Outline A - The Law Pertaining To The State and Its Relationship With Its Citizens

THE LAW PERTAINING TO THE STATE
AB AND ITS RELATIONSHIP WITH ITS NOTES
CITIZEN
areas of responsibility. The normal division of branches is
OUTLINE: into the Executive, the Legislative, and the Judicial.
q Constitutional Law
Our government structure rests on the principle of
q International Law separation of powers. Under our constitutional order, the
q Labor Law legislative branch enacts law, the executive branch
q Taxation Law implements the law, and the judiciary construes the law.
CHECKS AND BALANCES

The Constitution gives each department certain powers
Constitutional Law by which it may definitely restrain the others from
improvident action, thereby maintaining the balance
q Basic principles of political law (e.g., separation of among them and preserving the will of the sovereign
powers, sovereignty, judicial review, fundamental expressed in the Constitution. The President’s veto
powers of the State, i.e., police power, eminent power, the power of the Congress to override veto, the
domain and taxation) power of impeachment, and the court’s power to declare
q Bill of Rights (due process, equal protection, legislative and executive acts unconstitutional are
freedom of expression, rights during examples of checks and balances under the Constitution.
expropriation, searches and seizures)
q Composition and powers of the government Duka: The Constitution has provided for an elaborate
organs system of checks and balances to secure coordination in
q Judicial Review the workings of the various departments of the
q Supervision of courts governments.
q Powers of the Supreme Court
UP BOC
q Qualifications, disqualifications, and selection of
the president, senators, members of the House of Ordains that each of the 3 branches of government has
Representatives, justices and judges, the exclusive cognizance of and is supreme in matters failing
ombudsman, and constitutional commissioners within its constitutionally allocated sphere; each branch
q Immunity of the president, privileges of senators cannot invade the domain of others. Powers of the
and members of the House of Representatives government are separated to avoid concentration of
powers in any one branch.
q Structure of government (composition, functions,
powers and privileges, separation of powers, and
Separation of powers is a fundamental principle in our
system of checks and balances) system of government and is founded on the belief that,
q Process of legislation by establishing equilibrium among the three (3) power
q Natural resources (nationalization principle for holders, harmony will result and power will not be
natural resources and economic activities concentrated and tyranny will be avoided.
including advertising and media)
q Amendment and revision of the Constitution Any system that is violative of the principle of separation
(Article XVII) of powers is unconstitutional and void. (Belgica v. Ochoa)
The Philippine government is divided into three (3)

branches of government, namely:
1. Legislative;
BASIC PRINCIPLES OF POLITICAL LAW 2. Executive; and
SEPARATION OF POWERS 3. Judiciary
Rationale: It aims to prevent a concentration of authority
in one person or group of persons that might lead to an The principle of separation of powers ordains that each of
irreversible error or abuse in its exercise to the detriment the three government branches has exclusive cognizance
of our republican institutions. It is intended to secure of and is supreme in concerns failing within its own
action, forestall overaction, to prevent despotism and to constitutionally allocated sphere. It intends to secure
obtain efficiency. action, to forestall over-action, to prevent despotism, and
to promote efficiency.
Duka: The state is divided into branches, and each branch
of the state has separate and independent powers and
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The Law Pertaining to the State and Its Relationship with Its Citizens
While the separation of powers is not expressly provided The legislative power imposing policies through laws is
for in the Constitution, it obtains from actual division in subject to the substantive and constitutional limitations.
the Constitution. Each department It cannot limit the Court’s power to impose disciplinary
has exclusive cognizance of matters within its jurisdiction actions against erring justices, judges, and court
and is supreme within its own sphere. personnel. Neither should such policy be used to restrict
the Court’s power to preserve and maintain the
Political Question Doctrine Judiciary’s honor, dignity and integrity and public
confidence that can only be achieved by imposing strict
A question of which a resolution has been vested by the
Constitution exclusively in the people, or in which full and rigid standards of decency and propriety governing
the conduct of justices, judges and court employees.
discretionary authority has been delegated to a co-equal
branch of government (separation of powers) cannot be
decided upon by the Courts. SOVEREIGNTY
DEFINITION
This is as opposed to a justiciable question which deals It is the supreme power of the state to command and
with matters re: the law and its interpretation, not left to enforce obedience, the power to which all interests are
the wisdom of the people. practically subjected and all will subordinate. It is also
defined as freedom from outside control in the conduct
Application of internal and external affairs.
A. Belgica v Ochoca
The pork Barrel System violates the separation of The supreme and uncontrollable power inherent in a
powers because it is a form of post-enactment State by which that State is governed.
authority in the implementation or enforcement of
the budget. DUAL ASPECT:
• The system permits legislative 1. Internal sovereignty – supremacy of a person or
encroachment upon the executive body of persons in a state over the individuals or
prerogative of implementing the law, by association of individuals within the area of
giving individual legislators: (a) The jurisdiction.
power to determine projects after the 2. External sovereignty – the absolute
General Appropriations Act (GAA) is independence of one state as a whole with
passed; and (b) through congressional reference to other states (freedom from external
committees, authority in the areas of control)
fund release and realignment, the system
encroaches on the Executive’s power to
KINDS:
implement the law.
