification.

Premature Campaign

142. Two Penera vs. Comelec cases:

September 2009: A person, after filing his/her COC but prior to his/her becoming a candidate
(thus, prior to the start of the 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.

November 2009: 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 that “any person who files 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.” … 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.

Election Contests

143. 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 [2005])

144. Intervention of a rival candidate in a disqualification case is proper when there has not yet been
any proclamation of the winner. (Maquiling v. Commission on Elections (2013)

Public International Law

Jus Cogens; Erga Omnes Norms

145. Under Art. 53, Convention on the Law of Treaties (Vienna, 1969), a treaty or treaty provision is
void if it conflicts with a peremptory norm of general international law, “a norm accepted and
recognized by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character”. This norm is called Jus Cogens. Examples of jus
cogens rules are prohibition on the use of force, of genocide, slavery, gross violation of the right of
people to self-determination, racial discrimination, and torture.

Erga Omnes norms, on the other hand, are obligations of a state to the international community.
Examples of erga omnes norms are the obligations not to commit/fail to punish International
crimes and not to violate people’s right to self-determination.
31

Decision Ex Aequo Et Bono

146. As a rule, a judge or arbitrator can always use equity to interpret of fill gaps in the law, even
when he has not been expressly authorized to do so. But, he may not give a decision “ex aequo et
bono” (a decision in which equity overrides all other rules) unless he has been expressly
authorized to do so by the parties.

Under Article 38 (2) of the Statute of the International Court of Justice, the list of sources of
international law under Article 38(1) “shall not prejudice the power of the Court to decide ex
aequo et bono if the parties agree thereto”.

Relationship between International Law and Municipal Law

147. Under the Doctrine of Incorporation, rules of international law form part of the law of the land and
no further legislative action is needed to make such rules applicable in the domestic sphere. This
is the by-product of Monism Theory which perceives international law and domestic law as
belonging to one and the same system of law. In the Philippines, only the “generally accepted
principles of international law” form part of the law of the land without need of government
action. Thus, a treaty that does not contain generally accepted principle of international law,
forms part of the law of the land only when ratified by the President and concurred in by the
Senate.

The Doctrine of Transformation allows international law to form part of the law of the land only
through an affirmative act by the government, usually in the form of legislation. Treaties become
part of the law of the land through transformation pursuant to Article VII, Section 21 of
the Constitution which provides that "[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the Senate." Thus,
treaties or conventional international law must go through a process prescribed by
the Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts. (Wilson v. Ermita, G.R. No. 189220, [December 7, 2016])

Sources of International Law

148. Article 38(1) of the Statute of International Court of Justice lists down the sources of international
law that the ICJ will apply, thus:

Primary Sources:
International conventions, whether general or particular, establishing rules expressly
recognized by the contesting States;
International custom, as evidence of a general practice accepted as law
General principle of law recognized by civilized nations

Subsidiary Sources:
Judicial decisions and teachings of the most highly qualified publicists of the various
nations

Treaties as sources of public international law

149. Treaties are agreements between and among States, by which parties obligate themselves to act,
or refrain from acting, according to the terms of the treaty. Rules regarding treaty procedure and
interpretation are defined in the Vienna Convention on the Law of Treaties (VLCT). Article 26
sets out the fundamental principle relating to treaties, pacta sunt servanda, which provides, “Every
treaty in force is binding upon the parties to it and must be performed by them in good faith.”
Once a State becomes a party to a treaty, it is bound by that treaty. Article 34 provides that a
treaty does not create rights or obligations for State that are not parties to the treaty. But, even if a
State is not party to a treaty, the treaty may serve as evidence of customary international law.
Article 38 of the VCLT recognizes this “back-door” means by which a treaty may become binding
on non-parties.

Customary International Law

150. For international law to be customary, two (2) elements are required: (1) widespread state
practice [except in the case of “instant” customary law] and (2) opinio juris sive necesitatis – the
mutual conviction that the recurrence (of state practice) is the result of an obligatory or
32


compulsory rule.

Secondary Sources

151. “Teachings” refers simply to the writings of learned scholars. This does not refer, however, to
every single published article on international law. The provision is expressly limited to
teachings of “the most highly qualified publicists” such as Grotius, Lauterpacht, and Brownlie.

Persistent Objector or Dissenter Doctrine

152. A state, that from the outset consistently objects to a particular practice, is not bound by any rule
of alleged customary international law which may arise from the practice. (UK vs. Norway, ICJ
Report, 1951)

Subjects and Objects of International Law

153. “Subjects” of international law are those that enjoy international legal personality and being
capable of possessing international rights and duties, including the right to bring international
claims. States are primarily the subjects of international law. However, modern international law
has recognized secondary subjects of international law such as International Organizations (e.g.
UN, WTO), individuals (protected persons of IHL, insurgents and national liberation movements,
minorities), juridical persons (multinational companies), and NGOs (e.g. ICRC, Greenpeace,
Amnesty Int’l.).

