Internal Self-Determination V External Self-Determination: Make Your Weakness Your Strength

Make your weakness your strength
Internal self-determination v external self-

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

An equal may not assume jurisdiction over an equal Not every contract entered into by the State is deemed a
waiver
Otherwise, it will unduly vex the peace of nations. One has to distinguish between an acta jure imperii and
acta jure gestionis
Discussion on ARIGO V. SWIFT
Damage of corals in Tubbataha Reef Acta jure imperii – NO WAIVER
Petition- writ of Kalikasan
RESTRICTIVE DOCTRINE OF STATE IMMUNITY
Will the petition prosper? Not every contract entered into by the State is deemed a
No. waiver of its immunity from because one has to distinguish
between acta jure imperii and acta jure gestionis
The USS Guardian is an American naval vessel
Under customary international law – they are extension of USA V. GUINTO
the terriroty of the State where they belong Filipino cook at Camp John Hay. That cafeteria is
operated by the American authorities
By what principle? Exterritoriality principle
Sino pang di nakapunta ng Baguio dyan? AYYY DO NOT
DISMISSED PRETEND HA!
On the ground of lack of jurisdiction: applying the doctrine
of Sovereign Equality of all states Removed as cook – yung soup - hinahaluan niya ng jingle
niya
By virtue of doctrine of incorporation, it automacally
became part of our laws Nagpunta siya sa Labor Arbiter – illegal termination case.
Page 1 of 44
US: Invoked state immunity from suit As you learned in your Oblicon, the subject matter of the
contract must NOT be outside the commerce of men.
Ruling: The cafeteria is being run as a business enterprise
So it may not be the subject of a valid contract.
It is entered into commercial or proprietary capacity – acta
jure gestionis Term-sharing agreement – common yan. Lalo na sa
party-list. That is a contract! Unenforceable [sic] in courts
SC remanded the case to the Labor Arbiter. yan.
SUABILITY of the state v. LIABILITY of the state (my dissenting opinion: VOID due to the absence of one
Suability – just matter of the state waiving its state of the essential requisites)
immunity from suit.
3. Public office is not a property.
When the state allows one to sue it, it does not - so it is not protected by the due process clause
automatically conceive liability. It merely gives the - only limitation for abolition of office: IT MUST BE DONE
claimant an opportunity to prove that he may hold the IN GOOD FAITH
state liable. The state may raise possible legal defenses
to avoid liability There can be no vested right to public office
Liability – matter of applicable law and the circumstances Removal of an officer v. Abolition of Office
of the case These are two distince modes of terminating officer-
relations
Municipality of San Fernando La Union v Judge Pirme
Driver of dump truck– collided with jeepney Abolition- it is the office itself. Wala ka nang babalikan pa.
Damages filed by heirs of victim Removal – it is only the occupant.
Invoked state immunity from suit – MTD
Dump truck holding gravel for the repair of municipal The power of Congress to create an office carries with it
roads the power to abolish
– engaged in the repair of municipal roads
- engaged in governmental functions Who are the impeachable officers?
This is now a case of damnum absque injuria 1. Pres

2. Vice pres
In the matter of execution to satisfy judgment against the 3. Members of the Supreme court
state 4. Members of the Constitutional commissions
5. Ombudsman
Enforcement This list is EXCLUSIVE.
Waiver is limited only up to the rendition of judgment
Execution of the judgment will require another WAIVER SIX GROUNDS:
GO TO THE CONGRESS – for them to make the 1. Culpable violation of the Constitution
necessary appropriation 2. Treason
- compellable by mandamus 3. Bribery
- since there is already a judgment that became final and 4. Graft and corruption
executory, it is the government that should be the first one 5. Other high crimes
to respect its Courts 6. Betrayal of public trust
PART 7 Who prosecutes?

The House of Representatives – acting as a prosecutorial
Article XI – Accountability of Public Officers body
1. Public office is a public trust. It is not a privilege. Who tries?

The Senate – must be on oath or affirmation – as judges
2. Public Office is not an inheritable possession. We are
not a monarchy. We are a democratic and republican Who shall preside? The Chief Justice
State.
Do local government units have
Prohibition on political dynasties: not self-executing Local government units do not have inherent powers.
They are mere creatures of legislature, unlike the State
2. Public office is outside the commerce of men itself
Page 2 of 44
Pork barrel: LUMP SUM DISCRETIONARY FUND

Permissible Delegation
People through plebiscite/referendum 2 kinds of pork barrel: (1) Congressional pork barrel (2)
Emergency power Presidential pork barrel
Tariff Power
Administrative Agencies Congressional – PDAF
Local governments Presidential – DAP
What are the tests for a valid delegation of power The reasons are entirely different from one another.
1. Completeness test The pork barrel system declared unconstitutional
2. Sufficient standard test
Congressional:
To see to it that there is no undue delegation of power. 1. Violated principle of Separation of Powers.
That is now an abdication of power! It will violate Limited to oversight function
separation of powers. In effect, they are the ones implementing the budget.
A delegation running riot!! Post-enactment activity in vital areas of budget execution.
Freedom of expression quote The work of Congress is only up to the enactment of GAA.
Justice Puno in the case of Iglesia ni Cristo v. CA July 26 When it comes to implementation – executive.
1996
2. Violated non-delegability of legislative/non-delegation
"The constitutional provision on religious freedom of legislative power
terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil The power of appropriation was delegated by the
immunity. Constitution to the Congress as a body, and not to the
individual members of Congress
Its essence is freedom from conformity to
religious dogma, not freedom from HINDI PWEDE YAN.
conformity to law because of religious
dogma.
3. It denied the President the power to veto items
The bedrock of freedom of religion is freedom of Sec 27 Art VI of the Constitution
thought and it is best served by encouraging the
marketplace of dueling ideas. When the luxury of 1st paragraph: the general veto of the President: If it
time permits, the marketplace of ideas demands vetoes the bill, it does not become a law
that speech should be met by more speech for it
is the spark of opposite speech, the heat of 2nd paragraph: item or line veto of the President
colliding ideas that can fan the embers of truth
2 Kinds of Presidential veto
Completeness test: 1. General Veto
There is nothing left for the delegate to do but just to 2. Item or Line veto
implement or enforce the law. The delegate may not fill in
the gaps in the law In a bill, there is no such thing as selective veto!
Either he signs the bill in toto and signs the law or he
If there is a gap in the law, what is the remedy? vetoes the bill in veto
AMEND THE LAW
Bengzon v Drilon
Who may amend?
ONLY the Congress can amend its own act. The OSG is correct when it states that the
Executive must veto a bill in its entirety or not at
Sufficient standards test all. He or she cannot act like an editor crossing
For as long as standards that will limit the authority of the out specific lines, provisions, or paragraphs in a
delegate or that will guide the delegate as long as the bill that he or she dislikes. In the exercise of the
standards are determinate or determinable veto power, it is generally all or nothing.
Part 8 However, when it comes to appropriation,
Belgica v. Ochoa – the case involving the pork barrel revenue or tariff bills, the Administration needs
system the money to run the machinery of government
and it cannot veto the entire bill even if it may
Page 3 of 44
contain objectionable features. The President is,

therefore, compelled to approve into law the
entire bill, including its undesirable parts. It is for Part 9
this reason that the Constitution has wisely Under this present Constitution, legislative power is no
provided the "item veto power" to avoid longer exclusively vested in the Congress
inexpedient riders being attached to an
indispensable appropriation or revenue measure. Sec 1 with Sec 32 – shall make an initiative and
referendum law
SANDOVAL LINES:
HOOOOOOOOOOOY WHAT LAW?
RA 6735
SO THERE YOU ARE
3 kinds of iniative
GET THE POINT? 1. on the consti
2. on the statute
CONSHTITSHYON 3. on local legislation
4. The system impaired public accountability. The 2nd one – that is the implementing – reservation made
by the people
Remember, public office is a public trust.
We have a bicameral Congress consisting of a Senate
5. In so far as it authorized legislators despite the and the House of Representatives
existence of capable local institutions… – it likewise = Bicameral Conference Committee
subverted genuine local autonomy -mechanism for compromising the differences between
the Senate and the House of Representatives
Sec. 5 Art II of the Constitution: Autonomy of local
government. After bicam- sent back to both houses
If nays won – another bicam con com will be held
DAP
ONLY REASON: Undue delegation of powers to the SEC 24 ART VI
President applying the sufficient standards test bills required to originate exclusively in the HR
“other purposes he may deem fit” APRIL

Appropriation
The transfer of appropriated funds, to be valid under Private
Section 25(5), supra, must be made upon a concurrence Revenue/Tariff
of the following requisites, namely: Bills authorizing Increase in public debts
Bills of Local application
(1) There is a law authorizing the President, the President
of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, Tolentino v Secretary of Finance
and the heads of the Constitutional Commissions to What is required to originate form HR is only the bill, not
transfer funds within their respective offices; the law
(2) The funds to be transferred are savings generated The Congress may propose or concur with amendments
from the appropriations for their respective offices; and (3)
The purpose of the transfer is to augment an item in the Representatives
general appropriations law for their respective offices. 2 kinds of rep
1. district
No first element: 2. party-list
ection 25(5), supra, not being a self-executing provision
of the Constitution, must have an implementing law for it Veterans Federation Party v. COMELEC
to be operative. That law, generally, is the GAA of a given Party-list representatives shall constitute 20% of the total
fiscal year. To comply with the first requisite, the GAAs number of rep including those under the party-list
should expressly authorize the transfer of funds
Do not just multiply it by 20%
-not savings
Just divide it by 4.
-transfer not within the executive office
Page 4 of 44
Do not round it off. If your round it off – it will exceed 20%. 2. Electoral Tribunals: SET/HRET
You will violate the Constitution that way
-on the basis of proportional representation from the
In such a case, simply DISREGARD the fraction. political parties having members in the senate or HR, as
Fractional representation is NOT allowed. the case may be
Veterans Federation Party v. COMELEC Sec 19: CoA shall meet only when Congress is in session
In Sema v. COMELEC promulgated July 16, 2008 Only What if it is not in session?
Congress can create provinces and cities because the Sec 16 Article VII – with respect to the appointing power
creation of provinces and cities necessarily includes the of the President
creation of legislative districts, a power only Congress can
exercise under Section 5, Article VI of the Constitution and Ad interim- appointment made when Congress is on
Section 3 of the Ordinance appended to the Constitution. recess, whether voluntarily or compulsory or when
Congress is not in session
Ang Bagong Bayani
Social justice tool That is because COA shall meet only when Congress is
in session.
Atong Paglaum
1. national That is the reason why the framers of the Consti – ad
2. regional interim - to prevent hiatus
3. sectoral: 2 groups.
-marginalized and underrepresented sectors Ad interim:
-lack well-defined political constituencies?? Literal meaning: “in the meantime: “for the time being”
National and regional – they need not organize along If made while the Congress is session:
sectoral lines, need not represent marginalized and Regular appointment
underrepresented sectors
Sec 16 Article VII
May they participate in the party list elections?
GR: NO, it they field candidates in the district elections Sec 17 Article VII with respect to the two ETs
XPN: they may participate through their sectoral wing,
provided that the latter is independely registered and SET
connected with the former through a coalition 25
12 senators
Part 10 12 congressmen
Congressional immunity Senate pres-chairman
“from any other place”
- go to the ethics committee – HRET
Because the Congress may disciple its members -9 members each
3 Justices SC
When is bail a matter of right? 6 – either Senators or Congressmen
Before conviction: less than reclusion perpetua
Again, the basis is proportional representation
If after conviction; Constitutional provision will not apply –
check Rules of Court From a decision of the electoral tribunals from Congress,
where should a party go to appeal?
Incompatible office v. Forbidden Office NO APPEAL

May you be validly appointed to a forbidden office?
NO Because the Consti made them the SOLE JUDGE of
election contests etc
Incompatible office, may be validly appointed – the
moment the accepts: he forfeits his seat Is appeal a constitutional right? NO
NOT FOUND IN THE CONSTITUTION – not in the bill of
Incompatible office: Inhibition rights
Forbidden office: Prohibition/Disqualification
What is the remedy of the party adversely affected?
Bodies attached to the Congress Rule 65
1. Commission on Appointments
Page 5 of 44
Why not rule 45? Rule 45 is not a mode of appeal Arnold v Nazareno
-very old case
So RULE 65 is the only remedy -under 1935 Consti
As early as that, the Court ruled:
Bondoc v Pineda - intrinsic in the grant of legislative power in the Congress
These ETs, although attached to the Congress yet they by the Constitution is the power to conduct inquiries in aid
are independent of the Congress so that the Senate of legislation
and the HR may not validly intrude or interfere in the
conduct and proceedings of these Electoral Tribunals How can you expect the Congress to enact good laws if
you will deny it the power to investigate?
Disbursement Acceleration Progam
Araullo v. Aquino If you will read the 1935 Consti- walang ganyan na
Sec 5(5) of Article VI provision sa 1935 Consti yet as early in that Case, the SC
GR: No law shall be passed authorizing any transfer of recognized ….
appropriation
XPN: power of augmentation Even if it is NOT expressly stated in Sec 21 of Article VI!
Only 5 people have the power of augmentation: (you do not need that PROVISION!!!)
(eds: actually its 7)
1. President (do not include v-pres) Bengzon Jr. v. Senate Blue Ribbon Committee
2. Senate President 2 important questions
3. Speaker of the House 1. is this absolute or is it subject to limitations?
4. Chief Justice 2. is it subject to judicial review or is it a political question?
5. Heads of the ConCom
A mere look at Sec 21 Article Vi will show that this power
3 important requirements: is not really absolute. There are important limitations there
(L-SC)
1. there must be a law authorizing them to do that 1. the inquiry must always be in aid of legislation whether
2. funds used to augment must come from savings from in connection with a pending bill in the Congress or in
their respective departments and savings must be connection with a bill expected to be filed in the Congress
determined only after the end of the fiscal year 2. must be conducted in accordance with the duly
3. no cross-border transfer of funds published rules of procedure of the house of the congress
conducting the inquiry
Cross-border: follows the doctrine of separation of powers 3. the rights of persons appearing in or affected by such
inquiries shall be respected
How about the projects funded by DAP?
WASAKIN ANG HOSPITAL unconstitutional yung DAP e. As to the second question: is this subject to judicial
review? Or Is this a political question?
Doctrine of operative fact:
An executive or legislative act declare unconstitutional This is not a political question.
cannot give rise to any right or obligation This is subject to judicial review, especially in view of
expanded power of the Courts
-quoted extensively in Araullo v Aquino
The Court may validly inquire into:
As an operative fact that produce consequences that (1) whether the inquiry is in aid of legislation
cannot be erased (2) whether the inquiry is conducted in accordance with
It sustains if effects – exception to the general rule that a the duly published rules of procedure of the house of
void law produces no effect Congress conducting such inquiry
-it could no longer be undone (3) whether the rights of persons appearing in or affected
by such inquiries are respected
- subject to greater scrutiny
- proceeds from equity and fair play In the case of Bengzon, was not really in aid of legislation
*see quote* This case of BENGZON JR. happened during the time of
Cory Aquino – then Senator Enrile – he delivered a
Part 11 privilege speech and alleged that there were certain prop
TWO TYPES OF CONGRESSIONAL OR LEGISLATIVE owned by cronies by Marcos landed on some of the
INVESTIGATIONS relatives of Cory Aquino. Those were subject to the
proceedings of Sandiganbayan, how come they landed
1. Inquiry in aid of legislation Sec 21 Article VI
into the hands of Aquinos?
2. Question hour Sec 22 Article VI
Page 6 of 44
Sen. Enrile encouraged the blue ribbon committee to - who may appear? The heads of departments
conduct an inquiry. They shall testify as to any matter pertaining to their
departments
SC: Was that really in aid of legislation? What is the
purpose? If in aid of legislation: ANY PERSON may appear
- that is an encroachment of our judicial prerogative!
- to determine Won there is a violation of Philippine - Question hour – is merely a borrowed concept from
criminal laws parliament
If we allow the senate blue ribbon committee – what if later Senate v. Ermita
on the SBR will arrive in a conclusion different from the Remember EO No. 464
one decided by Sandiganbayan? You are inviting a Promulgated by who? By the little girl
possible constitutional crisis
Prohibiting members of her Cabinet including offices of
Ordered SBR not to conduct further inquiry. After all, it the armed forces etc from appearing in legislative
was not really in aid of legislation investigations without her consent
Later case: Standard Chartered Bank v. Senate It was there where the Supreme Court made a very
Committee on Banks important distinction between QH and inquiry in aid of
Justice Nachura legislation
SCB- foreign bank allowed to do business in the PH Sec. 21 v Sec 22

There were local investors who alleged that they were If what is involved is inquiry in aid of legislation – members
victims of malpractice of SCB of the cabinet etc MAY not validly refuse to appear.
- Went to Enrile Otherwise, they may be cited in contempt [legislative
- todetermine Won there are loopholes in our laws to contempt]
prevent local investors from fraudulent bank practices
If they do not appear in inquiries in aid of legislation, how
SC: Obviously it was in aid of legislation can you expect Congress to enact good laws if you
To determine Whether there are loopholes in our laws so deprive the Congress the information it needs?
that remedial measure can be enacted
It will impair the work of Congress.
Just remember the three important limitations.
It will impair the Sec 7 of Article III of the Bill of Rights –
Legislative Contempt right of the people to information in matters of public
- if required to attend before that legislative body but did concern
not appear or refused to cooperate
- may even be sent to prison there Remember that the members of the Congress are the duly
elected representatives of the people
What is the nature of the power of contempt?
Judicial Only the Pres of the Executive Secretary ACTING by __
of the president: they are the only ones that can appear
That is an inherent power of the Courts
XPN: LEGISLATIVE CONTEMPT Not the other Cabinet members
When the Congress conducts an inquiry in aid of
legislation For the president or executive secretary to validly refuse
– HE MUST CLAIM/INVOKE/ASSERT Executive
May you be validly pardoned by the PRES? Privilege
No, in view of the doctrine of separation of powers
What is an executive privilege?
Intrinsic – is the power to conduct inquiries in aid of Right of the Pres. And other top exec. officers to withhold
legislation WITH THE PROCESS TO ENFORCE IT info from Congress, the Courts, and ultimately, from the
public
What is that process? Legislative contempt
How long shall you remain in prison? 3 varieties of executive privilege

You hold the key to your freedom. You shall remain there 1. State’s secret
as long as you refuse to cooperate 2. Informer’s privilege
3. Generic privilege for internal deliberations
Question hour
Page 7 of 44
The privilege must be asserted. It cannot be implied.