• Furthermore, identification of a project 1. Legal sovereignty – the possession of unlimited
by a legislator being a mandatory power or authority that by law involves the
requirement before his PDAF can be power to issue final commands.
tapped as a source of funds, his act 2. Political sovereignty – the sum total of all the
becomes indispensable in the entire influences in a state which lie behind the law. It is
budget execution process. also described as the power of the people.
B. Ocampo v. Enriquez CHARACTERISTICS:

In the exercise of his powers under the Constitution and 1. Permanence – sovereignty continues to exist
the Executive Order No. 292, to allow the internment of without interruption as long as the state itself
Marcos at the LNMB, which is a land of the public domain exists.
devoted for national military cemetery and military 2. Exclusiveness – there can be but one supreme
shrine purposes, President Duterte decided to question of power in the state legally entitled to the
policy based on his wisdom that it shall promote national obedience of the inhabitants.
healing and forgiveness. There being no taint of grave 3. Comprehensiveness – sovereign power extends
abuse of discretion, as discussed below, President over all persons, associations and things within
Duterte’s decision on that political question is outside the territorial limits.
ambit of judicial review. 4. Inalienability – the state cannot cede away any of
its essential elements without self-destruction.
C. Forietrans Manufacturing Corporation v. 5. Imprescriptibility – the powers of the state cannot
Davidoff Er Cia be lost as a consequence of its non-assertion or
The task of determining probable cause is lodged with the non-exercise through a period of time.
public prosecutor and ultimately, the Secretary of Justice. 6. Unity – the power cannot be divided without
Under the doctrine of separation of powers, courts have producing another state.
no right to decide matters over which full discretionary
authority has been delegated to the Executive Branch of DOMINIUM AND IMPERIUM
the Government.
Dominium – refers to the independent proprietary right
of possession, use, exploration, disposition or sale and
D. OCA v. Reyes
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control by the State over its territorial lands; refers to the This is not an assertion of superiority by the courts over
capacity to own and acquire property including lands the other departments, but merely an expression of the
held by the State in its proprietary capacity. supremacy of the Constitution.
Imperium – includes the state’s right to enact its own laws The duty remains to assure that the supremacy of the
and employ the same to secure obedience thereto, Constitution is upheld.
maintain peace and order, defend the state against
foreign invasion and any other act of government over its The power is inherent in the Judicial Department, by
own territory; is the authority possessed by the state virtue of the doctrine of separation of powers.
embraced in the concept of sovereignty.
FUNDAMENTAL POWERS OF THE STATE
EFFECT OF CHANGE IN SOVEREIGNTY
Upon the transfer of territory, either by conquest or State’s inherent Purpose Means
otherwise, the political laws of the conquered territory powers
immediately cease to have effect, except in so far as they Police Power To promote Limits a
are continued in force by express consent of the new general welfare person’s
sovereign. Municipal laws of the transferred territory, right
however not in conflict with the laws of the new Eminent To make the Takes a
sovereign continue in force without the express consent Domain property available private
of the new sovereign. for public use property
Taxation To raise funds for Collect
EFFECTS OF MILITARY OCCUPATION the government contribution
Sovereignty always resides in and remains with the State from the
as a juristic person, while its exercise is delegated, as a people
rule, to the government or its organs, electorate or to
certain officials. Similarities:
1. All inherent powers of the state
Sovereignty itself is not transferred or suspended, what 2. When exercised, a person’s right is affected;
was merely suspended was the exercise of the rights of society is benefitted and a person affected get
the sovereign. something in return
3. Legislative in nature – there must be a law
Law of non-political nature remained in force unless authorizing the exercise of these powers;
repealed by the belligerent occupant. Laws of political Congress may delegate the power to other
nature are suspended, except the law on treason, subject governmental agencies (rule-making power or
to the revival after the occupation under the doctrine of subordinate legislation)
jus posliminium.
TERRITORIAL, PERSONAL, AND

EXTRATERRITORIAL JURISDICTION
Territorial jurisdiction – authority of the state to have all
persons and things within the territorial limits to be
completely subject to its control and protection.
Personal jurisdiction – authority of the state over its

nationals, their persons, property and acts, whether
within or outside its territory.
Extraterritorial jurisdiction – authority of the state over

persons, things and acts, outside its territorial limits by
reason of their effects to its territory.
ACTS OF STATE
It is an act done by or under the authority of the sovereign
power.
e.g. deportation A. POLICE POWER
JUDICIAL REVIEW - the power of promoting the public welfare by
The power of the courts to test the validity of executive restraining and regulating the use of liberty and property
and legislative acts in light of their conformity with the - the most pervasive, the least limitable, and the most
Constitution. demanding of the three powers
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Basis:
- salus populi est suprema lex (the welfare of the people is (c) Is there a relation between the purpose and the means
the supreme law) employed?
- sic utere tuo ut alienum non laedas (so as to use your
property as not to injure the property of others) (d) Is the relation reasonable?