International Organizations are established through the agreements by States (e.g. UN). It is
different from NGOs which are established by individuals or private organizations (e.g.
Greenpeace and Amnesty International). See Reparation for Injuries Case” (ICJ) where UN was
recognized as having legal personality to espouse a claim in behalf of its officer.

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”) [See: Reparation
for Injuries Case)

“International legal personality” means “the ability to possess international rights and duties and
the power to sustain these rights by bringing international claims”.

Individuals and Companies are generally considered “objects” of international law, especially
insofar as international rights are concerned. (Cf. “espousal claims” by States; “right to self-
determination”). Insofar as international duties are concerned, however, they may be called
“subjects” of international law to the extent that their breach of international law is
internationally actionable as in the case of military commanders held liable for violation of
international humanitarian law.

Inviolability of Diplomatic Mission

154. 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]). Thus, in Tehran Hostages Case [ICJ, 1980], the
ICJ found Iran to have violated the provisions of the Vienna Conventions on Diplomatic and
Consular Relations (1961, 1963) as it failed, as receiving State, to take appropriate steps to ensure
the protection of the United States Embassy and Consulates, their staffs, archives, means of
communication, and freedom of movement. These obligations are even customary.

155. 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.
33


Personal and Functional Immunity of Diplomatic Officials

156. In terms of personal 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 and the only remedy available to 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 extends to “arrests” and “detentions”.

As for Consuls, however, although they enjoy more or less the same immunities and privileges as
diplomats, their immunity from criminal and civil jurisdiction extends to their official acts only.

Treaty

157. A treaty for purposes of the application of the 1969 Vienna Convention on the Law of Treaties
(VCLT) is “an international agreement concluded between States in written form and governed
by international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation.”

Consent to be bound

158. Consent of a State to be bound by a treaty may be expressed by signature, exchange of


instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other
means if so agreed (Art. 11, VCLT). Ratification occurs only when instruments of ratification are
exchanged between the contracting states or are deposited with the depositary. (Arts. 2 (1)(b) &
16, VCLT)

Entry into force

159. Generally, a treaty enters into force generally as soon as all negotiating states have expressed
their consent to be bound by it, unless otherwise stipulated. 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 or has
exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until
it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its
consent to be bound by the treaty, pending the entry into force of the treaty and provided that
such entry into force is not unduly delayed (Art. 18, VCLT).

Reservation

160. Reservation is “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.” (Article (2)(1)(d), VCLT).
Reservation is allowed only when it is accepted by all the states which had signed (not
necessarily ratified) or adhered to the treaty.

Treaty vs. Executive Agreement

161. In international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the functionaries have remained within their
powers. International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations. In the Philippines, we
distinguish a treaty from an international agreement for the purpose of determining whether
ratification by the President requires the concurrence of the Senate. In our jurisdiction, we have
recognized the binding effect of executive agreements even without the concurrence of the Senate
or Congress. (BAYAN vs. Zamora [2000])

162. The terms "exchange of notes" and "executive agreements" have been used interchangeably,
exchange of notes being considered a form of executive agreement that becomes binding through
executive action. On the other hand, executive agreements concluded by the President
"sometimes take the form of exchange of notes and at other times that of more formal documents
denominated 'agreements' or 'protocols.'” Concurrence of the Senate is not required in executive
agreements, such as the “RP-US Non Surrender Agreement”. (Bayan Muna vs. Romulo [2011])
34


Signature; Ratification; Role of Senate

163. The signing of the treaty and the ratification are two separate and distinct steps in the treaty-
making process. The signature is primarily intended as a means of authenticating the instrument
and as a symbol of the good faith of the parties. It is usually performed by the state's authorized
representative in the diplomatic mission. Ratification, on the other hand, is the formal act by
which a state confirms and accepts the provisions of a treaty concluded by its representative. It is
generally held to be an executive act, undertaken by the head of the state or of the government.
The power to ratify is vested in the President, subject to the concurrence of the Senate. The role of
the Senate, however, is limited nly to giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, refuse to ratify it. (Pimentel vs. Romulo
[2006])

Invocation of rebus sic stantibus

164. The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative.
There is a necessity for a formal act of rejection, usually made by the head of state, with a
statement of the reasons why compliance with the treaty is no longer required. (Santos III v.
Northwest Orient Airlines, 210 SCRA 256)

Unilateral Termination of Treaty

165. As for treaties with no exit rules: “Denunciation is not permitted unless: (1) Intended by the parties or
(2) Implied by the nature of the treaty”; 12-month notice is required in either case. Otherwise, the
party may only terminate the treaty on exclusive legal grounds such as Material Breach,
Impossibility of Performance and Fundamental Change of Circumstance. In which case, the state
must observe “notification-sommation”, “3-month notice” and “pacific means of settlement”
rules.