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

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

He shall ensure that the laws be faithfully executed Return from exile
Sec 17 Article VII Court went further
The president – has unstated residual powers
Doctrine of Qualified Political Agency or the Alter-Ego - not mentioned in the Consti but nonetheless, the
doctrine President may exercise
The members of the cabinet are deemed to be the alter-
egos of the President. Acts performed or rendered in the Specific Powers
regular course of business are deemed to be acts of the Sec 16 – Appointing power
President unless reprobated or disapproved by him. 2 paragraphs
1.
XPN: If it is the Constitution itself that the act shall be 2. ad interim – in recess or when the Congress is not in
performed by the President session
Resident Marine Mammals v Secretary Angelo Reyes
case Do all appointments need confirmation from the CoA?
The one who signed was the Secretary of Energy –
agreement with foreign eme Sarmiento v. Mison
These four (4) groups, to which we will hereafter refer
SC: DQPA does not apply from time to time, are:
4th par Sec 2 Article XII
First, the heads of the executive departments,
What are the qualifications to run for Pres Vpres Senator ambassadors, other public ministers and consuls, officers
Congressman of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
Common: (CAR) vested in him in this Constitution;
natural-born citizens
Able to read and write Second, all other officers of the Government whose
Registered voter appointments are not otherwise provided for by law;
Where do they differ? Third, those whom the President may be authorized by
Age law to appoint;
Residence
Fourth, officers lower in rank 4 whose appointments the
Pres Vpres 40 35 25 Congress may by law vest in the President alone.
40 on the day of the elections Only those mentioned in the first sentence that
Not on the day of promulgation requires CONFIRMATION
Not on the day of assumption into office 1. heads of the executive departments (Cabinet
secretaries)
35 XPN: Vice-President – THIS IS THE ONLY EXCEPTION
2. ambassadors, other public ministers and consuls
25 Congress
Page 8 of 44
3. officers of the armed forces from the rank of colonel or - cannot assume office
naval captain - if not approved, retains his position
4. and other officers whose appointments are vested in
him in this Constitution (e.g. Matibag v. Benipayo
1. members of the Constitutional Commissions
2. regular members of the JBC, Is an ad interim appointment, permanent or temporary?
-Permanent!
Manalo v. Sistoza
Offices of PNP in equivalent rank – NOT included Matibag v. Benipayo
An ad interim appointment is a permanent appointment
President PNP is a civilian agency – placed under the because it takes effect immediately and can no longer be
civilian department withdrawn by the President once the appointee has
qualified into office.
They are not included in the phrase “officers of the Armed
Forces” The fact that it is subject to confirmation by the
Commission on Appointments does not alter its
Present PNP is no longer part of the Armed Forces. permanent character.
You should know the composition of JBC The Constitution itself makes an ad interim appointment
Ex officio members permanent in character by making it effective until
The 4 regular members – needs confirmation from disapproved by the Commission on Appointments or until
Commission on Appointments the next adjournment of Congress
Calderon v Calare and Manalo v. Sistoza Summers vs. Ozaeta,

- the list requiring confirmation from COA is EXCLUSIVE
Q: ad interim- what if not confirmed, can the President
What about appointment of Judges and Justices? reappoint you?
NO A: NO
Instead of Commission on Appointment – JBC!! Q: ad interim – bypassed- can the President reappoint
you?
To strengthen the independence of the Judiciary A: yes!!
MATIBAG V BENIPAYO
2nd par: ad interim appointment
During the recess of the Congress, whether voluntary or PAG DINISAPPROVE LANG
compulsory -if disapproved – it is a judgment of the Commission on
the merits of his qualifications
Ratio: Commission can meet only when the Congress is That it involves principle of checks and balances
in session
If by-passed – can still be reappointed!
-so that there will be no hiatus in the government service A by-passed appointment is one that has not been finally
acted upon on the merits by the Commission on
What is the most important distinction between an ad Appointments at the close of the session of Congress.
interim appointment and the regular appointment There is no final decision by the Commission on
- it lies in the EFFECTIVITY of the appointment Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent such
-if ad interim: IT TAKES EFFECT IMMEDIATELY decision, the President is free to renew the ad interim
appointment of a by-passed appointee.
But NOT in a regular appointment
Ad interim appointment v. appointment in an acting
Ad interim capacity
- takes effect immediately subject only to the resolutory Pimentel v. Ermita
condition Ad interim In acting capacity
- IF he assumed office and later on not confirmed by the may be made only when may be made regardless
Commission: cannot return to his office. the congress is in recess of whether the congress is
WHY? INCOMPATIBLE OFFICE or not in session in session or not in
The moment he accepts, he forfeits his seat session
permanent tempo
If Regular requires confirmation does
- does not take effect immediately
Page 9 of 44
SEC 17 POWER OF CONTROL

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

I. Grounds She was an asst municipal treasurer
1. invasion Convicted of malversation
2. rebellion
II. subject to judicial review Granted absolute Pardon by the President
III. Maximum of 60 days Take note it is absolute
IV. May be revoked by Congress
V. Within 48 hours- President is requires to report to the She tried to push her luck a little bit too far. She demanded
Congress either personally or in writing that she be reinstated and be paid the backwages
Martial law – does not automatically suspend the privilege Will that entitled her to the reliefs sought?
of the writ
SC: no to both questions!
The right to bail shall not be impaired even if the privilege
of the writ of HC is suspended Effect of grant of pardon
Pardon may mean forgiveness, but not forgetfulness.. In
Calling out power the eyes of the law, she is still a convict
UNLESS the grant expressly so provides
SEC 19
DI LANG PARDON YAN Unlike amnesty that reaches back to the past. In the eyes
1. reprieves of the law, he was just like a new-born child. Clean slate
2. commutations doctrine
3. pardons
4. remit fines and forfeitures, after conviction by final The very essence of a pardon is forgiveness or remission
judgment. of guilt. Pardon implies guilt. It does not erase the fact of
5. amnesty the commission of the crime and the conviction thereof. It
does not wash out the moral stain. It involves
Reprieve – suspension of execution – STAY of the forgiveness and not forgetfulness
execution – NOT THE SENTENCE!!!
Suspension of sentence? ANO YAN? PROBATION YAN The better considered cases regard full pardon (at least
HA?? one not based on the offender's innocence) as relieving
the party from all the punitive consequences of his
Commutation – lowering the penalty criminal act, including the disqualifications or disabilities
based on the finding of guilt. 17 But it relieves him from
Yung amnesty nakahiwalay. Nasa 2nd paragraph siya! nothing more
A pardon looks to the future. It is not retrospective. 19 It
Ang amnesty will require the concurrence of the makes no amends for the past. It affords no relief for what
MAJORITY of ALL the members of the CONGRESS has been suffered by the offender
- conviction by final judgment is not required
But there is a counterbalancing situation – concurrence of Vidal V COMELEC
the Congress Estrada ran for mayor
Vidal: disqualified! Since convicted although granted
Grant of pardon – withdraw your appeal pardon by GMA
Pardon is avaialable not only one guilty of a crime but also Vidal “only a conditional pardon”
to one guilty of an administrative offense When he ran, he violated the conditions.
Not only disqualified, he shall serve his sentence
Since the Constitution did not distinguish, we shall not
distinguish.
Page 10 of 44
In the proclamation: whereas… he has signified his The role of Senate – is limited only or withholding its
intention not to run in any elective office consent
RULING: Bayan v. Zamora

Contrary to Risos-Vidal’s declaration, the third
preambular clause of the pardon, i.e., "[w]hereas, Joseph In our jurisdiction, the power to ratify is vested in the
Ejercito Estrada has publicly committed to no longer seek President and not, as commonly believed, in the
any elective position or office," neither makes the pardon legislature. The role of the Senate is limited only to giving
conditional, nor militate against the conclusion that former or withholding its consent, or concurrence, to the
President Estrada’s rights to suffrage and to seek public ratification
elective office have been restored.
Executive agreement – no need for concurrence
This is especially true as the pardon itself does not
explicitly impose a condition or limitation, considering the In international law – there is no difference between a
unqualified use of the term "civil and political rights"as treaty and executive agreement – they are equally binding
being restored. international obligations
Jurisprudence educates that a preamble is not an VFA is involved

essential part of an act as it is an introductory or
preparatory clause that explains the reasons for the Pimentel v Office of the Executive Secretary
enactment, usually introduced by the word Ratification of the Rome statute
"whereas."40 Whereas clauses do not form part of a OFFENSES THAT FALL UNDER THE JURISDICTION
statute because, strictly speaking, they are not part of the OF THE ICC
operative language of the statute HuWAG
1. crimes against HUmanity
Another important issue: 2. War crimes
Carries accessory penalty: Perpetual disqualification – 3. Aggression
see RPC 4. Genocide
Argument: what was pardoned was only the main penalty- State immunity from suit extends to the President
reclusion perpetua. It does not include the accessory
penalty It cannot be invoked in the ICC
RULING: My opinion: it is deemed a waiver. Niratify mo ICC e. so it

For this reason, Articles 36 and 41 of the Revised Penal is not really an exception
Code should be construed in a way that will give full effect
to the executive clemency granted by the President, Making the unequal equal
instead of indulging in an overly strict interpretation that
may serve to impair or diminish the import of the pardon Principle of Complementarity
which emanated from the Office of the President and duly ICC shall be complementary to national criminal
signed by the Chief Executive himself/herself. The said jurisdiction
codal provisions must be construed to harmonize the
power of Congress to define crimes and prescribe the IT GIVES PRIMACY to national criminal jurisdiction
penalties for such crimes and the power of the President
to grant executive clemency. If the Court of one State already assumed jurisdiction …
ICC will no longer assume jurisdiction
A rigid and inflexible reading of the above provisions of
law, as proposed by Risos-Vidal, is unwarranted, XPNS:
especially so if it will defeat or unduly restrict the power of 1. the intention is to protect the accused from liability
the President to grant executive clemency. 2. not conducted independently impartially
= ICC may still assume jurisdiction
It is well-entrenched in this jurisdiction that where the
words of a statute are clear, plain, and free from Sec 21 of article VII v Sec 25 of Article XVIII
ambiguity, it must be given its literal meaning and applied
without attempted interpretation. Verba legis non est SECTION 25. After the expiration in 1991 of the
recedendum. From the words of a statute there should be Agreement between the Republic of the Philippines and
no departure. the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be
Part 13 allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so
Page 11 of 44
requires, ratified by a majority of the votes cast by the Because of the expanded concept of judicial review, the
people in a national referendum held for that purpose, and doctrine of political question has been greatly affected, in
recognized as a treaty by the other contracting State. fact, it has been greatly diminished
Before we allw foreign military bases in PH It is not the legality of the act, but whether the power was
1. treaty exercised whimsically or capriciously
2. when C requires – ratified by majority of the people in
a referum held for that purpose Vinuya v. Romulo
3. the other contracting state must also consider it as a In matters of foreign policy, the executive and judiciary
treaty must speak with just one voice
In VFA: Sec 25 article xviii will govern because it is a Part 15

special provision
1. there must be an actual case or controversy
Section 21, Article VII deals with treatise or 2.must have sufficient locus standi
international agreements in general, in which 3. the constitutional question must be raised at the earliest
case, the concurrence of at least two-thirds (2/3) opportune time
of all the Members of the Senate is required to 4. the resolution of the constitutional question must
make the subject treaty, or international constitute the very lis mota of the case
agreement, valid and binding on the part of the
Philippines. This provision lays down the general When is the earliest opportune time?
rule on treatise or international agreements and Matibag v Banipayo – in pleaings filed before cout of GN
applies to any form of treaty with a wide variety of
subject matter, such as, but not limited to, Belgica v Ochoa
extradition or tax treatise or those economic in - the first two are the most important
nature. All treaties or international agreements
entered into by the Philippines, regardless of Actual case or controversy
subject matter, coverage, or particular - ripe for resolution and susceptible of judicial
designation or appellation, requires the determination, that which is not conjectural or anticipatory
concurrence of the Senate to be valid and
effective. Courts may not resolve hypothetical cases or cases
based on assumption
In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the Cannot render advisory opinions
presence of foreign military bases, troops or
facilities in the Philippines. Under this provision, Moot and academic principle
the concurrence of the Senate is only one of the XPNS (GEFC)
requisites to render compliance with the 1. grave violation of the Constitution
constitutional requirements and to consider the 2. the exceptional character of the situation and the
agreement binding on the Philippines. Section 25, paramount public interest
Article XVIII further requires that "foreign military 3. formulation of principles to able to guide the bench, the
bases, troops, or facilities" may be allowed in the bar, and the public
Philippines only by virtue of a treaty duly 4. capable of repetition yet evading review
concurred in by the Senate, ratified by a majority
of the votes cast in a national referendum held for May ICJ render advisory opinions? YES
that purpose if so required by Congress, and Because under the UN Charter and ICJ Statute has 2
recognized as such by the other contracting state. main functions:
1. to resolve contentious cases
Part 14 2. to render advisory opinion to GA, SC, and other organs
2 kinds of Political Question of the United Nations
1. Questions which are to be decided by the people in
their sovereign capacity (e.g. loss of confidence as Arigo v Swift
ground for recall) Liberalization of standing
2. Questions in regard to which full discretionary authority Has personal and substantial interest in the case where
has been delegated by the Constitution to the executive he have sustained or will sustain direct injury as a result
or legislative branch of the Government of the act deemed challenged
Basis of calling-out power: That is a political question Sec 14 Ombudsman Act -

XPN: if there it can be shown that there has been a grave
abuse of discretion
Page 12 of 44
No writ of injunction shall be issued by the court to delay Macalintal v. COMELEC

an investigation of the Ombusdman.. unless prima facie There is now an exception to the Residence requirement
evidence – Overseas Filipinos – Absentee Voters’ Act of 2003
Carpio-Morales v CA 6th Division Power to register and accredit political parties:

-declared unconstitutional: the 2nd paragraph only Sec 2 par 5 Article IX-C
-appellate jurisdiction of SC may not be increased without
its consent What vests personality in an organization as political party
-1st paragraph: inoperative is registration in the COMELEC
This encroach on the rule-making power of the SC until
we are able to rule on the matter What groups may not be registered: (RACS)
1. religious denomination and sect
2. those who seek to achieve their goals through violence
or unlawful means
3. those which refuse to uphold and adhere to the
1. Pre-election Constitution
2. Election 4. supported by any foreign government
3. Post-election
5th paragraph Sec Article IX-C
Registration of voters Not all financial contributions from foreign governments
are prohibited. Only those related to elections.
Election protest and quo warranto are POST-
PROCLAMATION REMEDIES Sec 81 BP 881: The Omnibus Election Code
Connect it with the 5th paragraph Sec 2 Art IX-C of the
Substitution of candidates Constitution
-before the election
Among the election offenses is:
Qualifications of a voter Intervention of foreigners
Sec 1 Art V Suffrage
1. citizen Pre-election activities:
2. not otherwise disqualified by law 1. Registration of voters
3. legal age 2. Registration of party-list
4. resident of PH – 1 year
5. resident where he will vote - 6 months before the Election period
elections 30 days before and 30 days after the election
It goes beyond the election
No literacy/property, or other substantive requirement
IBA SA CAMPAIGN PERIOD YAN
Q: Congress enacted a law providing therein that only
those who graduated HS can vote It does not end on the day of election itself
A: OBVIOUSLY, it is unconstitutional
What about the campaign period?
Kabataan partylist v. COMELEC Duration varies.
Questioned the constitutionality of requiring biometrics on It depends on what office you are running for. If national:
the theory that it is a substantive requirement in the longer period
exercise of suffrage
At any rate, GR: campaign period begins after the last day
SC: did not agree of filing of COC
Clarified the meaning of substantive requirement as
distinguished from procedural requirement BUT it always ends 1 day before the election. ALWAYS
Registration laws are police power measure designed to Election campaign or Partisan Political Activity 1 day
ensure that only those who possess the qualifications and before the election until the election day – that will be an
none of the disqualifications can exercise the right of election offense
suffrage
In practice, especially in the PH, that is when the real
Substantive: something to do with gender, color, etc. campaign begins
Residence qualification: 1 year in PH the place where he

will vote 6 months
Page 13 of 44
Sec 79-B of the Omnibus Election Code

Election campaign/Partisan Political Activity Next day – he withdrew
- no problem
Have you noticed that the two terms are used That was March 31, the last day
interchangeably? In other words, parehas lang yan!
April 1 nagstart
Now who is a candidate? April 2-declaration under oath WITHDRAWING HIS
Sec 79-A WITHDRAWAL
One who files a certificate of candidacy
If you do not file – you are not a candidate WITHDRAWAL OF WITHDRAWAL made after the last
day of filing is deemed to be a filing of a new CoC
Vote for a noncandidate is no vote at all. = Stray vote
Therefore, it should not be allowed for being filed out of
Sec 80 time.
You can only engage in Partisan political activity during
the campaign period Withdrawal by text messaging – NOT a substantial
compliance
If outside = election offense
XPN: pol parties holding party conventions to select who Sec 66
will be their political candidates The effect of filing of CoC
- it can be held even before the campaign period
 Those holding Appointive office
Designed to promote the election or the defeat  Running For an elective office
= ipso facto resigned
(e.g. commercials of those who did not yet file their
certificate of candidacy – not yet a candidate. If we follow The moment you filed, you are ipso facto resigned from
the letter of the rule, there is no violation” your APPOINTIVE office or position
What about the spirit of the law? Never mind. Wala What happens later on could be of no moment. You could
nanaman may pakialam sa spirit. no longer go back to your appointive office or provision
It is not even considered a partisan political activity Extent of applicability

PPA- designed to promote the election or defeat of a It applies as well to Members of the Armed Forces in the
“candidate” active service as well as employees and officals of
GOCCs
Filing of CoC
Sec 76 -it applies to GOCCs without original charters
It is the MINISTERIAL DUTY to receive and acknowledge
receipt CoC Reasoning of SC
Sec 66
The question of WON he is disqualified or not – belongs The law did not distinguish
to another tribunal – to be resolved in a disqualification
case Quinto v. COMELEC
Where the SC declared Sec 66 of the OEC
Sec 73 3 important rules unconstitutional
1. must file CoC within the period prescribed by law. Late
filing is not allowed Ratio: discriminated against those government ees
2. only for 1 office in an election. holding public office
3. if you file for two or more positions in the same election It is violative of the equal protection clause
you are not candidate in any of those offices. You make
up your mind. Sec 67 had already been expressly repealed
With respect to those holding elective office if they filed
Can you withdraw? Yes CoC- they are not resigned!
Written declaration under oath
Pag appointive office ipso facto resigned?
Monsale v. Mico?
Let us assume the last of filing is March 31 There is no valid classification based on substantial
distinction between those holding appointive office and
Mr X filed March 30 those holding elective office that will justify difference in
A day before the last day treatment in filing the certificate of candidacy.
Page 14 of 44
Mayor Miranda is disqualified to run for the 4 th time.

Issue: WON there is substantial distinction COMELEC cancelled CoC – IMPORTANT FACT
RULING: The son, Joel Miranda – upon the nomination of pol par –
No, there is none filed certificate of candidacy for mayor
THAT WAS THE ORIGINAL RULING. Abaya- another disqualification case questioning the
substitution
But…
COMELEC – did not decide upon the 2nd decision
IN A MOTION FOR RECONSIDERATION. There came the election
JOEL Miranda won and already assumed office (also took
The Supreme Court reconsidered. oath)
There was no violation of the equal protection clause Eventually elevated to SC
There is a valid substantial distinction that will justify SC: NO VALID SUBSTITUTION
difference in treatment Ordered Joel Miranda to be removed as Mayor
Those holding elective Those holding Ratio: In that case, the Comelec did not only declare
office appointive office Miranda disqualified but COMELEC ALSO CANCELLED
they have mandate from Their mandate came from HIS COC.
the people the appointing authority
term is very limited Longer term – compulsory When the comelec cancelled his CoC, it is as if he never
retirement 65 was a candidate.
Judges and justices 70
How can a person take the place of somebody who does
This is the controlling jurisprudence. not exist or who never was?
SC upheld the constitutionality of Sec. 66
The existence of a valid COC seasonably filed is a
PART 16 CONDITION SINE QUE NON
Substitution of candidates
Sec 77 A disqualified candidate can only be substituted only if he
had a valid COC
What are the grounds?
If none, he is and was not a candidate at all.
DDW (hindi DSW ah)
1. Death If a person is not a candidate, he cannot be substituted.
2. Disqualification Only a candidate can be substituted.
3. Withdrawal
Considering that Joel Miranda also possesses all the
qualifications of a mayor, can he be considered a
There can be substitution even on the day of election.
candidate in his own right?
WHEN? From the start of campaign period until midday
of election day SC: NO!
Because he filed his CoC long after the last day for filing
It must be within the period prescribed by law.’
It says: must belong to the same political party
Anong implication? Who shall assume mayorship now?

The implication is simple. The candidate who does not Doctrine of the rejection of the 2nd placer
SC applied succession.
belong to a political party cannot be validly substituted.
-old rule. Not the controlling one now
For an independent candidate – nobody will qualify.
Pero yang doctrine na yan wala na yan! Because of
Miranda v. Abaya Maquiling v. COMELEC
Facts
Vox populi, vox Dei
This happened in Santiago City, Isabela
The voice of the people is the voice of God.
Miranda filed certificate of candidacy for mayor
Abaya – disqualification case against him
Sec 77 of the OEC
Ground: already served for 3 consecutive terms
When? From the start of campaign period until the midday
COMELEC: of election
Page 15 of 44
Disqualification cases before Election -the COC will not be cancelled

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

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

He has no bona fide intention to run Won the election but no proclamation yet
- most important phrase Loong was underage based on the record of the civil
Only purpose is confusion…. That will place the election registrar
process in mockery -filed dq case against Loong based on sec 78
-COMELEC will also cancel COC SC: filed out of time
78 Argument: why penalize me, I only discovered it after the

Material misrepresentation as to any statement of fact in election. It should be from the date of discovery
the COC
Relate to sec 74 SC does not agree
That is NOT what the law says. The law is CLEAR.
Fernando v. COMELEC
-not really a citizen of the Philippines Remedy? None
There is a gap in the law. GO TO CONGRESS.
What is the nature of the petition:
Petition to deny due course and CANCEL CoC Reckoned not from the date of discovery – but from the
date of filing
So if cancelled, may he still be substituted? 25-day period is a MANDATORY requirement of the
NO law
Miranda v Abaya
69 and 78 – may period
68 v .78 68 walang period
68 78 and 69
CoC not cancelled CoC cancelled Electoral reforms Law 1987 Public Act 6646
May be substituted NOT The effect of the DQ case
68 ang tawag ko dito ay substitution proper. Sec 6

68- no doubt about it that the candidate is qualified but he 1st sentence. Visualize
committed an election offense Before elections-DQ case
Page 16 of 44
The case has already been resolved with finality Status: person having dual citizenship
Indeed he was found to be DQ
HE SHALL NOT BE VOTED FOR and the votes cast for He ran for mayor.
him shall not be counted He renounced his American citizenship.
Terminated his status as a dual citizen
2nd sentence
Variation: not decided with finality Travelled using American passport
Won in the election Effect: that is an EFFECTIVE RECANTATION OF HIS
RENUNCIATION
COMELEC- not ousted with jurisdiction
The Commission shall continue with the trial/inquiry or So in effect, he reverted to his prior status as a person
protest, as the case may be having dual citizen
Cayat v COMELEC Disqualified under Sec 40 of LGC: those with dual

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

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

remedy there. Election protest and quo warranto? What Court has
jurisdiction?
PRE-PROCLAMATION governed by the following:
1. sec 241 definition Mitmug v. COMELEC
2. 242 what Court: COMELEC. Again. For as long as there was an election, although the turn-
3. 243 the issues that may be raised in a pre-proclamation out of voters are very low
case (4)
COMELEC shall not act on the petition for failure of
Since Arnaldo is disqualified, the votes cast for him shall elections. After all, there is no requirement in our election
not be counted. He was never a candidate laws that majority of voters must cast their votes. All that
is required is
Maquiling is not the second placer. He was the first among
the remaining qualified candidates There can be failure of election in a political unit only if
the will of the majority has been defiled and cannot be
Ejercito case ascertained. But, if it can be determined, it must be
-won –took oath accorded respect. After all, there is no provision in our
-disqualified for overspending election laws which requires that a majority of registered
voters must cast their votes. All the law requires is that
The one who replaced him: Vice-Governor a winning candidate must be elected by a plurality of valid
votes, regardless of the actual number of ballots cast
In Arnado- it was as if he has never been a candidate’
Ejercito – no question – he is qualified: FOLLOW THE Do not disenfranchise the voters that way.
LAW ON SUCCESSION
Before COMELEC can act on a verified petition seeking
Sec 6 of OEC to declare a failure of election, two (2) conditions must
Petition to declare failure of elections concur: first, no voting has taken place in the precinct or
precincts on the date fixed by law or, even if there was
on account of: voting, the election nevertheless results in failure to elect;
1. force majeure and, second, the votes not cast would affect the result of
2. violence the election.
3. terrorism
4. fraud First condition is not present in Mitmug case.
5. other analagouse causes
So what Court has jurisdiction? COMELEC En Banc –
3 situations contemplated Sec 4 RA 7166
No Elections
Election was suspended If granted: will schedule special elections in that area
Failure to elect: nobody emerged as a winner
Pre-Proclamation
It is a remedy separate and distinct from a pre- 243 how many issues? Pero actually that can be
proclamation case simplified into two
In a proclamation case: there was an election that took a. Illegality in the composition or proceedings of the
place Board of Canvassers
Sec 4 RA 7166: e.g. someone sit there who is not supposed to be there
Jurisdiction over petition to declare failure of elections
belongs to COMELEC En Banc b-d illegality in the PTRCA
Page 18 of 44
Preparation Period:
Transmission EP: 10 days after proclamation
Receipt QW: 10 days
Custody
Appreiciation See rules in PET
Of what? Labo v. COMELEC

Not of ballots ah -if issue in QW is lack of citizenship, the period may be
But of election returns ah and certificates of canvass extended
-only XPN to the period
The process has been simplified now.
Sec 243(a) na lang natira. Because illegality in the Various jurisdictions
PTRCA –affected by the computerization of our laws EP and QW: INVOLVING PRESIDENT AND VICE-
PRESIDENT
Idem sonans rule SUPREME COURT EN BANC sec 4 article VII (7)
(same sound)
- if misspelled, if your pronounced it the same way – count Sole judge of all contests and returns/qualifications of the
it in favor of the candidate PRESIDENT AND VICE-PRESIDENT
=after PROCLAMATION
Desciptio personae rule
-described Tiagong Putol It did not say candidate
Santiago na putol ang kamay When do you become President? AFTER
PROCLAMATION
Post Proclamation
SC here will act as PET (Presidential Electoral Tribunal)
Question:
How do you distinguish an election protest from a Senator: SET
petition for quo warranto “of their respective members”
EP
The main issue is: Who really won the elections? House of Rep: HRET
Nagkadayaan ba? Nagkatakutan ba? Nagkabilihan ba?
Ang bottomline niyan, sino ba talaga nanalo? No appeal. The Constution made them the “sole judge” of
all contests relating to election returns and qualifications
Remember: what is controlling is not the title
Remedy: Special Civil Action for Certiorati Rule 65
QW: eligibility of the winner
COMELEC: elective regional/provincial/city officials
Who may file
EP: a candidate RTC: elective municipal officials -> appeal to COMELEC
QW: any registered voter
MTC: barangay/SK officials – appeal to COMELEC
Effect
EP: assume office Tecson case
QW: fill vacancy – follow law on succession. If not, the The word “contest” there – includes election protest and
position shall be declared vacant quo warranto
Election Quo Warranto Two distinct remedies having one object in view: to unseat
protest the winning candidate
The main issue Who really won eligibility of the
is the elections duly-proclaimed No splitting of jurisdiction in election protests and
winner quo warranto. The same Court has jurisdiction
Who may file a candidate any registered
voter The word “election returns” refers to election protests. The
Effect assume office fill vacancy – word “qualifications” refers to quo warranto.
follow law on
succession. If SECTION 3. The Commission on Elections may sit en
not, the position banc or in two divisions, and shall promulgate its rules of
shall be procedure in order to expedite disposition of election
declared vacant cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division,
Page 19 of 44
provided that motions for reconsideration of decisions organizational structure and environmental
shall be decided by the Commission en banc. circumstances within which the appointee must function.
Reyes v. RTC of Oriental Mindoro As long as the appointee is qualified the Civil Service
It is this Decision of the COMELEC En Banc that may be Commission has no choice but to attest to and respect the
reviewed by the SC via a petition for certiorari appointment even if it be proved that there are others with
superior credentials. The law limits the Commission's
Comelec Div -> COMELEC EN Banc -> SC authority only to whether or not the appointees possess
Meaning to say from a decision of the Division of the the legal qualifications and the appropriate civil service
COMELEC. Wag kang dumiretso sa SC. Magfile ka muna eligibility, nothing else. If they do then the appointments
ng MR. are approved because the Commission cannot exceed
its power by substituting its will for that of the
Reyes ruling modified appointing authority. Neither can we.
Gementiza v. COMELEC
If what is involved is an interlocutory order of the Flores v. Drilon
COMELEC, there, the party may go to SC directly constitutionality of Sec. 13, par. (d), of R.A. 7227-SBMA
Charter
What is contemplated under Sec 3 of Art IX-C is a FINAL “Provided, however, That for the first year of its operations
decision of the COMELEC Division. MR first from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority”
Gordon – mayor of Olangapo