Police power is lodged primarily in the national Relation between the purpose and the means employed
legislature. By virtue of a valid delegation of legislative may be established by:
power, it may also be exercised by the President and - Empirical evidence
administrative boards as well as the lawmaking bodies on - Statistics, medical and scientific studies
all municipal levels, including the barangay.
(2) Clear and Present Danger Test
Local Government Code Section 16: Is there a clear and present danger of substantive evil that
General Welfare. - Every local government unit shall the state must prevent/prohibit?
exercise the powers expressly granted, those necessarily Clear: degree of danger; must be real
implied therefrom, as well as powers necessary, Present: proximity, imminent
appropriate, or incidental for its efficient and effective
governance, and those which are essential to the (3) Dangerous Tendency Test – used during the Marcos
promotion of the general welfare. Within their respective era; not applicable anymore
territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation When the two conflicting rights are between private persons:
and enrichment of culture, promote health and safety,
enhance the right of the people to a balanced ecology, Balancing of Interests Test
encourage and support the development of appropriate - which right is more important?
and self-reliant scientific and technological capabilities, -life and liberty rights over property rights
improve public morals, enhance economic prosperity and
social justice, promote full employment among their B. EMINENT DOMAIN
residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
Section 9. Private property shall not be taken for public
Requisites: use without just compensation.
1. Lawful subject – the interests of the public The power of eminent domain is a power inherent in
generally, as distinguished from those of a sovereignty, it is a power which need not be granted by
particular class, require the exercise of the police any fundamental law.
power, otherwise, it may violate the equal
protection of the laws. The provisions in the Constitution to effect that private
2. Lawful means – the means employed are property shall not be taken for public use without
reasonable necessary for the accomplishment of compensation have their origin in the recognition of a
the purpose and not unduly oppressive upon necessity for restraining the sovereign and protecting the
individuals. individual.
Tests to determine valid exercise of police power: In the hands of the legislature, the power of eminent
(1) Reasonable Connection Test domain is an inherent power. In the hands of government
agencies, local governments and public utilities, however,
A reasonable relation must exist between the purposes of eminent domain is only a delegated power. This
the measure and the means employed for its distinction has important legal consequences both with
accomplishment. respect to the scope of the power and with respect to the
scope of judicial review of the exercise of the power.
Applicable to life, liberty and property rights
Requisites:
(a) Check the purpose: it must be for general welfare: 1. Taking of private property
1. Public morals; 2. Public use/purpose
2. Public safety; 3. Payment of just compensation
3. Public health; 4. Observance of due process of law
4. Public order;
5. Public comfort and convenience; The following exercise the power of expropriation:
6. Social Justice;
7. Public policy 1. Congress
2. President of the Philippines
(b) Check the means employed: limit a person’s rights 3. Various local legislative bodies
Regulate Prohibit 4. Certain public corporations
Lawful Acts 5. Quasi-public corporations
✔ ✘
Unlawful Acts ✘ ✔
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Where expropriation suit is filed: An expropriation suit is police surveillance, taking into account not only the
incapable of pecuniary estimation. Accordingly, it falls expense of direct regulation but also incidental expenses.
within the jurisdiction of RTC, regardless of the value of
the subject property. May a local government unit levy real property tax on
submarine or undersea communications cables?
C. TAXATION Yes. Submarine wires or cables used for communications
It is the power by which the States raises revenue to may be taxed like other real estate.
Submarine or undersea communications cables are akin
defray the necessary expenses of the Government. It is the
enforced proportional contributions from persons and to electric transmission lines. To the extent that the
equipment's location is determinable to be within the
property, levied by the State by virtue of its sovereignty,
for the support of the government and for all public taxing authority's jurisdiction, the Court sees no reason
needs. to distinguish between submarine cables used for
communications and aerial or underground wires or
Requisites: lines used for electric transmission, so that both pieces of
1. Uniform and Equitable property do not merit a different treatment in the aspect
2. Progressive system of taxation of real property taxation. (Capitol Wireless, Inc. vs. The
3. Delegated tax legislation Provincial Treasurer of Batangas, G.R. No. 180110. May 30,
2016)
Tax is the lifeblood of the government.
Article VI, Section 28. (1) The rule of taxation shall be uniform
and equitable. The congress shall evolve a progressive system of BILL OF RIGHTS
taxation. DUE PROCESS
(2) The Congress may, by law, authorize the President to fix - The constitution did not define due process because if it
within specified limits, and subject to such limitations and did, it will be stuck to that definition. What the law does
restrictions as it may impose, tariff rates, import and export not include, it excludes. It left to the Courts the discretion
quotas, tonnage and wharfage dues, and other duties or imposts on how to apply it so it can fit the changing times.
within the framework of the national development program of
the Government. - No attempt was made to spell out the meaning of due
(3) Charitable institutions, churches and parsonages or process or to define the concept with some degree of
convents appurtenant thereto, mosques, non-profit cemeteries, exactitude. Due process continues to be dynamic and
and all lands, buildings, and improvements actually, directly resilient, adaptable to every situation calling for its
and exclusively used for religious, charitable, or educational application. The very elasticity of the provision makes
purposes shall be exempt from taxation. this possible and thus enlarges the rights of the individual
(4) No law granting any tax exemption shall be passed without to his life, liberty or property.
the concurrence of a majority of all the members of the Congress.