A party cannot invoke its internal law in order to evade compliance of treaty obligations. (see Art.
27, VCLT)

Nicaragua vs. USA (ICJ, 1986)

166. Key Principles:

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.

Legality of the Threat or Use of Nuclear Weapons Case (ICJ Advisory Opinion, 1996)

167. Key Principles:

1. General Assembly Resolutions may show the formation of opinio juris. Even if they are
not legally binding, they may sometimes have normative value.

2. A State is barred to do an act only when it is so prohibited under a treaty or customary


international law. Restriction to state’s sovereignty is not presumed.

ICJ Voting and Opinion:

Unanimous, on the principle that “there is in neither customary nor conventional international law any
specific authorization or the threat or use of nuclear weapons”;
35


11-3, on the principle that “there is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear weapons as such”;

Unanimous, on the principle that “a threat or use of force by means of nuclear weapons that is contrary
to Art. 2, par. 4 of the UN Charter and that fails to meet all the requirements of Art. 51, is unlawful”;

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 efforts
towards nuclear disarmament.

Nationality Theory

168. Nationality as a basis for exercising jurisdiction must be real and effective to give a right to a state
who has conferred it. Real and effective link with the state of nationality necessary. Right to
diplomatic protection and protection by means of international judicial proceedings only arises
when proper nationality link exist between the individual concerned and the state seeking to
exercise such rights. [see Nottebohm Case (Liechtenstein vs. Guatemala, ICJ, 1955) on “Effective
Nationality Theory”]

State Immunity

169. Which agency of the Executive Branch can make a determination of immunity from suit, which
may be considered as conclusive upon the courts? The Supreme Court in Department of Foreign
Affairs (DFA) v. National Labor Relations Commission (NLRC) (1996) emphasized the DFA's
competence and authority to provide such necessary determination. The DFA's function includes,
among its other mandates, the determination of persons and institutions covered by diplomatic
immunities, a determination which, when challenge, (sic) entitles it to seek relief from the court
so as not to seriously impair the conduct of the country's foreign relations. This authority is in
fact exclusive to the DFA. (China National Machinery & Equipment Corp. vs. Santamaria [2012])

170. Under the Restrictive theory of State Immunity (also known as the Doctrine of Qualified 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.

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 officers (Syquia v. Lopez, 84 Phil. 312 [1949]); (2) the conduct of
public bidding for the repair of a wharf at a United States Naval Station (United States of America
v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders v. Veridiano,
162 SCRA 88 [1988]) and the following transactions as acts jure gestionis: (1) the hiring of a cook in
the recreation center, consisting of three 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 (United States of America v. Rodrigo, 182 SCRA 644 [1990]; and (2) the bidding for
the operation of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto,
182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general
public is undoubtedly for profit as a commercial and not a governmental activity. By entering
into the employment contract with the cook in the discharge of its proprietary function, the
United States government impliedly divested itself of its sovereign immunity from suit. (see Holy
See, The v. Rosario, Jr., 238 SCRA 524)

Take note also of the following cases:

Republic of Indonesia vs. Vinzon (2003): The mere entering into a contract by a foreign State with a
private party cannot be construed as the ultimate test of whether or not it is an act jure imperii or
jure gestionis. The State may enter into contracts with private entities to maintain the premises,
furnishings and equipment of the embassy and the living quarters of its agents and officials, and
such acts are public acts.
36

WHO vs. Aquino (1972): Officer of WHO assigned in the Philippines was entitled to diplomatic
immunity pursuant to the Host Agreement executed on July 22, 1951 between the Philippine
Government and the World Health Organization.

Minucher vs. CA (2003): A foreign agent (DEA), operating within a territory, can be cloaked with
immunity from suit when it can be established that he is acting within the directives of the
sending state and when the Philippines has given imprimatur to his presence here.

Liang vs. People (2000): the commission of a crime (slander) is not part of official duty. ADB’s
immunity covers “official duty”.

Immunity of Head of State; Former Head of State; Foreign Ministers

171. Presidential immunity from suit exists only in concurrence with the president's incumbency.
Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president
even for acts committed during his or her tenure. Courts look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for truth or impairs the vindication
of a right. (In re: Petition for Writ of Amparo in favor of Francis Saez, Saez vs. Gloria Macapagal-Arroyo
[2012])

172. The House of Lords of UK ruled that “the absolute prohibition of torture, a jus cogens norm,
overrides immunity afforded to a former Head of State in criminal proceedings. The commission
of a crime against humanity and jus cogens cannot be done in an official capacity on behalf of a
state.” (see In re: Pinochet [House of Lords of UK, 2001])

173. Do head of state immunities apply to foreign ministers even for international crimes?
Answer: 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.). This immunity ratione
personae extended to current foreign ministers is justified by the fact that they too exercise
diplomatic functions similar to heads of states and ambassadors. (see Democratic Republic of Congo
vs. Belgium [ICJ, 2002])

Extradition

174. Extradition is the “process by which persons charged with or convicted of crime against the law of
a State and found in a foreign State are returned by the latter to the former for trial or
punishment. It applies to those who are merely charged with an offense but have not been
brought to trial; to those who have been tried and convicted and have subsequently escaped from
custody; and those who have been convicted in absentia. It does not apply to persons merely
suspected of having committed an offense but against whom no charge has been laid or to a
person whose presence is desired as a witness or for obtaining or enforcing a civil judgment.”
(Puno in Sec. of Justice vs. Lantion [2000]).