-chairman and CEO of the SBMA
Appointment
How is a public officer chosen? Election and appointment Article IX-B
SECTION 7. No elective official shall be eligible for
Let us focus on Appointment appointment or designation in any capacity to any public
office or position during his tenure.
Appointment v. Designation
Designation –presupposes that a person already Unless otherwise allowed by law or by the primary
appointed – merely given additional functions. functions of his position, no appointive official shall hold
Designation is merely temporary any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
Appointment is discretionary government-owned or controlled corporations or their
That is very important subsidiaries.
It is a political question. As long as the appointee meets
the minimum qualificatios are satisfied 1ST par: holding elective office
2nd par: holding appointive office
Rimonte v. CSC (1995)
The head of an agency who is the appointing power is the 1st paragraph: ONE XPN in flores v. Drilon – if they are
one most knowledgeable to decide who can best perform holding the other office in an ex-officio capacity
the functions of the office. Appointment is an essentially That is the only exception
discretionary power and must be performed by the officer
vested with such power according to his best lights, the 2nd paragraph: 2 xps:
only condition being that the appointee should possess 1. allowed by law
the qualifications required by law. 2. allowed by the primary functions of their position: they
are holding it in an ex-officio capacity
If he does, then the appointment cannot be faulted on
the ground that there are others better qualified who Gordon: covered by the first paragraph because he is an
should have been preferred. Indeed, this is a elective official
prerogative of the appointing authority which he alone can
decide. The choice of appointee from among those who Argument: but there is a law allowing it
possess the required qualifications is a political and
administrative decision calling for considerations of SC: that exception “allowed by law” only refers to those
wisdom, convenience, utility and the interests of the holding appointive office.
service which can best be made by the head of the office
concerned, the person most familiar with the with the That will violate Sec 7 ARTICLE IX-B of the Constitution
organizational structure and environmental
circumstances within which the appointee must function
Page 20 of 44
Another reason of the supreme court: goes against the There are now three applicants.
nature of appointment which is the discretionary
The one appointed was the Chief Accountant of that other
the power of choice is the heart of the power to government agency.
appoint.
Q: May the Deputy Accountant complain that there is a
power to appoint an officer, it (Congress) cannot at the violation of the next-in-rank rule?
same time limit the choice of the President to only one
candidate. Once the power of appointment is conferred A: NO
on the President, such conferment necessarily carries the Remember that the next-in-rank rule applies only if the
discretion of whom to appoint. Even on the pretext of vacancy is filled by promotion
prescribing the qualifications of the officer, Congress
may not abuse such power as to divest the appointing In this case, how is this filled?
authority, directly or indirectly, of his discretion to
pick his own choice. Consequently, when the Remember that there is no legal fiat that the vacancy
qualifications prescribed by Congress can only be met by shall be filled only by promotion. The appointing authority
one individual, such enactment effectively eliminates the is given wide discretion.
discretion of the appointing power to choose and
constitutes an irregular restriction on the power of Let us vary the facts
appointment. What if the one appointed is the Administrative Officer?
May he complain now?
In the case at bar, while Congress willed that the subject
posts be filled with a presidential appointee for the first A: YES
year of its operations from the effectivity of R.A. 7227, the How was it filled now? It is by promotion. Remember that
proviso nevertheless limits the appointing authority to only it is a movement from a lower position to a higher position.
one eligible, i.e., the incumbent Mayor of Olongapo City. He was bypassed.
Since only one can qualify for the posts in question, the
President is precluded from exercising his discretion to Can he insist that he should be appointed?
choose whom to appoint. Such supposed power of No
appointment, sans the essential element of choice, is no
power at all and goes against the very nature itself of He can complain but he cannot insist that he should be
appointment. the one appointed
Accordingly, while the conferment of the appointing power Abila v. CSC

on the President is a perfectly valid legislative act, the the next-in-rank rule is not absolute;
proviso limiting his choice to one is certainly an it only applies in cases of promotion. And even in
encroachment on his prerogative. promotions, it can be disregarded for sound reasons
made known to the next-in-rank. The appointing authority,
Sandoval: it will violate the doctrine of separation of under the Civil Service Law, is allowed to fill vacancies by
powers promotion, transfer of present employees, reinstatement,
reemployment, and appointment of outsiders who have
Next-in-rank rule appropriate civil service eligibility, not necessarily in that
Simply says that if a vacancy is filled by promotion. The order. There is no legal fiat that a vacancy must be
person holding the position next-in-rank thereof shall be filled only by promotion; the appointing authority is
considered for promotion given wide discretion to fill a vacancy from among the
several alternatives provided for by law.
Let us assume that there is a certain govt office
The head of the office is a Chief Accountant. The next in The Court further notes that even if the vacancy here had
rank is the Deputy Accountant based on its organizational been filled by promotion rather than by lateral transfer, the
structure. 3rd in rank is an Administrative Officer concept of "next in rank" does not import any
mandatory or peremptory requirement that the
The Chief Accountant retired person next in rank must be appointed to the
The Deputy Accountant who is also qualified – applied for vacancy. What Section 19 (3) of P.D. No. 807, the Civil
the position Service Law, provides is that if a vacancy is filled by a
Administrative Officer who is also qualified also applied promotion, the person holding the position next in rank
thereto "shall be considered for promotion."
So there are two applicants. Both of them are applicants.
In Taduran v. Civil Service Commission, the Court
The Chief Accountant of another government office also construed that phrase to mean that the person next in
applied rank "would be among the first to be considered for the
Page 21 of 44
vacancy, if qualified. In Santiago, Jr. v. Civil Service -one lawfully entitled to an office
Commission, the Court elaborated the import of the rule
in the following manner: Usurper
-ha no valid title, not even a color of title. BUT he is an
One who is next-in-rank is entitled to preferential actual possession of the office
consideration for promotion to the higher
vacancy but it does not necessarily follow that ACTS
he and no one else can be appointed. The rule Are there acts valid?
neither grants a vested right to the holder nor No problem with de jure. Of course valid
imposes a ministerial duty on the appointing
authority to promote such person to the next De facto officer
higher position. . . . -his acts is valid only insofar as 3rd parties and the genera;
public relying on those acts are concerned
Qualifications
May be understood in 2 senses: Usurper
1. AS AN ACT -his acts are entirely VOID
2. AS AN ENDOWMENT
DE FACTO OFFICER
ACT – taking of an oath and in case of accountable public -generally, not entitled to the salary of his office
officers: the posting of bond And also, he is not supposed to benefit from his own acts
Knowing that his title is imperfect, he runs the risk of not
Article VII SEC 5 being paid
Before they enter on the execution of their office, the
President, the Vice-President, or the Acting President XPN: he may be allowed to receive the salary
shall take the following oath or affirmation… If there is no de jure officer claiming that salary or the
assumption is in good faith.
- that is qualification as an act!
E.G. Gordon case- he is entitled to his salary
Article IX-B SEC 4 -no de jure officer
All public officers and employees shall take an oath or -otherwise, the Government will be unjustly enriched from
affirmation to uphold and defend this Constitution his services
ARTICLE XVI Requisits to be considered as a de facto officer (OPC)

SECTION 5. (1) All members of the armed forces shall 1. De Jure office (no such thing as a de facto office)
take an oath or affirmation to uphold and defend this 2. Actual possession of the office
Constitution. 3. Color of title
Let us assume that you are elected to a public office and Cannot be collaterally attacked
then you assumed office BUT FAILED TO TAKE YOUR Only in a quo warranto proceeding
OATH
Different from the quo warranto in the election case:
Are your acts valid? prescriptive period of 1year
YES
In such case, you become a de facto officer After the 1 year period – it ripens into a de jure officer
The acts are valid only insofar as third parties and the What if it is the law itself that was declared
general public relying on such acts are concerned BUT a unconstitutional?
de facto officer is not supposed to benefit from his own It creates no rights. Adhere to the orthodox view
acts
Different from Drilon cases where only the provision of law
De facto officer: He has a known appointment or election is declared unconstitutional, not the law itself
but he failed to conform to some requirements or
precedent Part 19
Qualification as an endowment
Who is a de facto officer? Citizenship
-in actual possession of the office but he merely has a Remember that public service is reserved for Filipino
color of title citizens only
-his title is imperfect
2 kinds of natural born citizens
De jure
Page 22 of 44
1. Those who are citizens of the Philippines from birth There are two ways of acquiring citizenship: (1) by birth,
without having to perform any act to acquire or perfect and (2) by naturalization. These ways of acquiring
their Philippine citizenship. citizenship correspond to the two kinds of citizens: the
2. Those who elect Philippine citizenship in accordance natural-born citizen, and the naturalized citizen. A person
with paragraph (3), Section 1 hereof shall be deemed who at the time of his birth is a citizen of a particular
natural-born citizens. country, is a natural-born citizen thereof
3 ways by which Philippine citizenship may be reacquired Another contention:

1. by naturalization respondent Cruz is no longer a natural-born citizen since
2. by repatriation he had to perform an act to regain his citizenship
3. by direct act of the Congress
SC: WRONG
Case of Vicente Ching The acts that Cruz performed were NOT TO ACQUIRE
Governed by 1935 Consti his citizenship.
Elected Phil citizenship after 14 years The acts that Cruz performed were to RE-ACQUIRE
Originally, natural-born na siya e!
SC: it must be within a reasonable time
Reasonable time: 3 years Mercado v. Manzano
Edu-born in US
Why amended: -parents are Filipinos
Absurd situation: if he is an illegitimate child ->he will
follow the citizenship of his mother Ran for Vice mayor of Makati
-no need to elect Philippine citizenship Contested: he has dual citizenship
Case of Fernando Poe 40 of the Local Government Code of 1991 (R.A. No.
Governed by 1935 Constitution 7160), which declares as "disqualified from running for
Mother is an alien any elective local position: . . . (d) Those with dual
Did not elect Philippine Citizenship citizenship."
SC: Still a Filipino citizen ISSUE: was he disqualified?

Under 1935 Constitution: those born of Filipino FATHERS
Ruling: NO
Part 20
It may be lost or reacquired in the manner provided by law What is prohibited is Dual Allegiance
REACQUISITION
1. naturalization2 Dual citizenship v. Dual Allegiance
2. repatriation dual citizenship is different from dual allegiance.
3. by direct act of congress
Dual citizenship arises when, as a result of the concurrent
Bengzon III v. HRET application of the different laws of two or more states, a
Congressman Cruz used to be natural-born person is simultaneously considered a national by the
Lost citizenship said states
Served in us armed forces
Became an American citizen Dual allegiance, on the other hand, refers to the situation
in which a person simultaneously owes, by some positive
Later on, he reacquired his Philippine citizenship act, loyalty to two or more states.
He took an oath of allegiance
He ran for Congressman While dual citizenship is involuntary, dual allegiance is the
result of an individual's volition.
Issue: Was he qualified to run?
There you are. Such a beautiful distinction
SC: YES
It was in this case where the Court discussed the effect of Is sec 5 article IV self-executing?
repatriation SECTION 5. Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law.
Repatriation results in the recovery of the original
nationality NO! “shall be dealt with by law”
The law referred to by Section 5 is a future law
Ratio
Page 23 of 44
Sec 40(b) of LGC is supposed to be an implementing law (2) Those seeking elective public in the Philippines shall
of Sec 5 Article IV of the Constitution meet the qualification for holding such public office as
required by the Constitution and existing laws and, at the
It follows that the implementing law prohibits “dual time of the filing of the certificate of candidacy, make a
allegiance” personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to
Sec 40(b) of LGC shall be understood to mean: “dual administer an oath;
allegiance”
REQUIREMENTS
1. possess all the qualifications
"Consequently, persons with mere dual citizenship do not 2. renounce AT THE time of filing of CoC
fall under this disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict May you be validly appointed?
process with respect to the termination of their status, for YES
candidates with dual citizenship, it should suffice if,
upon the filing of their certificates of candidacy, they REQUIREMENTS
elect Philippine citizenship to terminate their status 1. oath of allegiance to the Philippines and duly-
as persons with dual citizenship considering that constituted authorities
their condition is the unavoidable consequence of 2. renounce foreign citizenship prior to assumption of
conflicting laws of different states. As Joaquin G. office
Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: "Dual citizenship Maquiling v. COMELEC
is just a reality imposed on us because we have no control Arnado used to be a natural-born Filipino –migrated to
of the laws on citizenship of other countries. We recognize US-naturalized American citizen
a child of a Filipino mother. But whether she is considered Maquiling availed of RA 9225
a citizen of another country is something completely He ran for mayor
beyond our control." He renounced his American citizenship at the time of filing
RA 9225 "Citizenship Retention and Re-acquisition Used American passport- that was an EFFECTIVE
Act of 2003." RECANTATION OF HIS RENUNCIATION
The dual citizenship law
Distinguish it from Mercado case
To whom does this law apply? In Edu Manzano case, his status as dual citizen is NOT a
Let us start with Re-acquisition product of his own volition
Former natural-born citizens who became citizens of a In the case of Arnado: his status is A PRODUCT OF HIS
foreign country. OWN VOLITION. Ginusto niya yuuun!
What will they do? TAKE THE OATH OF ALLEGIANCE Edison So v. Republic
Definition
The will reacquire but they are still US citizens. Naturalization signifies the act of formally adopting a
= dual citizenship foreigner into the political body of a nation by clothing him
or her with the privileges of a citizen.
That is why it is sometimes called the dual citizenship law
Under current and existing laws, there are three ways by
Article XII which an alien may become a citizen by naturalization:
SECTION 7. Save in cases of hereditary succession, no (a) administrative naturalization pursuant to R.A. No.
private lands shall be transferred or conveyed except to 9139;
individuals, corporations, or associations qualified to (b) judicial naturalization pursuant to C.A. No. 473, as
acquire or hold lands of the public domain. amended; and
(c) legislative naturalization in the form of a law enacted
If you retained or reacquired your Philippine citizenship- by Congress bestowing Philippine citizenship to an alien
you are no longer prohibited to acquire private lands
RA 9139
If that be case, will you be qualified to run for an elective Who could avail?
public office? Only native-born aliens
YES
Edison So case
Sec 5 par 2 of RA 9225 covers native-born aliens who lived here in the Philippines
all their lives, who never saw any other country and all
Page 24 of 44
along thought that they were Filipinos; who have RA 6770

demonstrated love and loyalty to the Philippines and Section 21. Officials Subject to Disciplinary Authority;
affinity to the customs and traditions. Exceptions. - The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive
To reiterate, the intention of the legislature in enacting officials of the Government and its subdivisions,
R.A. No. 9139 was to make the process of acquiring instrumentalities and agencies, including Members of the
Philippine citizenship less tedious, less technical and Cabinet, local government, government- owned or
more encouraging which is administrative rather than controlled corporations and their subsidiaries, except
judicial in nature. Thus, although the legislature believes over officials
that there is a need to liberalize the naturalization law of 1. who may be removed only by impeachment
the Philippines, there is nothing from which it can be 2. or over Members of Congress,
inferred that C.A. No. 473 was intended to be amended or 3. and the Judiciary.
repealed by R.A. No. 9139. What the legislature had in
mind was merely to prescribe another mode of acquiring Do not be confused. I AM REFERRING TO ADMIN
Philippine citizenship which may be availed of by native JURISDICTION of ombudsman, not to its Criminal
born aliens. The only implication is that, a native born jurisdiction.
alien has the choice to apply for judicial or
administrative naturalization, subject to the prescribed Appeal from the Ombudsman:
qualifications and disqualifications. Sec 27 direct to SC- declared unconstitutional
Henceforth – appeal goes to the CA
In so case, he chose CA 473 but he invokes that ra 9139
shall be applied to him Under the Civil Service Law, is appeal available?
SABI NG SUPREME COURT, ABA TEKA MUNA, 473 If you are charged administratively and you are a govt ee
PINILI MO E or official and after investigation, you were found guilty.
Can you appeal?
Going back to qualification as endowment. You must have
certain attributes like citizenship It depends. Why? On the penalty imposed
Part 21 If removal/dismissal, etc – one may appeal because the