– General understanding: a law which hears before it
The obvious primary and specific purpose of the power condemns; which proceeds upon enquiry, and renders
to tax is to raise revenue. judgment only after trial
Justice Marshall: the power to tax is the power to destroy Two Aspects:
Requisites Exercised by:
The power of taxation should only be exercised for a Substantive (1) Law = Legislative and
public purpose. reasonable quasi
(2) Publication legislative
Specific limits on the taxing power: uniform and equitable
Progressive system of taxation – a tax is progressive when Procedural Notice and Judicial and
the rate increases as the tax base increases (taxing power Hearing Quasi-judicial
may be made to fall more heavily upon some than upon
others) Quasi-legislative v Quasi-judicial function:
Reason: social justice – more equitable distribution of
If the rules and regulations are directed to a particular
wealth person, the function becomes quasi-judicial.
Tax exemption is only for taxes assessed as property taxes
as contra-distinguished from excise taxes. A. PROCEDURAL DUE PROCESS
Double Taxation: when additional taxes are laid on the Requisites of procedural due process:
same subject by the same taxing jurisdiction during the 1. There must be a court or tribunal clothed with judicial
same taxing period for the same purpose. power to hear and determine the matter before it
The power to regulate as an exercise of police power does 2. Jurisdiction must be lawfully acquired over the person
not include the power to impose fees for revenue of the defendant or over the property which is the subject
purposes. Fees for purely regulatory purposes may only of the proceedings
be of sufficient amount to include the expenses of issuing 3. The defendant must be given an opportunity to be
the license and the cost of the necessary inspection or heard
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4. Judgment must be rendered upon lawful hearing 5. The evidence must be duly considered by the
investigating committee of official designated by the
Once the court acquires jurisdiction, jurisdiction is never school authorities to hear and decide the case
lost until the finality of the case.
B. SUBSTANTIVE DUE PROCESS
The essence of procedural due process is opportunity to
– deals with the intrinsic validity of the law (that the law must
be heard, it does not always require a trial-type hearing. be reasonable)
1. Publication Requirement
Doctrine of prejudicial publicity – allegation and proof - Legislative and quasi-legislative bodies
that the judge was actually influenced by the barrage of
publicity. Test of substantive due process:
Totality of circumstances doctrine 1. Void-for-vagueness
- a law may be said to be vague when it lacks
comprehensible standards that men of common
Administrative due process (CFI vs. Ang Tibay): intelligence must necessarily guess at its meaning and
1. The right to a hearing, which includes the right to differ as to its application
present one’s case and submit evidence in support thereof Repugnant to the Constitution in two respects:
2. The tribunal must consider the evidence presented a. it violates due process for failure to accord persons,
3. The decision must have something to support itself especially the parties targeted by it, fair notice of the
4. The evidence must be substantial conduct to avoid
5. The decision must be based on the evidence presented b. it leaves law enforcers unbridled discretion in carrying
at the hearing, or at least contained in the record and out its provisions and become an arbitrary flexing of the
disclosed to the parties affected Government muscles
6. The tribunal or body or any of its judges must act on its
own independent consideration of the law and facts of the 2. Overbreadth doctrine - a proper governmental
controversy, and not simply accept the views of a purpose, constitutionally subject to state regulation, may
subordinate not be achieved by means that unnecessarily sweep its
7. The board or body should, in all controversial subject broadly, thereby invading the area of protected
questions, render its decision in such a manner that the speech. [prohibits unprotected speech but it also
parties to the proceeding can know the various issues affects/invades protected speech]
involved, and the reason for the decision rendered.
EQUAL PROTECTION
The heart of procedural due process is the need for notice
and an opportunity to be heard. CONCEPTS:
Equality and Freedom
There is violation of due process when the officer who (1) Personal/Individual Equality = Freedom/Liberty
reviews a case is the same person whose decision is on (equality and freedom are synonymous in this respect)
appeal. All are free, but some are freer that others.
While notice and hearing are required in judicial and (2) Equality of opportunities – Equality is a necessary
quasi-judicial proceedings, they are not prerequisites in means to liberty (To be free, you need to have access to
the promulgation of general rules. equal opportunities)
Due process in school: Right of students to education vs. (3) Equality of outcome (collective equality) – equality
the right of schools to academic freedom here is antagonistic to freedom because to achieve similar
outcome, the government would have to regulate
The contractual obligation of school to afford its students individual’s/person’s rights.
a fair opportunity to complete the course a student has
enrolled for is recognizes. However, when a student Equal Protection means Legal Equality:
commits serious breach of discipline or fails to maintain
the required academic standards of the school, the - All persons similarly situated must be treated alike
student forfeits his rights and courts are not at liberty to both as to the rights conferred and the liabilities
reverse the discretion of university authorities in this involved.
matter. - Classification must be reasonable; classification has
been defined as the grouping of persons or things
Requisites: similar to each other in certain particulars and
1. The students must be informed in writing of the nature different from all others in these same particulars.
and cause of accusation against them
2. They shall have the right to answer the charges against Requisites of Reasonable Classification:
them, with the assistance of counsel, if desired 1. The classification must be based on substantial
3. They shall be informed of the evidence against them distinction
4. They shall have the right to adduce evidence in their 2. It must be germane to the purposes of the law
own behalf 3. It must not be limited to existing conditions only
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4. It must apply equally to all members of the same class interest in his doings, his affairs, and his character, has
become a public personage. He is, in other words, a
KINDS OF TESTS IN DETERMINING THE celebrity.