Under international law there is no duty to extradite in the absence of treaty, whether bilateral or
multilateral. (Billot)

The prohibition against ex post facto law applies only to criminal legislation which affects the
substantial rights of the accused. This being so, there is no merit in the contention that the ruling
sustaining an extradition treaty’s retroactive application violates the constitutional prohibition
against ex post facto laws. The treaty is neither a piece of criminal legislation nor a criminal
procedural statute. (Wright v. CA, 235 SCRA 341)

175. Deportation is different from extradition because deportation is unilateral act of a state and does
need a treaty. Destination of deportee is irrelevant in deportation, unlike in extradition.

176. Under the rule of specialty in international law, a Requested State shall surrender to a Requesting
State a person to be tried only for a criminal offense specified in their treaty of extradition.
Conformably with the dual criminality rule embodied in the extradition treaty between the
Philippines and the Hong Kong Special Administrative Region (HKSAR), however, the
Philippines as the Requested State is not bound to extradite the respondent to the jurisdiction of
the HKSAR as the Requesting State for the offense of accepting an advantage as an
agent considering that the extradition treaty is forthright in providing that surrender shall only be
granted for an offense coming within the descriptions of offenses in its Article 2 insofar as the
37


offenses are punishable by imprisonment or other form of detention for more than one year, or
by a more severe penalty according to the laws of both parties. (Government of Hong Kong Special
Administrative Region v. Muñoz, G.R. No. 207342 (Resolution), [November 7, 2017])

International Human Rights Law

177. The Three (3) “Generations” or “Categories” of Human Rights are:

A. UN Universal Declaration of Human Rights


1. Civil and Political Rights
2. Economic, Social and Cultural Rights

B. Opinions of Publicists

3. Right to Peace, Self-Determination, common heritage of mankind


principle, environment, development, minority rights

178. The Universal Declaration of Human Rights by the UN is not a legally binding instrument as it
merely recommends states to keep it in mind in the enactment of legal measures. However, if the
particular right mentioned there has already ripened into a customary international law (e.g.
torture, slavery, racial discrimination), violation of the human right becomes a “matter of
international concern” that allows criminal prosecution.

Use of Force (Jus Ad Bellum)

179. Art. 2(4) of the UN Charter prohibits “use of force” and “threat to use force”; customary
international law (see Nicaragua vs. US [ICJ, 1996]); note: Retorsion & Reprisal are coercive
measures short of war.

180. Any use of force/threat to use force may only be lawful if done with the collective decision of the
UN in cases of threats to peace, breaches of peace, or acts of aggression [Chapters V-VII,UN
Charter] (including against international terrorism, threats posed by weapons of mass
destruction, and on humanitarian grounds [R2P]); cf: Art. 2(7) as limitation.

181. States can only justify use of force in case of self-defense as recognized in Art. 51 of the UN
Charter (Individual or Collective Self-defense [see Arts. 52-53] until the Security Council has
taken measures; the State exercising right of self-defense must report the measures taken to the
Security Council; Self-Defense must comply with the requirements of (1) presence of “armed
attack” and (2) observance of the principles of “proportionality” and “military necessity”.

182. Only “high level use of force or aggression” will justify use of force by way of self defense.
Hence, recruiting, training, supplying arms and ammunitions and logistical support and funding
by a state of an armed group in another state will not constitute “armed aggression” to warrant
defensive use of force. Examples of “high level use of force” are the sending of troops in the
territory of another or mere overflight by government war planes. (see Nicaragua vs. US [1996])

International Humanitarian Law (Jus in Bello)

183. In International Humanitarian Law (IHL), which regulates the conduct of war to protect civilians
and civilian objects, an armed conflict exists whenever there is a resort to armed force between States
or protracted armed violence between governmental authorities and organized armed groups or between
such groups within a State. The kinds of wars that render International Humanitarian Law (IHL)
applicable are: 1. International Armed Conflict and 2. Non-international Armed Conflict.

An armed conflict is international if it takes place between two or more States. This includes the
concept of “internationalized armed conflict”. “Wars of National Liberation” are considered
International Armed Conflict.

Article 1(4) of AP I provides that armed conflicts in which peoples are fighting against colonial
domination, alien occupation or racist regimes (wars of national liberation) are to be considered
international conflicts. International armed conflicts are governed by the Geneva Conventions
and Additional Protocol (AP) I.