Let us focus on another area on the Law of Public Officers Civil Service law contemplates an appeal in such cases
Administrative disciplinary cases involving public officers If suspension for NOT MORE than 30 days.. or anything
and employees lower than that like censure, reprimand, etc
1. question of jurisdiction = NO APPEAL
2. appeals The decision becomes immediately final and executory
3. preventive suspension You have to remember that appeal is not a constitutional
4. administrative penalties right, it is merely statutory.
We have to consider several laws Govt ee- charged administratively –exonerated. May the
1. civil service law complainant appeal?
2. ombudsman act RA 6770 NO!
3. LGC RA 7160
Paredes v. Civil Service Commission
Jurisdiction Based on the above provisions of law, appeal to the Civil
If you were to file an admin complaint, where do you file Service Commission in an administrative case is
the complaint? extended to the party adversely affected by the
CSC - Secretary or Head of the Office/Agency/Bureau decision, that is, the person or the respondent employee
APPEAL to the Civil Service Commission who has been meted out the penalty of suspension for
Under the expanded jurisdiction of CA – it will now more than thirty days; or fine in an amount exceeding
Involve a review of the CSComm thirty days salary demotion in rank or salary or transfer,
removal or dismissal from office. The decision of the
LGC – Local Chief Executive disciplining authority is even final and not appealable to
the Civil Service Commission in cases where the penalty
Can you file a complaint directly to the Civil Service imposed is suspension for not more than thirty days or fine
Comm? in an amount not exceeding thirty days salary. Appeal in
YES cases allowed by law must be filed within fifteen days from
It has original and appeallate jurisdiction receipt of the decision.
Ang problema natin dyan Ombusdman ACT
Page 25 of 44
Here the MSPB after hearing and the submission of Who now may appeal the decision of the Court of
memoranda exonerated private respondent Amor of all Appeals to the Supreme Court? Certainly not the
charges except for habitual tardiness. The penalty was respondent, who was declared not guilty of the charge.
only a reprimand so that even private respondent Amor, Nor the complainant George P. Suan, who was merely a
the party adversely affected by the decision, cannot even witness for the government.13 Consequently, the Civil
interpose an appeal to the Civil Service Service Commission has become the party adversely
Commission.chanrobles virtual law library affected by such ruling, which seriously prejudices the
civil service system. Hence, as an aggrieved party, it may
As correctly ruled by private respondent, petitioner appeal the decision of the Court of Appeals to the
Paredes the complainant is not the party adversely Supreme Court.14 By this ruling, we now expressly
affected by the decision so that she has no legal abandon and overrule extant jurisprudence that "the
personality to interpose an appeal to the Civil Service phrase 'party adversely affected by the decision' refers to
Commission. In an administrative case, the complainant the government employee against whom the
is a mere witness (Gonzalo v. D. Roda, 64 SCRA 120). administrative case is filed for the purpose of disciplinary
Even if she is the Head of the Administrative Services action which, may take the form of suspension, demotion
Department of the HSRC as a complainant she is merely in rank or salary, transfer, removal or dismissal from
a witness for the government in an administrative office"15 and not included are "cases where the penalty
case. No private interest is involved in an administrative imposed is suspension for not more than thirty (30) days
case as the offense is committed against the government. or fine in an amount not exceeding thirty days salary"16 or
"when the respondent is exonerated of the charges, there
Sando: is no occasion for appeal."17 In other words, we overrule
Appeal is only available to the party adversely affected prior decisions holding that the Civil Service Law "does
not contemplate a review of decisions exonerating officers
Who is the party adversely affected? or employees from administrative charges" enunciated
The govt ee who is found to be guilty in Paredes v. Civil Service Commission; 18 Mendez
v. Civil Service Commission;19 Magpale v. Civil Service
UNTIL THERE IS CIVIL SERVICE V DACOYCOY!! Commission;20 Navarro v. Civil Service
ABANDONADO NA YANG PAREDES Commission and Export Processing Zone
Hala sige haba ng sinulat. Mahaba buburahin. Kasi di niyo Authority 21 and more recently Del Castillo v. Civil Service
pinasukan law on public officers niyo. WALA NA YAN. Commission
Civil Service v. Dacoycoy Sandoval:

Dacoycoy head of govt vocational school in summer The government employee is NOT the only party that
Admin complaint against him in the civil service could be adversely affected. It could also be the
commission for violation of the law on nepotism government.
2 of his sons were appointed, but it was not he who UNAFFECTED BY DACOYCOY RULING:
appointed them It is elementary that in an administrative case, the
One became his official driver. One became a utility complainant is a mere witness. No private interest is
worker in his office. involved in an administrative case as the offense
committed is against the government. As held by the
Civil Service Comm: GUILTY Supreme Court in Paredes v. Civil Service Commission:
Penalty: removal with forfeiture of retirement benefits "As correctly ruled by private respondent, petitioner
Paredes the complainant is not the party adversely
Issue: May Dacoycoy appeal? affected by the decision so that she has no legal
personality to interpose an appeal to the Civil Service
Of course! He was the party adversely affected Commission. In an administrative case, the
complainant is a mere witness (GONZALO v. D.
CA REVERSED RODA, 64 SCRA 120). Even if she is the Head of
Dacoycoy was now exonerated Administrative Services Department of the HSRC as a
complainant she is merely a witness for the
Issue: Mayroon pa bang appeal? government in an administrative case. No private
interest is involved in an administrative case as the
Remember that in the administrative case, the offense is offense is committed against the government."
committed against the government. The complainant is (Emphasis supplied)
only a witness
Sandoval:
Civil Service Commission appealed to the SC Not the whole of Paredes was abandoned. Only one
aspect was affected that: The term “the party adversely
SC reversed the CA – dismissal with forfeiture affected” may also refer to the government.
Page 26 of 44
THE NATIONAL APPELLATE BOARD (NAB) OF THE Yabut’s contention: e dati niyo na akong sinuspens ng 60
NATIONAL POLICE COMMISSION (NAPOLCOM), days e. naserve ko nay an. Quits na!
Petitioners, v. JOHN A. MAMAUAG
However, in Civil Service Commission v. Dacoycoy (306 SC: that is not correct!
SCRA 425 [1999]), which incidentally is another ponencia The two suspensions are of different nature
of Mr. Justice Pardo, the majority, with
undersigned ponente dissenting, modified the above Petitioner Yabut urges that his preventive suspension of
doctrine [Paredes doctrine] by allowing the CSC to appeal 82 days should be credited to the penalty of 2-month
in cases where the respondent is exonerated of the suspension imposed on him. A preventive suspension
charges. Nevertheless, in both cases, the Court did decreed by the Ombudsman by virtue of his authority
not deviate from the doctrine that the complainant, under Section 21 of Republic Act No. 6770, in relation to
being a mere witness for the government, cannot Section 9 of Administrative Order No. 07, is not meant to
appeal the decision rendered in the administrative be a penalty but a means taken to insure the proper and
case. In Paredes, we declared that the complainant is not impartial conduct of an investigation. We have ruled, in a
the party adversely affected by the decision so that she number of times before, that a preventive suspension may
has no legal personality to interpose an appeal to the be ordered even before the charges are heard, as well as
CSC. In an administrative case, the complainant is a mere before the official concerned is given an opportunity to
witness. No private interest is involved in an prove his innocence, being merely a measure that is
administrative case as the offense is committed against precisely designed in order not to hamper the normal
the government. (Emphasis supplied) course of an investigation through the use of influence
and authority
Preventive suspension
PRUDENCIO QUIMBO vs.
Fidencio Beja Sr. v CA: Definition of Preventive ACTING OMBUDSMAN MARGARITO GERVACIO
Suspension The service of preventive suspension shall not be credited
with the penalty of suspension because they are of
It is imposed during the pendency of an administrative different nature
investigation, preventive suspension is not a penalty in
itself. It is merely a measure of precaution so that the Not being a penalty, the period within which one is under
employee who is charged may be separated, for obvious preventive suspension is not considered part of the actual
reasons, from the scene of his alleged misfeasance while penalty of suspension
the same is being investigated.
Thus, preventive suspension is distinct from the Clearly, service of the preventive suspension cannot be
administrative penalty of removal from office such as the credited as service of penalty. To rule otherwise is to
one mentioned in Sec. 8(d) of P.D. No 857. disregard above-quoted Sections 24 and 25 of the
Administrative Code of 1987 and render nugatory the
Ricardo Gloria v. CA (1999) substantial distinction between, and purposes of imposing
Preventive suspension pending investigation is not a preventive suspension and suspension as penalty.
penalty. It is a measure intended to enable to enable the
disciplining authority to investigate charges against Layno v Sandiganbayan
respondent by preventing the latter from intimidating or "In all cases, preventive suspension shall not extend
any way influencing witnesses against him. If the beyond sixty days after the start of said suspension." It
investigation is not finished and a decision is not rendered may be recalled that the principle against indefinite
within that period, the suspension will be lifted and the suspension applies equally to national government
respondent will automatically be reinstated. If after officials. So it was held in the leafing case of Garcia v.
investigation respondent is found innocent of the charges Hon. Executive Secretary. According to the opinion of
and is exonerated, he should be reinstated. Justice Barrera: "To adopt the theory of respondents that
an officer appointed by the President, facing
PART 22 administrative charges, can be preventively suspended
Preventive suspension is not a penalty indefinitely, would be to countenance a situation where
It should be distinguished from the administrative penalty the preventive suspension can, in effect, be the penalty
of suspension or dismissal, as the case may be itself without a finding of guilt after due hearing,
contrary to the express mandate of the Constitution and
Yabut v Ombudsman Vasquez the Civil Service law." Further: "In the guise of a
At that time, the vice mayor of Makati was Yabut preventive suspension, his term of office could be
Placed under preventive suspension – 60 days shortened and he could in effect, be removed without a
Found guilty of alleged administrative offense finding of a cause duly established after due hearing, in
violation of the Constitution." Clearly then, the policy of
The penalty was suspension of 60 days
Page 27 of 44
the law mandated by the Constitution frowns at a

suspension of indefinite duration No compensation was due to preventive suspension
pending investigation. Payment of salaries during the
An indefinite preventive suspension violates due period of suspension was deleted
process and therefore, should be nullified.
Gloria v CA: No Right to Compensation for Preventive
In effect, it becomes already the penalty of suspension Suspension Pending Investigation Even if Employee is
Exonerated
Let us outline this one now. There are several laws
governing preventive suspension. On the 2nd type of preventive suspension:
You will be paid backwages
Okay, in the bar, when confronted with a problem Preventive suspension pending appeal is punitive in
involving preventive suspension. nature
Full pay for the period of suspension
First thing to do: What was the principal action all about?
REMEMBER that preventive suspension is merely an Preventive suspension pending investigation, as already
incident to an action, whether in connection with an discussed, is not a penalty but only a means of enabling
administrative case or a criminal case the disciplining authority to conduct an unhampered
investigation. On the other hand, preventive suspension
Was it imposed as an incident to an administrative case? pending appeal is actually punitive although it is in effect
Was it imposed as an incident to a criminal case? subsequently considered illegal if respondent is
exonerated and the administrative decision finding him
Administrative: more significant laws to consider when we guilty is reversed. Hence, he should be reinstated with
talk of P.S. in an administrative case: full pay for the period of the suspension. Thus, §47(4)
1. civil service law states that respondent "shall be considered as under
2. LGC preventive suspension during the pendency of the appeal
3. Ombudsman act of 1989 sec 24 in the event he wins." On the other hand, if his conviction
is affirmed, i.e., if he is not exonerated, the period of his
Criminal case: suspension becomes part of the final penalty of
Sec 13 of RA 3019 – THE anti graft law suspension or dismissal.
I am not saying that it is only law involved but this is the
more important law to consider. Local government code:
Sec 63: for local elective officials
Preventive suspension in an administrative case Sec 85: Appointive Local Officials and Employees
What does the Civil service law say when it comes to Sec 85: by whom? By the local chief executive
preventive suspension? He is the disciplining authority of the local government
officials
Maximum duration: 90 days
How long? 60 days.
If investigation has not yet been terminated after 90 days:
you are automatically reinstated. Let us focus now on elective local officials
Who may impose?
However, If you contributed to the delay of the It will depend of the position you are occupuying.
proceedings (nagfile ka ng certiorati etc) that period will
not be included in the computation of the 90-day period Preventive suspension may be imposed:
Gloria v CA (1999) (1) By the President, if the respondent is an elective

There are thus two kinds of preventive suspension of civil official of a province, a highly urbanized or an independent
service employees who are charged with offenses component city;
punishable by removal or suspensions:
(1) preventive suspension pending investigation (§51) (2) By the governor, if the respondent is an elective
official of a component city or municipality; or
(2) preventive suspension pending appeal if the penalty
imposed by the disciplining authority is suspension or (3) By the mayor, if the respondent is an elective official
dismissal and, after review, the respondent is exonerated of the barangay.
What is the significance of knowing the distinction How long? 60 days

between the two? If there are several admin charges in a given year: in no
In the payment of backsalaries. case shall the preventive suspension go beyond 90 days
Page 28 of 44
the Revised Penal Code on bribery is pending in court,

Sec 63 must be correlated with Sec 62 (c) of LGC shall be suspended from office. Should he be convicted
by final judgment, he shall lose all retirement or gratuity
(c) However, no investigation shall be held within benefits under any law, but if he is acquitted, he shall be
ninety (90) days immediately prior to any local entitled to reinstatement and to the salaries and benefits
election, and no preventive suspension shall be which he failed to receive during suspension, unless in the
imposed within the said period. If preventive suspension meantime administrative proceedings have been filed
has been imposed prior to the 90-day period immediately against him.
preceding local election, it shall be deemed automatically
lifted upon the start of aforesaid period. Who may impose the preventive suspension?
THE LAW IS SILENT.
Own term: 90-day period ban? Bakit dinagdagan niyo? Ano kayo, Kongreso?
Why? It can be an effective tool for prosecution and Luciano v Provincial Governor
harrassment The Court
What Court is that?

Ombudsman act It depends.
Section 24. Preventive Suspension. - The Ombudsman or SG 27 or higher: Sandiganbayan

his Deputy may preventively suspend any officer or Lower: RTC or MTC
employee under his authority pending an investigation, if
in his judgement the evidence of guilt is strong, and The mandatory act of suspension under Section 13 of the
(a) the charge against such officer or employee involves Anti-Graft and Corrupt Practices Act should be exercised
(DOG-neglect) dishonesty, oppression or grave solely by the court in which the criminal case has
misconduct or neglect in the performance of duty; been filed under a valid information, for the following
(b) the charges would warrant removal from the service; reasons: (1) Section 13 speaks of two separate and
or (c) the respondent's continued stay in office may distinct methods of investigation: one criminal before the
prejudice the case filed against him. courts of justice, and the other administrative. There is a
recognition in said section that once a criminal case is
The preventive suspension shall continue until the case is filed in court, all other acts connected with the discharge
terminated by the Office of the Ombudsman but not more of court functions should be left to the court. This view
than six months, without pay, except when the delay in finds statutory support, for under the Act the court is
the disposition of the case by the Office of the empowered to punish public officials found guilty with
Ombudsman is due to the fault, negligence or petition of "perpetual disqualification from public office," and under
the respondent, in which case the period of such delay Article 30 of the Revised Penal Code, that penalty entails
shall not be counted in computing the period of "deprivation of public offices and employments, even if
suspension herein provided. conferred by popular election." Suspension being
necessarily included in the greater power of removal, it
Masakit yan. Kalahating taon yan. follows that the court, which has the power to remove, has
also the power to suspend. (2) Section 13 requires that
Civil Service 90 days there be a valid information as a pre-condition of the
LGC Local elective: 60/90 days power to suspend, and considering that the determination
Local appointive:60 days of the validity of an information is essentially a judicial
Ombudsman 6 months function, and that it is only one who knows the facts upon
which suspension is based who can suspend, it is only the
Shall not be confused with criminal jurisdiction of court that has the power to suspend. (3) Section 5 of the
Ombudsman. Decentralization Act of 1967, which provides that" [a]ny
provision of law to the contrary notwithstanding, the
In crim cases: ombudsman has no authority to impose suspension and removal of elective local officials shall be
preventive suspension governed exclusively by the provisions of this section,"
Sandiganbayan is the proper authority. NOT the was not meant to include suspension and removal under
Ombudsman the Anti-Graft and Corrupt Practices Act, for, said Section
5 solely embraces administrative investigations.
Preventive suspension in Criminal Case
The preventive suspension is mandatory.
The Court cannot exercise its discretion
Sec 13 RA 3019
BUT NOT AUTOMATIC
Section 13. Suspension and loss of benefits. Any public
officer against whom any criminal prosecution under a
valid information under this Act or under the provisions of It is mandatory but not automatic
Page 29 of 44
Bayot v. Sandiganbayan
Socrates v. Sandiganbayan The claim of petitioner that he cannot be suspended
This Court has ruled that under Section 13 of the anti-graft because he is presently occupying a position different
law, the suspension of a public officer is mandatory after from that under which he is charged is untenable. The
the validity of the information has been upheld in a pre- amendatory provision clearly states that any incumbent
suspension hearing conducted for that purpose. This public officer against whom any criminal prosecution
pre-suspension hearing is conducted to determine under a valid information under Republic Act 3019 or for
basically the validity of the information, from which the any offense involving fraud upon the government or public
court can have a basis to either suspend the accused and funds or property whether as a simple or as a complex
proceed with the trial on the merits of the case, or correct offense and in whatever stage of execution and mode of
any part of the proceeding which impairs its validity. The participation, is pending in court, shall be suspended from
hearing may be treated in the same -manner as a office. Thus, by the use of the word "office" the same
challenge to the validity of the information by way of a applies to any office which the officer charged may be
motion to quash. holding, and not only the particular office under which
he was charged.
Once the information is found to be sufficient in form and
substance, then the court must issue the order of Another situation:
suspension as a matter of course. There are no ifs and X was a governor. Another Anti-Graft case. While the
buts about it. This is because a preventive suspension is Obudsman was investigating, there came the election. He
not a penalty. It is not imposed as a result of judicial ran for Congressman and was elected. Ombudsman filed
proceedings. In fact, if acquitted, the official concerned an anti-graft case. Sandiganbayan placed him under
shall be entitled to reinstatement and to the salaries and suspension.
benefits which he failed to receive during suspension. In
view of this latter provision, the accused elective public That is an encroachment of the prerogative of the House
officer does not stand to be prejudiced by the immediate or Representatives Sec 16(3) Article VI: 3) Each House
enforcement of the suspension order in the event that the may determine the rules of its proceedings, punish its
information is subsequently declared null and void on Members for disorderly behavior, and, with the
appeal and the case dismissed as against him. Taking concurrence of two-thirds of all its Members, suspend or
into consideration the public policy involved in expel a Member. A penalty of suspension, when imposed,
preventively suspending a public officer charged under a shall not exceed sixty days.
valid information, the protection of public interest will
definitely have to prevail over the private interest of the That contention is not correct.
accused. 29
The suspension imposed by Sandiganbayan is not a
To further emphasize the ministerial duty of the court penalty! The one contemplated there is a penalty.
under Section 13 of Republic Act No. 3019, it is said that
the court trying a case has neither discretion nor duty to However, pag indefinite suspension, iba nay an. It
determine whether or not a preventive suspension is becomes punitive in nature.
required to prevent the accused from using his office to
intimidate witnesses or frustrate his prosecution or Part 23
continue committing malfeasance in office Administrative penalties
Question: How long? Aguinaldo v. Santos