REASONABLENESS OF CLASSIFICATION:
Such public figures were held to have lost, to some extent
1. Strict scrutiny test requires government to show that the
at least, their right of privacy.
challenged classification serves compelling state interest
and that the classification is necessary to serve that
Fear of Subsequent Punishment – unduly curtailing
interest.
- presumed unconstitutional, and the burden is upon the speech and expression through a system of providing
penalties after the speech/express is published.
government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least If prior restraint were all that the constitutional guarantee
restrictive means to protect such interest. prohibited and government could impose subsequent
punishment without restraint, freedom of expression
Applicable to: legislative classification which impermissibly
interferes with the exercise of a fundamental right (religion, would be a mockery and a delusion.
speech, privacy) or operates to the peculiar disadvantage of a
suspect class Test for determining the validity of curtailment of
speech:
2. Intermediate or middle-tier scrutiny test which requires 1. Dangerous tendency rule – for speech to be punishable,
government to show that the challenged classification there must be a rational connection between the speech
serves an important state interest and that the and the evil apprehended.
classification is at least substantially related to serving 2. Clear and present danger test – the question in every
that interest. case is whether the words used are used in such
Applicable to: life and liberty rights circumstances and are of such a nature as to create a clear
and present danger that they will bring about substantive
3. Rational basis scrutiny – the government need only show evils that Congress has a right to prevent
that the challenged classification is rationally related to 3. Balancing of interest test
serving a legitimate state interest.
Applicable to: property rights Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the absences of officialdom.
FREEDOM OF EXPRESSION
A public officer must not be too thin skinned with
Section 4. No law shall be passed abridging the freedom of reference to comment upon his official acts.
speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress Regulation:
of grievances. 1. content-neutral – based on the time, place or manner of
dissemination; what is being regulated is not really the
Prior restraint – official governmental restrictions on the speech
press or other forms of expression in advance of actual Test: Intermediate Scrutiny Test
publication or dissemination. Its most blatant form is a 2. content-based – based on the substance being
system of licensing administered by an executive officer. communicated
Test: Strict Scrutiny Test
The freedom of broadcast media is lesser in scope than the
press because of their pervasive presence in the lives of Core Speeches:
the people and because of their accessibility to children. Social, Political and Religious Speech [test: strict scrutiny]
vs.
Motion picture censorship: Commercial speech – communication whose sole
1. the burden of proving that the film is unprotected purpose is to propose a commercial transaction.
expression must rest on the censor
2. censor’s determination is not final; it must be subjected Commercial speech has not been accorded the same level
to judicial determination of protection as that given to what is called “core speech”
such as political speech.
FREEDOM OF EXPRESSION V RIGHT TO PRIVACY: [test: intermediate scrutiny test]
The right of privacy cannot be invoked to resist
publication and dissemination of matters of public Requirements for the protection of commercial speech:
interest. The interest sought to be protected by the right 1. The speech must not be false or misleading or
to privacy is the right to be free from “unwarranted proposing an illegal activity
publicity, from the wrongful publicizing of the private 2. The governmental interest sought to be served by the
affairs and activities of an individual which are outside regulation must be substantial
the realm of legitimate public concern. 3. The regulation must directly advance the government
interest
A public figure has been defined as a person who, by his 4. The regulation must not be overbroad (more excessive
accomplishments, fame or mode of living, or by adopting than is necessary to protect state interest)
a profession or calling which gives the public a legitimate
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Unprotected speech: (a) the dominant theme of the material taken as a whole
(1) Libel and other defamatory speeches appeals to a prurient interest in sex
Art. 353 (RPC). A libel is public and malicious imputation (b) the material is patently offensive because it affronts
of a crime, or a vice or defect, real or imaginary, or any contemporary community standards relating to the
act, omission, condition, status, or circumstance tending description or representation of sexual matters and
to cause the dishonor, discredit or contempt of a natural (c) the material is utterly without redeeming social value
or juridical person, or to blacken the memory of one who
is dead. Miller v California:
a. whether the average person , applying contemporary
Publicity means making the defamatory matter, after it community standards would find that the work, taken as
has been written, known to someone other than the whole, appeals to the prurient interest
person to whom it has been written. b. whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
Art. 354. Every defamatory imputation is presumed to be applicable state law
malicious, even if it be true, if no good intention and c. whether the work, taken as a whole, lacks serious
justifiable motive for making it is shown, except in the literary, artistic, political or scientific value
following cases:
O’Brien Test (a regulation is justified):
1. A private communication made by any person to 1. If it is within the constitutional power of the
another in the performance of any legal, moral or social Government;
duty; and 2. If it furthers an important or substantial governmental
interest;
2. A fair and true report, made in good faith, without any 3. If the governmental interest is unrelated to the
comments or remarks, of any judicial, legislative or other suppression of free expression;
official proceedings which are not of confidential nature, 4. If the incidental restriction is no greater than is essential
or of any statement, report or speech delivered in said to the furtherance of that interest.