Armed conflict is non-international if it is restricted to the territory of a single State involving


either regular armed forces fighting against armed group or armed groups fighting each other. The armed
38


violence must be “protracted” and engaged in by “organized groups”, thus, mere riots are not
covered. Non-international armed conflicts are governed by Common Article 3 of the 4 Geneva
Conventions and Additional Protocol (AP) II.

184. The “core crimes” in IHL are those that are within the jurisdiction of the International Criminal
Court (ICC), governed by the Rome Statute (July 1, 2002), thus:

Genocide
Crimes Against Humanity
War Crimes
Crime of Aggression

185. IHL protects (1) civilians and (2) civilian objects. Civilians are persons who do not belong to
armed force and who are not combatants. Civilian Objects are objects which are not military
objectives. “Military Objects” are those which by their nature, location, purpose or use make
effective contribution to military action and advantage.

The Principle of Complementarity

186. The ICC is constituted as an ultima ratio jurisdiction, with competency only as a result of the total
inactivity or inefficiency of national jurisdictions, whether because of unwillingness or inability to
prosecution core crimes under the Rome Statute.

Peoples’ Right to Self-Determination

187. It is a customary international law; a jus cogens and erga omnes norm.

Set out in Art. 1(2) and Art. 55 of the UN Charter, Art. 2 of G.A. Resolution entitled Declaration
on the Granting of Independence (1960) [“All peoples have the right to self-determination; by virtue of
that right they freely determine their political status and freely pursue their economic, social and cultural
development”]; in ICCPR and ICESCR, and in 1970 Declaration on Friendly Relations of the G.A..

188. Article 1(4) of Protocol I of the 1949 Geneva Conventions make the laws of international armed
conflict applicable to "armed conflicts in which peoples are fighting against colonial domination
and alien occupation and against racist regimes in the exercise of the right of self-determination.”

Any group within a territory claiming to be fighting against colonial domination, alien
occupation or a racist regime (national liberation movement) is now protected by the laws of war,
and that its members are entitled to prisoner-of-war status.

The problem of “Secession” vis-à-vis State’s Right to Territorial Integrity

189. Opinion of the Supreme Court of Canada in re: Secession of Quebec [1998]:

-Secession is not authorized by the Constitution of Canada;


-International law does not specifically authorize nor prohibit unilateral secession;
-But, states have the implied duty to recognize peoples’ “right to self-determination”;
-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-determination”) vs.
“right to external self-determination” (unilateral secession).
-“the international law right to self-determination only generates, at best, a right to external self-
determination in situations of former colonies; where a people is oppressed, as for example under
foreign military occupation; or where a definable group is denied meaningful access to
government to pursue their political, economic, social, and cultural development” (meaning,
where the people have been denied the right to internal self-determination)

Principle of “uti possidetis juris”

190. A general rule of international law, it states that the boundaries of colonial territories ought to
become international boundaries when those territories attained independence unless altered by
agreement.

The principle of “uti possidetis juris”, which was developed in South America in connection with
the independence of states from Spain and Portugal, was also adopted in 1964 by the
39


Organization of African Unity which states that “all member states pledge themselves to respect the
borders existing on their achievement of national independence”.

Recognition of Government

191. Recognition of government is a political question.

Theories:

1. Tobar or Wilson Doctrine: precludes recognition of any government established by


revolutionary means until constitutional reorganization by free election of
representatives.
2. Stimson Doctrine: no recognition of a government established through external
aggression. (adopted by the League of Nations)
3. Estrada Doctrine: if a government was established through political upheaval, a state may
not issue a declaration giving recognition to such government, but may merely accept
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 government.

Effects of Recognition

192. Before recognition, the rebels are subject to the municipal laws of the legitimate government and
responsibility attaches to the government for any damage the rebels may cause third states;

After recognition, the belligerent community is treated as an “international person” for purposes of
the conflict and will be governed by the “laws of war” in its dealings with the government; the
latter will not be held liable for any damage the rebels may cause third states; third states must
observe neutrality.

State Responsibility

193. Principle of Attribution or Imputability Doctrine: A State is liable only for its own acts and
omissions, and in this context, the State is identified with its governmental organs and apparatus,
not with the population (nor with private [vs. ultra vires] acts of government agents).

Espousal of Claims

194. From a Domestic Law Perspective, the
Executive Department has the exclusive
prerogative to
determine whether to
espouse petitioners' claims against
Japan. The Philippines is not under
any
international obligation to espouse
petitioners' claims. The International Law Commission's
(ILC's) Draft Articles on Diplomatic Protection fully support this traditional view. They (i) state
that "the right of diplomatic protection belongs to or vests in the State," (ii) affirm its discretionary
nature by clarifying that diplomatic protection is a "sovereign prerogative" of the State; and (iii)
stress that the state "has the right to exercise diplomatic protection on behalf of a national. It is
under no duty or obligation to do so." (Vinuya vs. Romulo [2010])

International Criminal Law

195. Superior Responsibility – makes a “superior” criminally responsible for crimes committed by
subordinates under his or her effective authority and control by reason of his or her failure to
exercise control properly over such subordinates. The concept is generic as to encompass
“Command Responsibility” which is applicable only to military commanders.