Again, the law is silent. Doctrine of Condonation
The underlying theory is that each term is separate from
Gonzaga v. Sandiganbayan other terms, and that the reelection to office operates as
Applying by analogy, the Civil Service Law – 90 days a condonation of the officer's misconduct to the extent of
cutting off the right to remove him therefor.
X was a municipal mayor. He was charged criminally
before the Ombudsman. Anti-Graft case. Criminal case. The Court should never remove a public officer for acts
While the Ombudsman was investigating, there came the done prior to his present term of office. To do otherwise
election. He ran for Governor. He won. would be to deprive the people of their right to elect their
officers.
Preventive suspension order against now Governor X.
Governor X: improperly issued. That offense was When a people have elected a man to office, it must be
committed when I was a municipal mayor, I am a assumed that they did this with knowledge of his life and
Governor now character, and that they disregarded or forgave his fault
or misconduct, if he had been guilty of any. It is not for the
That is not correct court, by reason of such fault or misconduct, to practically
overrule the will of the people.
Page 30 of 44
For elective officers lang yan ah. Rule on nepotism:

Included in the Civil Service Law itself
Mayor Garcia v. Arturo Mojica
G.R. No. 139043 September 10, 1999 Within the 3rd civil degree of any of the ff:
The rationale for this holding is that when the electorate 1. appointing authority
put him back into office, it is presumed that it did so with 2. recommending authority
full knowledge of his life and character, including his past 3. Chief of the Bureau or Office
misconduct. If, armed with such knowledge, it still reelects 4. Person exercising immediate supervision over the
him, then such reelection is considered a condonation of appointee
his past misdeeds.
4 situations covered. It is immaterial who the appointing
This is for administrative cases only. It does not find or recommending authority is.
application in criminal cases.
Exempted from the operation of the rules on nepotism
THIS DOCTRINE OF CONDONATION HAS BEEN 1. employed in a confidential capacity
ABANDONED. 2. teachers
3. physicians
Conchita Carpio-Morales v CA 6th Division 4. members of the armed forces
G.R. Nos. 217126-27, November 10, 2015 5. Contracts marriage with someone in the same office
SC discussed the origin during his or her appointement – retention of both
It is only applied in States where there is a law allowing it. husband and wife may be allowed
Besides, the Pascual case (where it was first laid down by
the Courts) was decided under the 1935 Constitution INGATAN NIYO YAN PAG LOCAL GOVERNMENT sec
79: up to the 4th degree
Do not forget that public office is a public trust.
In any other case- apply the civil service law – up to the
The abandonment of the doctrine shall be given 3rd degree
prospective application only
In the case of Debulgado v civil service commission
What are the known prohibitions? Contention: rule on nepotism applies only to original
appointment and not to promotional appointment
Article IX-B
SECTION 7. No elective official shall be eligible for The Supreme Court did not agree
appointment or designation in any capacity to any public
office or position during his tenure. It applies to ALL KINDS OF APPOINTMENT IN THE
GOVERNMENT SERVICE. The reason for this is simple:
Xpn: if he will hold such office in an ex-officio capacity the law did not make any distinction. If the law does not
distinguish, neither should we.
2nd paragraph
Unless otherwise allowed by law or by the primary Laurel V v. Civil Service Commission
functions of his position, no appointive official shall hold Laurel appointed his brother civil security officer. Was
any other office or employment in the Government or any there a violation of the law on nepotism
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their RULING: NO
subsidiaries. It is a confidential employee
Bodyguard yan, pinaganda lang yan.
2 xpns:
1. if allowed by law Ang problema ganito. Provincial Administrator retired. It
2. or allowed by the primary functions of his position was a career position that time. Now, it is a coterminous
position with the appointing authority.
Sec 5(4) Article XVI: special prohibition on members
of the armed forces He now designated his brother as the Acting Provincial
(4) No member of the armed forces in the active service Administrator.
shall, at any time, be appointed or designated in any
capacity to a civilian position in the Government including Contention of Laurel: I did not APPOINTED HIM. I ONLY
government-owned or controlled corporations or any of DESIGNATED HIM as acting Provincial Administrator
their subsidiaries.
Pag retired na, pwede yun
Page 31 of 44
SC: For purposes of the law on nepotism, 1, to prevent establishment of political dynasties
appointment and designation shall be treated as the
same 3. to enhance the freedom of choice of the people
2 conditions must concur for sec 8 Article X to
It seems clear to Us that Section 49 of P.D. No. 807 does apply
not suggest that designation should be differentiated from 1. that the local official was elected for 3 consecutive
appointment. Reading this section with Section 25 of said terms
decree, career service positions may be filled up only by 2. that he has fully served 3 consecutive terms
appointment, either permanent or temporary; hence a Borja Jr case
designation of a person to fill it up because it is vacant, is
necessarily included in the term appointment, for it Mayor Capco first elected vice-mayor. In 1989 mayor
precisely accomplishes the same purpose. Moreover, if a borja sr died. Vice mayor became mayor BY OPERATION
designation is not to be deemed included in the term OF law. He ran for mayor and won may 1992. 1995 again
appointment under Section 49 of P.D. No. 807, then the won. 1998 he rain again for mayor. It was questioned.
prohibition on nepotism would be meaningless and
toothless. Any appointing authority may circumvent it by First requisite is absent.
merely designating, and not appointing, a relative within He was NOT ELECTED as mayor for the first term. He
the prohibited degree to a vacant position in the career merely continued the term of the late Mayor Borja
service. Indeed, as correctly stated by public respondent,
"what cannot be done directly cannot be done Lonzanida v COMELEC
indirectly." Lonzanida first elected as mayor 1988
1992 ran for mayor and won
Prohibition on the President 1995 ran again for mayor and won
Sec 13(2) Article VII
The spouse and relatives by consanguinity or affinity In May 1995 elections, there was an election protest
within the fourth civil degree of the President shall not
during his tenure be appointed as March 1998: protest was decided against him
1. members of the Constitutional Commissions,
2. or the Office of the Ombudsman, May 1998: he ran again
3. or as Secretaries, Undersecretaries, chairmen or heads
of bureaus or offices, including government-owned or Is he qualified?
controlled corporations and their subsidiaries. How may times was he elected mayor?
TWICE
Civil Service Up to the 3rd degree
LGC Up to the 4th degree In the May 1995, he was merely the presumptive mayor.
Constitution – on the SPOUSE and relatives – Eventually, He lost In the election protest
President up to the 4th degree (see
the offices) Also, did not fully serve the last term.
Limitations on the term of office JUST APPLY THE TWO CONDITIONS
Article X Mayor H of Puerto Princesa City was first elected Mayor

SECTION 8. The term of office of elective local officials, May 1992, okay?
except barangay officials, which shall be determined by May 1995, he ran again for Mayor and won.
law, shall be three years and no such official shall serve May 1998 he ran again for mayor and won.
for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not Will he still be qualified to ran again for the May 2001
be considered as an interruption in the continuity of his elections?
service for the full term for which he was elected. OF COURSE NO!
Borja Jr v. COMELEC and CAPCO Jr (1998) That’s why he ran for Governor. Ang gugulang ng mga to.
the term limit for elective local officials must be taken to Siya mismo alam niya.
refer to the right to be elected as well as the right to serve
in the same elective position. Consequently, it is not 2002 mayor H ran again in the recall elections for Mayor.
enough that an individual has served three consecutive Is he qualified in the special election for Mayor?
terms in an elective local office, he must also have
been elected to the same position for the same number of SC: PWEDE YAN
times before the disqualification can apply What the Constitution prohibits is the immediate
reelection for the 4th term after the 3rd consecutive term
There are two policies embodied in this provision:
Page 32 of 44
A recall election is a subsequent election BUT NOT an to office. Preventive suspension is no different because it
immediate election after the 3rd term disrupts actual delivery of service for a time within a term.
Adopting such interruption of actual service as the
Socrates ruling standard to determine effective interruption of term under
Term served in the special recall election shall be the three-term rule raises at least the possibility of
considered as one full term for purposes of applying the confusion in implementing this rule, given the many
disqualification provision modes and occasions when actual service may be
interrupted in the course of serving a term of office. The
OVERTURNED IN ANOTHER ENBANC RULING: standard may reduce the enforcement of the three-term
Mendoza v. COMELEC limit rule to a case-to-case and possibly see-sawing
QUALIFIED determination of what an effective interruption is.
Not being a full term, a recall term shall not be used for Montebon v. COMELEC
purposes of disqualification First term: 1998-2001
2nd term: 2001-2004
Wala na yang Socrates Ruling! 3rd term: 2004-2007
But that is a mere obiter dictum there. Ang ruling talaga
dun: the constitution does not prohibit a re-election for 4th He ran again
term AS LONG AS it is not immediately after the 3rd During his 2nd term-the Vice Mayor retired. He had to
consecutive term. assume office as Vice Mayor. That is not a voluntary
renunciation. There is now a renunciation. I can ran again
Aldovino Jr v. COMELEC as a Sangguniang Kagawad
During 3rd term- he was suspended
He ran again. SC: CORRECT!
He had to assume office as vice mayor by operation of
Contention: That was not voluntary renunciation of office law. That is not voluntary renunciation of office.
when I was suspended. I did not serve my full term
Relevant provision:
SC DID NOT AGREE Voluntary renunciation of the office for any length of time
Was there an interruption? NO shall not be considered as an interruption in the continuity
To constitute an interruption, it must constitute LOSS OF of his service for the full term for which he was elected.
TITLE.
Papaano ngayon pag found guilty for an administrative
When you are placed under preventive suspension, there offense. The penalty was removal from office
was no loss of title there.
Was there an interruption? Is he qualified to run for the 4th
A preventive suspension cannot simply be a term time?
interruption because the suspended official continues to
stay in office although he is barred from exercising the SEC 40(B) OF THE LGC
functions and prerogatives of the office within the Section 40. Disqualifications. - The following persons are
suspension period. The best indicator of the suspended disqualified from running for any elective local position:
official’s continuity in office is the absence of a permanent
replacement and the lack of the authority to appoint one (a) Those sentenced by final judgment for an offense
since no vacancy exists. involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years
To allow a preventively suspended elective official to run after serving sentence;
for a fourth and prohibited term is to close our eyes to this
reality and to allow a constitutional violation through (b) Those removed from office as a result of an
sophistry by equating the temporary inability to discharge administrative case;
the functions of office with the interruption of term that the
constitutional provision contemplates. To be sure, many SO HE IS DISQUALIFIED
reasons exist, voluntary or involuntary – some of them Not be because of Sec 8 of Article X, but because of sec
personal and some of them by operation of law – that may 40(b) of LGC
temporarily prevent an elective office holder from
exercising the functions of his office in the way that Lingating v. COMELEC
preventive suspension does. A serious extended illness, SC: The administrative decision must have attained
inability through force majeure, or the enforcement of a FINALITY already before disqualification under sec 40(b)
suspension as a penalty, to cite some involuntary of LGC MAY APPLY
examples, may prevent an office holder from exercising
the functions of his office for a time without forfeiting title
Page 33 of 44
If still subject to pending appeal or certiorari, the (3) The city or municipal mayor, in the case of
disqualification may not apply sangguniang barangay, upon recommendation of the
sangguniang barangay concerned.
Part 24 BUT the appointee shall be in the same political party.