proceedings, or of any other act performed by public
officers in the exercise of their functions. Assembly and Petition
The right of assembly and petition is equally fundamental
It is immaterial if the statement is true or not. as freedom of expression, the standards for allowable
impairment of speech and press are also those for
(2) Alarming and Scandalous Statements assembly and petition.
(3) Inciting to Rebellion or Sedition The granting of permit was subject only to the Mayor’s
reasonable discretion to determine or specify the streets
(4) Obscenity/Pornography or public places to be used for the purpose, with a view to
Tests: prevent confusion by overlapping, to secure convenient
a. Average person test; use of the streets and public places by others, and to
b. Community standard test; provide adequate and proper policing to minimize the
c. National character test; risk of disorder.
d. Aggregate community standard test;
e. Contemporary standard test;
f. Isolated passage test (Hicklin Test); Rules on assembly and petition:
g. Dominant Theme Test 1. the applicant for a permit to hold an assembly should
inform the licensing authority of the date, the public place
where and the time when it will take place. (If it a private
Hicklin rule place, only the consent of the owner or the one entitled to
- whether the tendency of the matter charged as obscene its legal possession is required).
is to deprave and corrupt those whose minds are open to 2. Such application should be filed well ahead in time to
such immoral influences, and into whose hands a enable the public official concerned to appraise whether
publication of this sort may fall (susceptible person test) there may be valid objection to the grant of the permit or
- isolated passages test: book could be rejected on the to its grant but to another public place. It is an
basis of isolated obscene passages without regard to the indispensable condition to such refusal or modification
total effect of the entire work that the clear and present danger test be the standard for
the decision reached.
Roth case
- Dominant theme test Government can also be over anxious in times of frequent
whether to the average person applying the anti-government rallies. Thus was born what was called
contemporary community standards, the dominant by the government as calibrated preemptive response to
theme of the material taken as a whole appeals to the demonstration and rallies. But the court in Bayan v
prurient interest Ermita said that calibrated preemptive response had no
place in the constitutional firmament and that the proper
Memoirs v Massachusetts: three elements must coalesce – response was maximum tolerance prescribed in Batas
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Pambansa 880. BP 880 also orders political units to set up

freedom parks. Requisites of taking (Republic vs. Vda. De Castellvi):
1. the expropriator must enter a private property
In case of denial of permit, it is incumbent upon the 2. the entry must be for more than a momentary period
Mayor to state the reasons for the denial (must be based 3. the entry must be under warrant or color of legal
on clear and present danger). authority
4. the property must be devoted for public use or
In case of freedom parks, there is no need for a permit. If otherwise informally appropriated or injuriously affected
there is no designated freedom parks, all open and public 5. the utilization of the property for public use must be in
spaces are deemed freedom parks. such a way to oust the owner and deprive him of
beneficial enjoyment of the property
There is also no need for a permit if the rally will be held
in a privately-owned property, only the consent of the
owner must be obtained. (2) The property to be taken must be a private property
RIGHTS DURING EXPROPRIATION Local government has two characters:

Section 9. Private property shall not be taken for public use Public Function (agent of the state);
without just compensation. Private function (agent of its inhabitants)
Requisites for Valid Expropriation Civil Code enumerates what are public properties of local
1. Private Property government units. Anything not enumerated are
2. Genuine Necessity patrimonial properties.
3. For Public use
4. Payment of Just Compensation Patrimonial property – property of the community
5. Due Process
Art. 424 (Civil Code): Property for public use, in the
Requisites of Eminent Domain: provinces, cities and municipalities, consist of the
provincial roads, city streets, municipal streets, the
(1) Taking (expropriating) squares fountains, public waters, promenades, and public
Two types of taking: works for public service for by said provinces, cities or
a. Possessory taking municipalities.
b. Regulatory taking
All other property possessed by any of them is
There are two different types of taking that can be identified. A patrimonial and shall be governed by this Code, without
"possessory" taking occurs when the government confiscates or prejudice to the provisions of special laws.
physically occupies property. A "regulatory" taking occurs
when the government's regulation leaves no reasonable Can the government expropriate a local government
economically viable use of the property. private property? Yes.
xxxx
No formula or rule can be devised to answer the questions of Expropriation of municipal property:
what is too far and when regulation becomes a taking. In If the property is owned by the municipality (municipal
Mahon, Justice Holmes recognized that it was "a question of corporation) in its public and governmental capacity, the
degree and therefore cannot be disposed of by general property is public and Congress has absolute control over
propositions." On many other occasions as well, the U.S. it. But if the property is owned in its private or
Supreme Court has said that the issue of when regulation proprietary capacity then it is patrimonial and Congress
constitutes a taking is a matter of considering the facts in each has no absolute control. The municipality cannot be
case. x x x. deprived of it without due process and payment of just
What is crucial in judicial consideration of regulatory takings compensation.