Command Responsibility is also known as the “Yamashita Standard” or “Medina Standard”.

Command Responsibility in Philippine Law

196. The doctrine of command responsibility may be used to determine whether respondents in Writ
of Amparo cases are accountable for and have the duty to address the abduction of the victim in
order to enable the courts to devise remedial measures to protect his rights. Nothing precludes
the Court from applying the doctrine of command responsibility in amparo proceedings to
ascertain responsibility and accountability in extrajudicial killings and enforced disappearances.
That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or
administrative liability should not abate the applicability of the doctrine of command
40


responsibility. (In re: Petition for Writ of Amparo in favor of Rodriguez, Rodriguez vs. Gloria Macapagal-
Arroyo [November 2011], J. Sereno, reversing ruling of SC on this point in Rubrico vs. Gloria Macapagal-
Arroyo [2010]); (see also In re: Petition for Writ of Amparo in favor of Francis Saez, Saez vs. Gloria
Macapagal-Arroyo [2012])

The inapplicability of the doctrine of command responsibility in an amparo proceeding does not,
by any measure, preclude impleading military or police commanders on the ground that the
complained acts in the petition were committed with their direct or indirect acquiescence.
Commanders may therefore be impleaded — not actually on the basis of command responsibility
— but rather on the ground of their responsibility, or at least accountability. (Balao vs. Gloria
Macapagal-Arroyo [December 2011], J. Villarama; Note: J. Sereno Dissented on the non-use of the term
“command responsibility”; Note also of In re: Petition for Writ of Amparo in favor of Francis Saez, Saez
vs. Gloria Macapagal-Arroyo [2012]), where the SC used again the terminology of “command
responsibility” in Rodriguez).

Command Responsibility as applied to the President

197. The President, as commander-in-chief of the military, can be held responsible or accountable for
extrajudicial killings and enforced disappearances.

To hold someone liable under the doctrine of command responsibility, the following elements
must obtain:

a. the existence of a superior-subordinate relationship between the accused as


superior and the perpetrator of the crime as his subordinate;

b. the superior knew or had reason to know that the crime was about to be or
had been committed; and

c. the superior failed to take the necessary and reasonable measures to prevent
the criminal acts or punish the perpetrators thereof.

The president, being the commander-in-chief of all armed forces, necessarily possesses control
over the military that qualifies him as a superior within the purview of the command
responsibility doctrine. (In re: Petition for Writ of Amparo in favor of Rodriguez, Rodriguez vs. Gloria
Macapagal-Arroyo, J. Sereno, supra.)

Presidential immunity from suit exists only in concurrence with the president's incumbency.
Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president
even for acts committed during his or her tenure. Courts look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for truth or impairs the vindication
of a right. (In re: Petition for Writ of Amparo in favor of Francis Saez, Saez vs. Gloria Macapagal-Arroyo
[2012])

International Environmental Law

198. The “Trail Smelter case” (1965): “ “No State has the right to use or permit the use of its territory in such
a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein,
when the case is of serious consequence and the injury is established by clear and convincing evidence.”

199. First major international environmental conference was convened by the UN GA in Stockholm
(Sweden) in 1972 that later resulted to the adoption of certain environmental Principles.

Basic Principles:

1. “Principle of State Responsibility” or “Responsibility and Prevention” (Principle 21,


Stockholm Declaration)

-"States have in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to
their own environmental policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction.”

Principle 21 focuses on transboundary harm or State responsibility.


41

2. “Intra- and inter-generational Responsibility” (Principle 3, Rio Declaration):

-“The right to development must be fulfilled so as to equitably meet


developmental and environmental needs of present and future generations.”

[Related to the principle of “Common but Differentiated Principle”]

3. “Conservation of Resources” (Principle 8, Rio Declaration):

-States must “reduce and eliminate unsustainable patterns of production and


consumption and promote appropriate demographic policies”.

4. “Integration” (Principle 4, Rio Declaration):

-“In order to achieve sustainable development, environmental protection shall


constitute an integral part of the development process and cannot be considered
in isolation from it.”

5. “Precautionary Principle” (Principle 15, Rio Declaration):

-“In order to protect the environment, the precautionary approach shall be


widely applied by states according to their capabilities. Where there are threats
of serious or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent
environmental degradation.”

6. “Polluter-Pays Principle” (Principle 16, Rio Declaration)

It embodies the idea that “those who create environmental damage should pay
for its remediation or clean-up”. It is understood that requiring the polluters to
bear the full cost of their pollution will provide an incentive for the minimization
of pollutant production.

7. “Common But Differentiated Principle” [CBDP] (Principle 7, Rio Declaration):

"In view of the different contributions to global environmental degradation,


States have common but differentiated responsibilities. The developed countries
acknowledge the responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies place on the
global environment and of the technologies and financial resources they
command.”