How is the vacancy filled?
The law on automatic succession Farinas v Barba
The last ranking Sangguniang Member resigned. He did
X ran for Kagawad Sangg. Panglungsod for District 1. He not belong to any political party. Ginawa ni Mayor Barba
won nag appoint siya ng tao niya upon recommendation of
Y won also, but in District 2. Sangguniang Bayan
X obtained 5k votes out of 10k registered voters Si Governor Farinas nag appoint din siya ng tao niya
Y obtained 4.5k votes out of 8k
The appointee of mayor barba? Or the appointee of
Ranking shall be determined by the number of votes governor farinas?
required in proportion to the number of registered voters
IF NO POLITICAL PARTY:
The local chief executive shall appoint!
Sec 44 last paragraph LGC
For purposes of succession as provided in the Chapter, Applicable provision:
ranking in the sanggunian shall be determined on the 45
basis of the proportion of votes obtained by each winning (c) In case or permanent vacancy is caused by a
candidate to the total number of registered voters in each sanggunian member who does not belong to any political
district in the immediately preceding local election. party, the local chief executive shall, upon
recommendation of the sanggunian concerned, appoint a
X – 50% lang yan qualified person to fill the vacancy.
Y – more than 50%
There are two appointing authorities.
Z obtained 5k votes in the same district- same number of Who is entitled? The appointee of Mayor Barba or the
votes in District 1 appointee of Governor Farinas?
44 (c) SC: NEITHER!!!

c) A tie between or among the highest ranking sanggunian 45c must be read with Sec 45a
members shall be resolved by the drawing of lots. The only difference is that in Sec 45b is that the
sanggunian member belongs to a pol par
Just read Sec 44. Andyan yan e.
The appointing authority under sec 45a must likewise be
Question: the appointing authority in sec 45c
There are 8 Sangguniang Bayan mambers
The last ranking, the 8th in rank, died Fact: sangguninang bayan of a component city
How shall the vacancy be filled up now?
So who is the appointing authority?
SEC 45 Governor
First paragraph: who shall appoint?
(a) Permanent vacancies in the sanggunian where It should be Governor Farinas
automatic succession provided above do not apply shall
be filled by appointment in the following manner: Kaya lang it should be upon the recommendation of the
sangguninang concerned.
(1) The President, through the Executive Secretary, in the
case of the sangguniang panlalawigan and the The one who recommended the appointee to Governor
sangguniang panlungsod of highly urbanized cities and Farinas was not the sangguinang bayan of san Nicholas.
independent component cities;
We think that the phrase "sanggunian concerned" in
(2) The governor, in the case of the sangguniang §45(c) should more properly be understood as
panlungsod of component cities and the sangguniang referring to the Sanggunian in which the vacancy is
bayan; created. This is in keeping with the policy implicit in
§45(a) (3).
Page 34 of 44
On the other hand, §45(c) must be understood as

providing for the filling of vacancies created by members Governor appointed somebody from Reforma
who do not belong to any political party. Consequently,
§45 must be construed to mean that — SC: REFORMA
I. Where the Permanent Vacancy is Caused by a The reason behind the right given to a political party to
Sanggunian Member Belonging to a Political Party nominate a replacement where a permanent vacancy
A. Sangguniang Panlalawigan and Sangguniang occurs in the Sanggunian is to maintain the party
Panlungsod of highly urbanized cities and independent representation as willed by the people in the election.
component cities — The President, through the Executive
Secretary, upon the nomination and certification of the With the elevation of petitioner Tamayo, who belonged to
political party to which the member who caused the REFORMA-LM, to the position of Vice-Mayor, a vacancy
vacancy belonged, as provided in §45 (b). occurred in the Sanggunian that should be filled up with
someone who should belong to the political party of
B. Sangguniang Panlungsod of component cities and petitioner Tamayo. Otherwise, REFORMA-LM’s
Sangguniang Bayan — The Governor upon the representation in the Sanggunian would be diminished.
nomination and certification of the political party to which To argue that the vacancy created was that formerly held
the member who caused the vacancy belonged, as by Rolando Lalas, a LAKAS-NUCD-Kampi member,
provided in §45 (b). would result in the increase of that party’s representation
in the Sanggunian at the expense of the REFORMA-LM.
III. Where the Vacancy is Caused by a Sanggunian This interpretation is contrary to the letter and spirit of the
Member Not Belonging to a Political Party law and thus violative of a fundamental rule in statutory
A. Sangguniang Panlalawigan and Sangguniang construction which is to ascertain and give effect to the
Panlungsod of highly urbanized and independent intent and purpose of the law. As earlier pointed out, the
component cites — The President, through the Executive reason behind par. (b), section 44 of the Local
Secretary, upon recommendation of the Sangguniang Government Code is the maintenance party
Panlalawigan or Sangguniang Panlungsod as the case representation in the Sanggunian in accordance with the
may be will of the electorate.
B. Sangguniang Panlungsod of component cities and The "last vacancy" in the Sanggunian refers to that
Sangguniang Bayan — The Governor upon created by the elevation of the member formerly
recommendation of the Sangguniang Panlungsod or occupying the next higher in rank which in turn also had
Sangguniang Bayan as the case may be become vacant by any of the causes already enumerated.
The term "last vacancy" is thus used in Sec. 45 (b) to
III. Where the Vacancy is Caused by a Member of the differentiate it from the other vacancy previously created.
Sangguniang Barangay — City or Municipal Mayor upon The term by no means refers to the vacancy in the No. 8
recommendation of the Sangguniang Barangay position which occurred with the election of Rolando Lalas
to the seventh position in the Sanggunian. Such
Navarro v. CA G.R. No. 141307 March 28, 2001 construction will result in absurdity.
The composition of municap govt
Mayor – LAKAS NUCD Gamboa Jr. v. Aguirre JR (1999)
VICE –LASKAS NUCD Governor went abroad
Designated Vice-G as Acting Governor. Went to preside
1st Sangguninang member up to 5th- REFORMA at the Sangguniang Panlalawigan
6TH – LAKAS (in law, the presiding officer is Vice G)
7TH – REFORMA
8TH – LAKAS SC’s Ruling:
Being the Acting Governor, the Vice-Governor cannot
How many from lakas in SB? 2 continue to simultaneously exercise the duties of the latter
Lakas? 6 office, since the nature of the duties of the provincial
Governor call for a full-time occupant to discharge them.
Mayor died Such is not only consistent with but also appears to be the
Vice who belonged to Lakas became mayor clear rationale of the new Code wherein the policy of
performing dual functions in both offices has already been
1st SB naging vice abandoned. To repeat, the creation of a temporary
vacancy in the office of the Governor creates a
8th spot became vacant. corresponding temporary vacancy in the office of the
From what political party? Vice-Governor whenever the latter acts as Governor by
virtue of such temporary vacancy. This event constitutes
Lakas: sa amin. He was the one who caused the last an "inability" on the part of the regular presiding officer
vacancy (Vice Governor) to preside during the SP sessions, which
Page 35 of 44
thus calls for the operation of the remedy set in Article Gov. Rodriguez: I have not yet been convicted by
49(b) of the Local Government Code — concerning the final judgment from any of those criminal cases in
election of a temporary presiding officer. The continuity California
of the Acting Governor's (Vice Governor) powers as
presiding officer of the SP is suspended so long as THE SC DID NOT AGREE WITH GOV RODRIGUEZ.
he is in such capacity. Petitioner's position is perspicuous and to the point. The
Who shall now preside at SP session? law, he asseverates, needs no further interpretation and
Under Section 49(b), "in the event of the inability of the construction. Section 40(e) of Republic Act No. 7160, is
regular presiding officer to preside at the sanggunian rather clear, he submits, and it disqualifies "fugitive from
session, the members present and constituting a quorum justice" includes not only those who flee after conviction
shall elect from among themselves a temporary presiding to avoid punishment but likewise those who, after
officer." being charged flee to avoid prosecution. This definition
truly finds support from jurisprudence
Do not say the highest SP member! You will go wrong.
Because this is only a temporary vacancy. You will be Rodriguez v. COMELEC
correct if it is a permanent vacancy. E temporary vacancy What is controlling is the intent to evade the jurisdiction of
lang yan e. Do not apply by analogy the rule on permanent the Court
vacancy if there is a law governing temporary vacancy.
Dito meron e! Intent to evade on the part of a candidate must therefore
be established by proof that there has already been a
Part 25 conviction or at least, a charge has already been filed, at
Section 40. Disqualifications. - The following persons are the time of flight. Not being a "fugitive from justice" under
disqualified from running for any elective local position: this definition, Rodriguez cannot be denied the Quezon
Province gubernatorial post.
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by Here, the cases were filed against him in California 6
one (1) year or more of imprisonment, within two (2) years months after he already returned to the Philippines
after serving sentence; NO INTENT TO EVADE.
Commentary: (f) Permanent residents in a foreign country or those who

This is not a perpetual disqualification. Partial have acquired the right to reside abroad and continue to
lang. Within 2 years after the service of their avail of the same right after the effectivity of this Code;
sentence
Merely reinforces Sec 68 of OEC
Offense involving moral turpitude and
Acts of Lasciviousness
Violation of Anti-Fencing law even if punished by (g) The insane or feeble-minded. – pinakamadali yan.
special law – malum prohibitum Marami nito sa Kongreso
(b) Those removed from office as a result of an Recall

administrative case; SEC 69-74 YAN
MADALING TANDAAN YAN 69!
Lingating case: must have attained finality. I told
you already Only one ground for Recall: LOSS OF CONFIDENCE
(c) Those convicted by final judgment for violating the oath That is a political question. Therefore, a forbidden territory
of allegiance to the Republic; on the part of the Court.
(d) Those with dual citizenship; Recall is not the political question, but it is the loss of
confidence as a ground for recall
Mercado v manzano: refers to dual allegiance
2 STAGES
(e) Fugitives from justice in criminal or non-political cases 1. Initiation
here or abroad; 2. Recall election
Marquez v. COMELEC In that Recall election, the official sought to be recalled
AUTOMATICALLY becomes a candidate
Marquez wants Rodriguez qualified – on ground
of “fugitive form justice” – offense in California He is expressly prohibited from resigning. He is forced to
fight it out.
Page 36 of 44
How do you initiate recall? Paras v COMELEC

Previously, there are 2 ways: He was a Punong Barangay there was a petition calling
1. preparatory recall assembly; or for his recall. Special recall election for punong barangay
2. petition – 25% was scheduled. Ang problema inisechedule na ang
THAT WAS BEFORE. National SK elections.
RA 9244
Abolished Preparatory Recall Assembly as a mode Contention: it falls within the 1-year prohibitory period. An
SK election is a regular local election
There is only one way: PETITION
THE SC DID NOT AGREE
How many ? nagbracketing nay an, wala na yang 25% construe regular local election as one referring to an
election where the office held by the local elective official
If number of registered voters: (BRACKETING) sought to be recalled will be contested and be filled by the
Does not exceed 20,000 25% electorate.
Exceeds 20k but not 20%
more than 75k Angubong v. COMELEC
Exceeds 75k but not 15% 1 year prohibition also will not apply.
more than 300k
Exceeds 300k 10% Private respondent is correct in saying that in the light of
our pronouncement in Paras v. COMELEC, the recall
Angobung v. COMELEC election scheduled on December 2, 1996 in the instant
NOTE: wala pang 9244 nito case cannot be said to be barred by the May 12, 1997
approved the Petition for Recall filed and signed by only Barangay Elections. In construing the meaning of the
one registered voter — herein private respondent Ma. term, "regular local election" in Section 74 of the Local
Aurora Siccuan de Alban, against petitioner — incumbent Government Code of 1991 which provides that "no recall
Mayor Ricardo Angobung; shall take place within one (1) year . . . immediately
preceding a regular local election," we ruled that for the
There was a petition for recall 1 year after. Only one time bar to apply, the approaching regular local
signatory: KALABAN NIYA election must be one where the position of the official
to be recalled, is to be actually contested and filled by
E yung COMELEC INAKSYUNAN! the electorate. Thus, in the instant case where the time
bar is being invoked by petitioner mayor in view of the
Nagschedule yung COMELEC ng signing day. On that approaching Barangay Elections in May 1997, there can
day, all those who wanted to file a recall shall sign. be no application of the one year bar, hence no invalidity
may be ascribed to Resolution No. 96-2951 on this
Mayor Angobung went SC via petition for certiorari ground.
SC: OF COURSE HE WAS SUSTAINED
We cannot sanction the procedure of the filing of the recall

petition by a number of people less than the foregoing
25% statutory requirement, much less, the filing thereof Eminent domain – can even be delegated to quasi-public
by just one person, as in the instant case, since this is corporations
indubitably violative of clear and categorical provisions of
subsisting law. Police Power:
1. Lawful purpose
Section 74. Limitations on Recall. - 2. Lawful means
(a) Any elective local official may be the subject of a recall How do you detect if what is involved is an exercise of
election only once during his term of office for loss of police power or the power of eminent domain?
confidence.
Purpose of police power: to destroy the property
(b) No recall shall take place within one (1) year from the Eminent domain: only private properties, purpose is to
date of the official's assumption to office or one (1) year convert the property to public use
immediately preceding a regular local election.
- THAT SIMPLY MEANS that you could only subject him In expropriation of lands, there are two stages:
to recall ONLY DURING THE 2ND YEAR OF THIS TERM First stage: Determination of the authority of the
expropriating agency
Again, Angubong v COMELEC
Page 37 of 44
Court will issue order of condemnation

Part 26
Second stage: Determination of just compensation Case:
: free of charge newspaper spaces for COMELEC for all
Implementation of agrarian reform law: includes the candidates
exercise of both police power and power of eminent RULING:
domain Again, invalid exercise of power of eminent domain
ASSOCIATION OF SMALL LANDOWNERS IN THE Mahalaga yang Section 9 (ARTICLE III)

PHILIPPINES, INC. v. SECRETARY OF AGRARIAN Is that a right? It is more of a limitation on the power of
REFORM eminent domain.
G.R. No. 78742 July 14, 1989
U.S. v. Causby
Police power: retention limit Taking may include impairment of the use of the property
Eminent domain: excess of retention limit will be taken to which it is intended
and sold to beneficiaries.
When we speak of taking in the constitutional sense, it is
The cases before us present no knotty complication not limited to the actual physical dispossession of the
insofar as the question of compensable taking is property
concerned. To the extent that the measures under
challenge merely prescribe retention limits for In this case, yung lupa niya devoted poultry. Government
landowners, there is an exercise of the police power for made an airport beside his property. Sa ingay nun,
the regulation of private property in accordance with the nagugulat mga manok niya! Ayaw na mangitlog!
Constitution.
Is he entitled to payment of just compensation?
But where, to carry out such regulation, it becomes
necessary to deprive such owners of whatever lands they US SUPREME COURT: YES!
may own in excess of the maximum area allowed, there
is definitely a taking under the power of eminent domain CAMARINES NORTE ELECTRIC COOPERATIVE, INC.
for which payment of just compensation is imperative. The (CANORECO) v. CA
taking contemplated is not a mere limitation of the use of G.R. No. 109338 November 20, 2000
the land. What is required is the surrender of the title to Yung mga linya ng meralco, kung san san dumadaan yan.
and the physical possession of the said excess and all Ngayon, kung yung lupa mo tinayuan ng linya ng
beneficial rights accruing to the owner in favor of the kuryente, pwede k aba magtanim ng mga puno? E lupa
farmer-beneficiary. This is definitely an exercise not of the mo yan, titulado yan! You are deprived of the use and
police power but of the power of eminent domain. enjoyment of the property
ERICTA V CITY GOVERNMENT Ginawa ng may-ari – pinutol yung poste. Ano nangyari?
Ordinance: At least six (6) percent of the total area of the E di walang kuryente sa buong lugar
memorial park cemetery shall be set aside for charity
burial of deceased persons who are paupers SC: The acquisition of an easement of a right-of-way
falls within the purview of the power of eminent
Contention: it violates due process domain.
QC city government: police power However, there is an impairment of the use of property-
you are entitled to just compensation
RULING:
THIS IS AN INVALID EXERCISE OF THE POWER OF
THE EMINENT DOMAIN.
There is no reasonable relation between the setting aside One of them is not even a right, yung Section 9. It is a
of at least six (6) percent of the total area of an private limitation on the power of eminent domain.
cemeteries for charity burial grounds of deceased
paupers and the promotion of health, morals, good order, SECTION 15
safety, or the general welfare of the people. The Inulit sa Sec 18 of Article VII
ordinance is actually a taking without compensation of a
certain area from a private cemetery to benefit paupers Forget sec 9 and 15. Bente na lang. Ang dali dali niyan e.
who are charges of the municipal corporation. Instead of
building or maintaining a public cemetery for this purpose, What kind of rights?
the city passes the burden to private cemeteries. Civil and Political Rights
Page 38 of 44
They are limitations of the power of the State It strikes deep into the essence of due process.
What aspect of due process? SUBSTANTIVE
4 sections of Bill of rights are governed by the
Exclusionary Rule Procedural – the manner by which the law is to be
enforced: notice and hearing or the opportunity to be
Incompetent Evidence! heaed.
SEC 2 right against unreasonable search and seizure Substantive – the law itself must be fair, reasonable, and
just
SEC 3 privacy of communication and correspondence
The act must be UTTERLY vague on its face that it cannot
SEC 12 custodial investigation be clarified either by a saving clause or by statutory
construction
SEC 17 the right against self-incrimination
It might be imperfectly crafted only.
It becomes the fruit of the poisonous tree. They are
excluded by the Constitution. They are incompetent Balikan muna natin 4 sections governed by exclusionary
evidence. rule:
They will not be admissible for any purpose and for any Sec 2: RIGHT AGAINST UNREASONABLE
proceeding. SEARCHES, SEIZUES, AND ARREST
First 11 sections: civil and political rights in general Not all arrest, search, and seizure are prohibited. ONLY
unreasonable ones.
12 onwards: it now has focused on the rights of the
accused. The focus has narrowed! When do you consider an arrest, search or seizure to be
valid?
12: custodial investigation
13 bail GR: There must be a search warrant or warrant of arrest
14 during trial
15 privilege of the writ What are the requisites of a valid search warrant or
16 speedy disposition of cases warrant of arrest?
17 right against self-incrimination 1. probable cause
18 involuntary servitude 2. determined personally by the judge
19 prohibition against cruel, excessive, inhumane 3. after examination under oath of the complainant and
punishment the witnesses he may produce (not of the accused!)
20 non-imprisonment for non-payment of debt 4. particularly describing the place to be searched or the
21 right against double jeopardy persons or things to be seized
22 prohibition on ex post facto law and bill of attainder
Stonehill v. Diokno
Oh, ano yan? Rights of the accused! A general warrant will not do.
You must correlate it with your criminal procedure. Facts: Search warrant “for violation of the Tariff and
Customs Code”
Void for vagueness doctrine:
Violates due process SC: teka muna! Di pwede yan! Ang daming offenses sa
What is it? tariff and customs code
It is void because it is vague!
Ganun lang Because a general warrant partakes of a nature of a
fishing expedition for evidence by the State.
Why is it vague?
Because the law lacks comprehensible standards so that It must always be issued be in connection with a
men of common intelligence would necessarily guess as specific offense.
its meaning
Repugnant to the constitution in two respects: Take note: ONLY a judge can issue warrant of arrest or
(1) violates due process as it fails to give persons due search warrant. Nobody else. Not even the President of
notice of what conduct to avoid the Philippines.
(2) unbridled discretion- arbitrary flexing of the
Government muscle 1935 Consti: copied from US
Page 39 of 44
Nung time ni President Marcos, he had that amendment! Government of USA v Judge Purganan
Dinagdagan, “not only a judge can issue warrant of arrest, Before a judge issues a warrant of arrest on an extraditee,
and such other officers as may be authorized by law” is prior notice and hearing required? NO
1. sec 6 pd 1069 “extradition law” : the word used is
So bumalik tayo sa 1935 Constitution “immediately”
Salazar v Takoso 2. constitutional sec 2 of bill of rights