is that government regulation is a taking if it leaves no
reasonable economically viable use of property in a manner that (3) Use must be for public use
interferes with reasonable expectations for use. A regulation - as long as it is beneficial to the State
that permanently denies all economically beneficial or
productive use of land is, from the owner's point of view, Sena v Manila Railroad Co.: whatever is beneficially
equivalent to a "taking" unless principles of nuisance or employed for the community is a public use.
property law that existed when the owner acquired the land
make the use prohibitable. When the owner of real property has Public use = public welfare, public necessity
been called upon to sacrifice all economically beneficial uses in
the name of the common good, that is, to leave his property (4) Payment of just compensation
economically idle, he has suffered a taking. Just compensation is the just and complete equivalent of
xxxx the loss which the owner of the thing expropriated has to
A restriction on use of property may also constitute a "taking" suffer by reason of the expropriation.
if not reasonably necessary to the effectuation of a substantial
public purpose or if it has an unduly harsh impact on the
distinct investment-backed expectations of the owner.
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Fair Market Value + [Consequential Damages – b. if the value increased independently of what the
Consequential Benefits] expropriator did, then the value is that of the later filing
Market value – price fixed by the buyer and seller in the of the case
open market in the usual and ordinary course of legal
In Socialized Housing and CARP, it is at the time of
trade and competition; the price and value of the article
taking.
established or shown by sale, public or private, in the
ordinary way of business; the fair value of property as
When there is a delay of payment, the landowner is
between one who desires to purchase and one who
desires to sell; the current price, the general or ordinary entitled to interest. (6% annual interest or the legal rate as
of July 1, 2013)
price for which property may be sold in that locality.
It must include consequential damages (consequential If more than 5 years of non-payment: the remedy is
recovery of property + damages.
benefits must be deducted from this). In case the
consequential benefits exceed the consequential damages,
these items should be disregarded altogether as the basic If the government project is abandoned, the landowner
value of the property should be paid in every case. may recover the property but he must return the just
compensation (without interest).
Form of just compensation: Cash
XPN: CARP If the claim is merely for damages to property (there is
really no eminent domain here), the action is subject to
Association of Small Landowners vs. Secretary of prescription.
Agrarian Reform:
If the claim is for just compensation because there was
It cannot be denied from these cases that the traditional medium
taking, it is not subject to prescription.
for the payment of just compensation is money and no other.
And so, conformably, has just compensation been paid in the
Inverse Condemnation
past solely in that medium. However, we do not deal here with
the traditional excercise of the power of eminent domain. This It is an action to recover just compensation from the State
is not an ordinary expropriation where only a specific property or its expropriating agency. It has the objective to recover
the value of property taken in fact by the government,
of relatively limited area is sought to be taken by the State from
even though no formal exercise of the power of eminent
its owner for a specific and perhaps local purpose.
domain has been attempted by the taking agency.
What we deal with here is a revolutionary kind of expropriation.
Inverse condemnation is an action to recover, while on the
The expropriation before us affects all private agricultural lands other hand, payment for damages is predicated on
statutory enactments and emanates from a transgression
whenever found and of whatever kind as long as they are in
of a right. (National Power Corporation vs. Heirs of
excess of the maximum retention limits allowed their owners.
This kind of expropriation is intended for the benefit not only of Macabangkit Sangkay, G.R. No. 165828, August 24, 2011)
a particular community or of a small segment of the population
but of the entire Filipino nation, from all levels of our society, Just compensation is due not to the owner alone but to all
from the impoverished farmer to the land-glutted owner. Its those who have lawful interest in the property to be
condemned.
purpose does not cover only the whole territory of this country
but goes beyond in time to the foreseeable future, which it hopes
to secure and edify with the vision and the sacrifice of the For purposes of entry into the property prior to full
present generation of Filipinos. Generations yet to come are as payment, Section 10 of RA 7160 requires a deposit with
the proper court of at least fifteen percent (15%) of the
involved in this program as we are today, although hopefully
only as beneficiaries of a richer and more fulfilling life we will FMV of the property based on the current tax declaration
of the property to be expropriated.
guarantee to them tomorrow through our thoughtfulness today.
And, finally, let it not be forgotten that it is no less than the XPN: in expropriation for infrastructure projects, the
Constitution itself that has ordained this revolution in the government must make a direct payment of the proffered
farms, calling for "a just distribution" among the farmers of value of the property.
lands that have heretofore been the prison of their dreams but
can now become the key at least to their deliverance. Can just compensation be fixed by legislation? PD 42
fixed the just compensation at either the value declared
by the owner for tax purposes or the assessed value,
DETERMINATION OF JUST COMPENSATION whichever is lower.
What is the point of reference for assessing the value of a piece EPZA v Dulay: the method of ascertaining just
of property? The value must be that as the time of the filing compensation under the aforecited decrees constitutes
of the complaint for expropriation. impermissible encroachment on judicial prerogatives.