-the principle establishes a conceptual framework for an equitable allocation


of the costs of global environmental protection.

200. Climate Change Regimes:

1. United Nations Framework Convention on Climate Change (UNFCCC) = with the


objective of “stabilization of greenhouse gas concentrations in the atmosphere at a level
that would prevent dangerous anthropogenic interference with the climate system”.

2. Kyoto Protocol = imposes targets and timetables for greenhouse gas reduction,
especially in developed countries.

201. “Climate Justice”

— Contained in the 2015 Paris Agreement/Accord which is within the UNFCCC (greenhouse gases
emissions mitigation, adaptation and finance beginning 2020) which the Philippine
representative signed in 2015 and due for ratification by the President;
— By “climate justice”, it means that human rights and development must be linked to achieve a
human-centered approach, safeguarding the rights of the most vulnerable and sharing the
burdens and benefits of climate change and its resolution equitably and fairly.
— Very much related to “CBDR Principle” (Common But Differentiated Responsibilities Principle)
42

Law of the Sea

202. RA 9522 (Baseline Law) is not Unconstitutional. RA 9522 is a Statutory Tool
to Demarcate the
Country's
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate
Philippine Territory. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is
a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from
the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental
shelves that UNCLOS III delimits. UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through occupation,
accretion, cession and prescription, not by executing multilateral treaties on the regulations of
sea-use rights or enacting statutes to comply with the treaty's terms to delimit maritime zones
and continental shelves. (Magallona vs. Ermita [2011])

RA 9522's Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the
KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines' Claim of
Sovereignty
Over these Areas. The configuration of the baselines drawn under RA 3046 and RA
9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least
nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length
of one baseline (and thus comply with UNCLOS III's limitation on the maximum length of
baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of
the baselines drawn around the Philippine archipelago. (Magallona vs. Ermita [2011])

203. Internal waters include ports, harbors, rivers, lakes and canals. The coastal state can prohibit entry
into its internal waters by foreign ships, except for ships in distress. When already within internal
waters, different legal questions arise depending on the kind of vessel that is within the internal
water: merchant ships, warships, other foreign non-commercial ships.

The territorial sea of a state does not exceed twelve (12) n. m. from the “baseline”. The baselines
are based either on (1) Normal Baseline (Low-Water Mark Method), and (2) Straight Baseline
Method. The territorial sea is subject to the “Right of Innocent Passage” by foreign ships. It is
innocent if not prejudicial to the peace, good order or security of the coastal state. Fishing vessels
must comply with local laws and submarines must navigate on the surface and show their flag.

The contiguous zone of a state does not exceed twenty-four (24) n.m. from the baseline. The coastal
State is limited to Protective Jurisdiction only, that is, to prevent infringement of its customs,
fiscal, immigration or sanitary regulations.

The Exclusive Economic Zone (EEZ) does not exceed two hundred (200) n.m. from the baseline. The
coastal state has sovereign rights over all the economic resources of the sea, seabed, and subsoil
which include not only fish but also minerals beneath the seabed. However, if the coastal state is
unable to fully exploit the resources, it must make arrangement to share the surplus with other
states.

The High Seas extend beyond 200 n.m. from the baseline. It may be used freely by ships of all
nations (including land-locked states). ”Freedom on the high seas” includes: freedom of
navigation, freedom of fishing, freedom to lay submarine cables and pipelines and freedom to fly
over the high seas. These freedoms are, however, subject to certain conventions and agreements.

As a rule, ships in the high seas are governed only by (1) international law and (2) law of the flag
state. The “Flag of the State” refers to the nationality of the flag, which is determined by the place
of registration. A ship can only use one flag. ”Flags of Convenience” are countries that allow
registration of a ship for a fee.

The continental shelf refers to the seabed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 n. m. from the baselines, where the outer edge of the
continental margin does not extend up to that distance. The state has exclusive right over natural
resources in the continental shelf.

The extended continental shelf reaches 350 n. m. from the baseline where the continental margin
extends beyond 200 n. m.; or up to a maximum of 100 n.m. from the 2,500 meter isobaths (Par. 5,
Art. 76, UNCLOS III).
43

Under the “Median Line” principle, the coasts of two states are opposite or adjacent to each other,
neither of them is entitled, failing agreement between them to the contrary, to extend its
territorial sea beyond the median line every point of which is “equidistant” from the nearest
points on the baselines. This is also applicable in the case of continental shelf. The median line
principle is, however, subject to exceptions such as Historic title or other special circumstances.