Labor Code provision authorizing Sec of Labor issuing a Even sec 2 of bill of rights did not require prior notice and
warrant of arrest in illegal recruitment cases – hearing. THAT IS NEVER A REQUIREMENT
UNCONSTITUTIONAL
Distinguish between Judicial due process and
PART 27 Administrative due process
Makasiar
Crespo v. Mogul Duration of:
Search warrant: 10 days
Determination of probable cause Warrant of arrest: no duration
Soliven v Makasiar
Can you serve them in a foreign country?
That is an executive function. It belongs to the Prosecutor Of course no!
– under the DOJ – under the executive branch What are the characteristics of a criminal law??
TERRITORIAL!
For the purpose of issuing a warrant of arrest/search
warrant- judicial function Kahit na may extradition treaty.
The judge is not bound by the finding of probable cause What is an ex post facto law?
by the Constitution because he is mandated by the Penal law that is given retroactive effect that is prejudicial
Constitution to determine it PERSONALLY. He cannot to the accused
abdicate it.
Instances of valid warrantless arrest/search/seizure
He cannot merely rely on the finding of probable cause of BUT these are the exceptions. Do not make them the
the prosecutor. GR
Sec 5 Rule 113 of the Rules of Court
If he wanted to be faithful to the Constitution, he should
determine the probable cause PERSONALLY Part 28
1. in flagrante delicto
There are two determinations of probable cause 2. arrest in hot pursuit
3. escapee/fugitive from justice
First of all, how is a criminal action commenced?
It is commenced by the filing of criminal complaint Valid warrantless searches
Where do you file it? 1. incidental to a lawful arrest
Prosecutor’s Office
Plain view
If there is no private offended party? The appropriate law Must be limited to the immediate vicinity of the arrest
enforcement officers will file the complaint. Must be inadvertent
Must be immediately apparent to him that it is unlawful
Once complaint is filed, what will the prosecutor do? HE
WILL CONDUCT PRELIMINARY INVESTIGATION – the Checkpoints
prosecutor determines the existence of probable cause Restriction on movement
for the purpose of filing the criminal Information in Court. May violate right of the people against unreasonable
searches and seizures
Crespo v. Mogul
Before info is filed – executive Balmonte v. de villa
Once filed – it is automatically converted into a judicial -kakatapos pa lang ng coup d’etat that time
proceeding Abnormal situation!
Nobody can dictate the judge of how he should dispose Kaya pinayagan ng Supreme Court
of the case. -valid exercise of the State of its police power
Otherwise, it will violate the rule on separation of powers Right of the state to defend itself not only against external
enemies, but also internal enemies
Development in this area
Very stringent rules on searches on checkpoints:
Page 40 of 44
1. must be pre-announced Felt something bulging. She said, that was an additional
2. must be stationery panty girdle because she just had an ectopic pregnancy
3. limited to only visual search, usually with the use of The officer was not convinced. Went to superior.
flashlights Went to the nearby CR. STRIP SEARCH. The said panty
girdle are bags of shabu
DO NOT USE THE TERM “PLAIN VIEW” VISUAL
SEARCH IS THE RIGHT TERM SC: THAT WAS VALID
Intrusive search is NOT allowed. People v. Susan Canton

Sc is more specific there. Another instance of valid
Consented search: for obvious reasons. warrantless search at airports
Search of a moving vehicle – pag nagpasearch warrant Administrative searches under the Building Code and
ka pa aba baka nasa Tarlac na yang pinasearch mo under the Fire Code
- do NOT apply the strict probable cause requirement
Stop and Frisk Search – Terry SEARCH
Terry v Ohio SJS v. Dangerous Drugs Board
Is he performing overt actions committing an offense? Questioned mandatory drug testing under RA 9165
WALA
Ponente: CJ Corona
What justifies a terry search? SC: valid warrantless search
The interest of effective crime prevention and detection
Miranda v. Arizona
Limited to the TAPPING DOWN OF THE OUTER When you are undergoing custodial investigation, are you
CLOTHING OF PERSONS for weapons that might be already an accused? NO
used against him and other persons nearby
You are a SUSPECT, NOT AN ACCUSED.
Manalili v CA
Interest of crime prevention and detection allows a police Sec 14: those are the rights of the accused during trial
officer to approach a person … even though there is Sec 12: you are not yet an accused! Let me highlight on
insufficient probable cause to take an actual arrest that
In terry v ohio, are they committing an offense? Of course WHAT ARE YOUR MIRANDA RIGHTS/CUSTODIAL
none. Unless you tell me that merely looking at a store is INVESTIGATION RIGHTS?
an offense. 1. right to be informed
2. right to be informed that he has the right to remain silent
Yun nga. Effective crime prevention and detection allows 3. right to be informed of the right to have competent and
that. independent
4. right to be informed that if he cannot afford the services
Just remember in Terre Search, the police officer of counsel, he must be provided with one
does not have a probable cause to make an arrest. 5. right to be informed that rights may be waived provided
AGAIN, what justifies it is the interest of crime it is in writing and in the presence of counsel
prevention and detection and for investigating
possible criminal behavior But the first terminates the rest. It is incumbent upon the
police officers to apprise you of these rights before they
Warrantless searches at airports beign with the questioning
People v Lila Johnson December 18 2000
Citing American case of Katz v United States The kind of information contemplated by Section 12
It should be a MEANINGFUL information conveyed to the
You have no reasonable expectation of privacy there in suspect in a language or dialect known to and understood
view of increase concern over hijacking and terrorism by him
Otherwise, DO NOT TRAVEL BY AIR! Qualities of counsel

1. Must be independent
Facts 2. Must be competent
Lila Johnson was an American tourist – pabalik na siya sa
America- chinecheck in na niya luggage niya sa NAIA, The two must go hand-in-hand
dumaan siya dun sa metal detector, nag-alarm. Pagbeep
na ganun, sinearch siya ngayon. Kinapkapan siya. The prosecutor cannot assist him. He may be very
competent but he is not the independent counsel
Page 41 of 44
contemplated by section 12. He represents an interest

adverse to the accused An accused in a rape case, can he be forced to undergo
Role of counsel in sec 12: merely gives advice to the blood testing?
suspect YES!
Role of counsel In sec 14: counsel speaks on behalf of Women in adultery case, can she be compelled to
the accused undergo pregnancy test?
YES
Development in this area:
People v Obrero What is actually prohibited is the physical and moral
There are two types of involuntary or coerced compulsion to extort communication from the
confessions accused, Not the inclusion of his body in evidence
1. confession obtained through torture or third-degree where it be material
methods– contemplated by sec 12 par 2
accused in falsification case, can he be compelled to
2. confession without the benefit of Miranda warnings – produce specimen signature?
contemplated by Sec 12 par 1 NO.
Why is it important to know the distinction between In ong sio ong, the evidence is already there. He was not
the two? made to produce it. Object evidence yan e. Naroon nay
Lies in the application of presumption an eh! He was not compelled to produce it
If the extra j confession was obtained through torture or In falsification case- with every stroke of the pen, he is
third-degree methods: the presumption was that it was compelled to produce the very evidence that will hang
VOLUNTARILY GIVEN him. Writing is not a purely mechanical act. It requires the
use of intellect
BOP lies on the part of the accused.
This can be invoked in administrative proceedings
The police enjoys the presumption of regularity of that partake of a criminal nature
performance of duties
Pascual case
If extra-j was obtained without the benefit of Miranda - charged of medical malpractice – before Board of
warnings Medicine
- the presumption is that it was psychologically coerced - he invoked his right against self-incrimination
- BOP lies on the part of the police and the prosecution
This can also be invoked in inquiries in aid of legislation.
th
4 paragraph of Section 12: This can be also invoked in impeachment proceedings.
RA 7438 enacted pursuant to it- Special Penal Law-
malum prohibition Immunity Statutes
For examples, he agreed to testify against his co-accused
Sec 17: right against self-incrimination and enjoyed some kind of immunity? Can he still validly
Philosophical underpinning of this right: in one hand, you refuse to testify on the ground of self-incrimination?
have the State. On the other, the accused.
NO MORE!
In the beginning, the battle is unequal. He is pitted against That is the very purpose of the immunity statute. You
the offices of the State. The accused is alone. are given some kind of immunity in exchange of his
testimony
To make equal the unequal, more or less ganun.
You may be cited in contempt and the immunity may be
The state must come up with an evidence other than the revoked.
one extracted from his lips.
It is essentially a humanist law. What is the nature of the immunity statute? Is this a
bonanza of the government?
Application: only to testimonial compulsion
Mapa Jr. v Sandiganbayan
Not the inclusion of his body in evidence where it be THIS IS NOT A BONANZA FROM THE GOVERNMENT.
material Those given the privilege of immunity. They paid a high
price for it – the surrender of their precious right to be
Morphine forced out of the mouth of the accused: US v silent.
Ong sio ong?
Page 42 of 44
That is why they are to be liberally interpreted in favor of Procedural

the accused. 2 types: (1) Judicial (2) Administrative
The government is given the right to solve crimes but it Extraditional due process
must do it rightly. Secretary of Justice v. Honorable Ralph Lantion
It is a dangerous proposition.
What is extradition?
Di yan utang na loob sa gobyerno. May consideration yan. Regarded as a form of jurisdictional assistance.
Your life is on the line.
X killed Y in the Phillipines. X escaped to Thailand. Can
Thus, it should be liberally interpreted in favor of the we send agents of NBI to arrest X there in Thailand?
individual.
SEC 4
The right to privacy of communication and Freedom of speech
correspondence Freedom of expression
- limited concept of privacy Freedom of the press
Freedom of assembly
Is their really a constitutional right to privacy? YES
4 aspects of freedom from the press (PSIC)
Ople v. Torres 1. Freedom from prior restraint
After all, the essence of privacy is the right to be let alone 2. freedom from subsequent punishment
3. the freedom of access to information
Morfe v Motu 4. the freedom of circulation
We adopted the Griswald v Connecticut
Enshrined in several parts of the consi Freedom of prior restraint or censorship
1. Content-neutral: restriction is not directed against the
Sec 1,2,6,8, 17 speech itself, only as to the incidents of the speech, like
the manner, the time, and place of the speech
Secrecy of bank deposits
Privileged communication 2. Content-based: against the speech itself or the
Intellectual property law contents of the speech
Anti-wire tapping
etc CONTENT-BASED: CLEAR AND PRESENT DANGER
TEST!
Alejano v Cabuhay
Oakwood mutineers – kinulong sila kahit di pa convicted. We now live in the era of clear and present danger rule
Even their communications pinapakialamanan
Before kasi: dangerous tendency rule
Their right to privacy
- part of reasonable prison regulation Di porket the restriction is content-based, unconstitutional
yan!
But communication to lawyers must be opened in the
presence of the prisoners themselves, but they shall not Content-based restriction is censorial in character. It is a
read them – privileged communication! gag.
Not all content-based restrictions are prohibited.
For other communication, pwedeng buksan yan For a government to justify a content-based restriction,
that is wher you apply the clear and present danger rule
Part 29
Section 1 If content-neutral: for the government to justify, it is
1. DUE PROCESS CLAUSE enough to point out the substantive evil which the state
2. EQUAL PROTECTION CLAUSE sought to oppressed
- To apply the clear-and-present danger test to such
If what is involved is the act of the Govt that is regulatory measures would be like using a sledgehammer
confiscatory/unreasonable –invoke the right to due to drive a nail when a regular hammer is all that is needed.
process (ABS-CBN Broadcasting Corp. v. Commission on
Elections, G.R. No. 133486, [January 28, 2000], 380 PHIL
EPC: discriminatory act of the Government 780-804)
Substantive DP: law itself is FAIR, REASONABLE, JUST Rally may be held even without a permit
Is it fair? Is it reasonable? Is it just? 1. private property
2. school campus
Page 43 of 44
3. freedom park
Political rallies during the campaign period – Omnibus

Election code will govern
BP 880- CONTENT-NEUTRAL LANG YAN. Bayan v.

Erminta
Police should observe maximum tolerance

- highest degree of restraint
The Diocese of Bacolod v. Commission on Elections,

G.R. No. 205728, [January 21, 2015]
Size does matter
The form of expression is just as important as the

information conveyed that it forms part of the expression
Austria v NLRC
He is a pastor. Nagsimula ito sa chismis e. winaldas daw
ng asawa niya yung pera ng simbahan. He confronted the
“source” – his religious superior. Sinuntok niya
OLITICAL LAW; SEPARATION OF CHURCH AND

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

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

No. 124382, [August 16, 1999], 371 PHIL 340-362)
MTD – lack of jurisdiction on illegal dismissal case on the

ground of separation of the church and the state
Page 44 of 44

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Make your weakness your strength

Internal self-determination v external self-

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

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

PART 7 Who prosecutes?

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

Pork barrel: LUMP SUM DISCRETIONARY FUND

A delegation running riot!! Post-enactment activity in vital areas of budget execution.

contain objectionable features. The President is,

“other purposes he may deem fit” APRIL

Incompatible office v. Forbidden Office NO APPEAL

SCB- foreign bank allowed to do business in the PH Sec. 21 v Sec 22

How long shall you remain in prison? 3 varieties of executive privilege

The privilege must be asserted. It cannot be implied.

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

Faithful Execution Clause Marcos v. Manglapus

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

SEC 17 POWER OF CONTROL

Martial law and power to suspend Monsato v Factoran

RULING: Bayan v. Zamora

Jurisprudence educates that a preamble is not an VFA is involved

RULING: My opinion: it is deemed a waiver. Niratify mo ICC e. so it

In VFA: Sec 25 article xviii will govern because it is a Part 15

Basis of calling-out power: That is a political question Sec 14 Ombudsman Act -

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

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

Residence qualification: 1 year in PH the place where he

Sec 79-B of the Omnibus Election Code

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

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

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

Anong implication? Who shall assume mayorship now?

Disqualification cases before Election -the COC will not be cancelled

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

Who is a nuisance candidate? Loong case

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

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

68 ang tawag ko dito ay substitution proper. Sec 6

Cayat v COMELEC Disqualified under Sec 40 of LGC: those with dual

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

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

Of what? Labo v. COMELEC

Gordon – mayor of Olangapo

Accordingly, while the conferment of the appointing power Abila v. CSC

ARTICLE XVI Requisits to be considered as a de facto officer (OPC)

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

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

along thought that they were Filipinos; who have RA 6770

Part 21 If removal/dismissal, etc – one may appeal because the

Ang problema natin dyan Ombusdman ACT

Civil Service v. Dacoycoy Sandoval:

the law mandated by the Constitution frowns at a

Gloria v CA (1999) (1) By the President, if the respondent is an elective

What is the significance of knowing the distinction How long? 60 days

the Revised Penal Code on bribery is pending in court,

What Court is that?

Section 24. Preventive Suspension. - The Ombudsman or SG 27 or higher: Sandiganbayan

Question: How long? Aguinaldo v. Santos