204. Jurisdiction of the Permanent Court of Arbitration (PCA); (RP vs. PROC [PCA, 2016])

◦ Part XV, UNCLOS III: “States Parties shall settle any dispute between them concerning…. of
this Convention by peaceful means in accordance with …. of the Charter of the United Nations
and…shall seek a solution by the means indicated in Art. 33, par. 1, of the Charter (negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, arrangements, and other peaceful
means).
◦ Choice of Procedure: 1. ITLOS, 2. ICJ, 3. Arbitral Tribunal, and 4. Special Arbitral Tribunal.
◦ PCA Jurisdiction per UNCLOS III: 1. maritime rights and entitlements, 2. status of certain
geographic features, and 3. lawfulness of activities in the South China Sea. [UNCLOS III does not
address sovereignty over land territory. PCA did not also determine maritime boundary]

205. “Historic rights”, “historic titles”, “historic waters”, “historic bays”:

— Assertion of “historic rights” (which are general in nature, and can include sovereignty and all
bundles of rights) incompatible with UNCLOS III is not permitted for the parties to the UNCLOS;
— UNCLOS permits claims to “historic titles” over maritime areas derived from historical circumstances in
maritime delimitation;
— “Historic waters” refers to historic titles over maritime waters particularly internal and territorial
waters;
— “Historic bay” refers to the bay in which a State claims historic waters. (RP vs. PROC [PCA, 2016])

206. Banks, elevations, rocks and islands:

— “Submerged banks” and “low-tide elevations” are incapable on their own of generating any
entitlements to maritime areas;
— “Rocks” which cannot sustain human habitation or economic life of their own do not generate on
their own entitlements to EEZ or CS; but they are entitled to a TS and a CZ;
— “Islands” can sustain human habitation or economic life on their own; can generate TS, CZ, EEZ
and CS. (RP vs. PROC [PCA, 2016])

Criminal Jurisdiction

207. Territorial Jurisdiction: State has jurisdiction over property, persons, acts, or events occurring
within its territory.

Subjective Territorial Principle: jurisdiction to prosecute or punish crimes commenced


within their territory but completed or consummated in the territory of another state.

Objective Territorial Principle: certain states apply their territorial jurisdiction to offenses or
acts commenced in another state, but (i) consummated or completed within their territory, or (ii)
producing gravely harmful consequences to the social or economic order inside their territory.

208. Nationality Principles in Jurisdiction

Kinds:
Active Nationality: states may regulate the conduct of their nationals wherever they are in
the world

Passive Nationality: a state may prescribe law for situations where its nationals are a
victim of the conduct being regulated; this has limited scope, usually applicable to terrorist
attacks

209. Protective Principle in Jurisdiction: a state can legislate crimes that it considers to be a threat to its
security, integrity, or economic interests. Common examples: espionage, counterfeiting. This
principle is limited to conduct that occurs outside a state’s territory, by noncitizens.
44


Note: Restatement 402: “…a state has jurisdiction to prescribe the law with respect to…(3) certain
conduct outside its territory by persons not its nationals that is directed against the security of the
state or against a limited class of other state interests.” (see: United States vs. Osama Bin Laden,
2000)

Legality of Abduction of Criminals in foreign territory

210. Abduction of criminals in the territory of another state is understood as “intervention” and
therefore violates customary law and the UN Charter (Art. 2 (4); It can only be justified if done
invoking self-defense.

But, the illegal apprehension will not affect the jurisdiction of the apprehending state unless the
defendant was secured torture, brutality, or similar outrageous conduct. (See: Ker vs. Illinois
[1886]; Frisbie vs. Collins [1952])

International Refugee Law

211. It sets of rules and procedures that aims to protect (1) persons seeking asylum from persecution
(2) persons recognized as refugees under relevant instruments; a legal regime that covers both
IHL and IHRL.

Main Sources: (1) 1951 Refugee Convention and 1967 Protocol, (2) Customary International Law
(CIL);

212. Who is a “refugee”? Answer: any person who “owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling
to avail himself of the protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence as a result of such events, is unable or, owing
to such fear, is unwilling to return to it.” (Art. 1(A)(2), 1951 Refugee Convention) vs. “asylum
seeker”

213. “Principle of Non-refoulement”: Art. 33 (Refugee Convention): “No Contracting State shall expel or
return (“refouler) a refugee in any manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion.” Already part of customary international law; also
found in Convention Against Torture, Fourth Geneva Convention of 1949; ICCPR; Declaration on
the Protection of All Persons from Enforced Disappearance; and Principles on the Effective
Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions; United Nations
High Commissioner for Refugees (UNHCR) sees to it that rights of refugees are protected and/or
promoted.

214. Refugees vs. Internally Displaced Persons (IDPs): IDPs: “persons or groups of persons who have
been forced or obliged to flee or to leave their homes or places of habitual residence, in particular
as a result of or in order to avoid the effects of armed conflict, situations of generalized violence,
violations of human rights or natural or human-made disasters, and who have not crossed an
internationally recognized State border” (1998 Guiding Principles on Internal Displacement).
There is no specific treaty instrument covering IDPs. The International Committee of the Red
Cross (ICRC) helps promote/protect the rights of IDPs.

oOo

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