XPN: when the filing of the case comes later than the time The court has only to choose between the valuation of the
of taking owner and that of the assessor, and its choice is always
a. when the value of the property has increased because limited to the lower of the two. The court cannot exercise
of the use to which the expropriator has put it, the value discretion or independence in determining what is just or
is that of the time of the earlier taking fair.
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Just compensation embraces not only the correct In case of indirect taking, there is no just compensation.
determination of the amount to be paid to the owners of This is, in fact, an exercise of police power, not eminent
the land, but also payment within a reasonable time from domain.
its taking.
The following aspects of the exercise of the power have SEARCHES AND SEIZURES
been subjected to judicial scrutiny: Section 2. The right of the people to be secure in their persons,
1. the adequacy of compensation
houses, papers and effects against unreasonable searches and
2. the necessity of taking seizures, of whatever nature and for any purpose shall be
3. the public use character of the purpose of the taking
inviolable. And no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by
Procedure in expropriation cases: judicial appointment of the judge after examination under oath or affirmation of the
three commissioners to view the premises and assess the
complainant and the witnesses he may produce, and
damages to be paid for the condemnation particularly describing the place to be searched and the persons
or things to be seized.
Does res judicata apply in expropriation proceedings? No.
Once the right to expropriate has been denied the state in Purpose: To protect a person’s right to privacy; the right
a specific case, it does not mean that the state may not
to be left alone
come back to the same property. The very nature of
eminent domain dictates the right to exercise the power
Zones of privacy are recognized and protected in our
be absolute and unfettered by a prior judgment or res laws. Within these zones, any form of intrusion is
judicata. impermissible unless excused by law and in accordance
with customary legal process. The meticulous regard we
Expropriation by municipal government:
accord to these zones arises not only from our conviction
Additional Requirement: Genuine Necessity of Taking that the right to privacy is a "constitutional right" and
"the right most valued by civilized men," but also from our
The determination of whether there is genuine necessity adherence to the Universal Declaration of Human Rights
for the exercise of eminent domain is a justiciable which mandates that, "no one shall be subjected to arbitrary
question. However, when the power is exercised by the
interference with his privacy" and "everyone has the right to
Legislature, the question of necessity is essentially a
the protection of the law against such interference or attacks."
political question.
Our Bill of Rights, enshrined in Article III of the
Expropriation Procedure for Local Government Units: Constitution, provides at least two guarantees that
1. An ordinance is enacted by the local legislative council explicitly create zones of privacy. It highlights a person's
authorizing the local chief executive, in behalf of the LGU,
"right to be let alone" or the "right to determine what, how
to make a definite and specific writing to the owner to buy
much, to whom and when information about himself shall be
the property stating the: disclosed." Section 2 guarantees "the right of the people to
(a) purpose of expropriation; and
be secure in their persons, houses, papers and effects
(b) the offer (how much) against unreasonable searches and seizures of whatever
nature and for any purpose." Section 3 renders
2. Attach the copy of the Ordinance and Certification
inviolable the "privacy of communication and
from the City Treasurer that there are enough funds to
correspondence" and further cautions that "any evidence
buy the property; and another Certification that those obtained in violation of this or the preceding section
funds will not be used for any purpose other than to buy shall be inadmissible for any purpose in any
the property
proceeding."
3. If the owner is willing to sell, then a contract of sale will
It operates against "unreasonable" searches and seizures
be executed. only.
4. In case the owner is willing to sell but they cannot agree Two Categories of Privacy:
on the price, a committee will be created to hold a
preliminary conference to determine the price 1. Decisional Privacy – involves the right to independence
in making certain important decisions
5. If the owner is not willing to sell OR the price cannot be 2. Informational Privacy – refers to the interest of
agreed upon, expropriation should follow. avoiding disclosure of personal matters.
Two Aspects of Informational Privacy:
6. Another Ordinance authorizing expropriation then the a., Right not to have private information disclosed;
Chief Executive will file a Complaint for Expropriation. b. Right to live freely without surveillance and intrusion
Equal protection does not apply to eminent domain. Entitlement to Right, two-fold test:
1. Subjective Test: one claiming the right must have an
Expropriation is always the last resort. actual or legitimate expectation of privacy over a certain
matter.
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2. Objective Test: His/Her expectation of privacy must be

one society is prepared to accept as objectively For warrant of arrest – personal description
reasonable. John Doe warrant of arrest is generally void except in
those cases where it contains a description personae such
What are unreasonable searches and seizures? As a as will enable the officer to identify the accused.
general rule, searches and seizures without a validly
issued search warrant or warrant of arrest Remedy:
1. Motion to quash warrant in case of questionable
Requisites of a valid warrant: warrant;
1. Existence of probable cause 2. Motion for investigation if there’s no warrant
Probable case for a search would mean such facts and (warrantless search)
circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been WARRANTLESS ARREST:
committed and that the objects sought in connection with
the offense are in the place sought to be searched. Sec. 5 Rule 113, Rules of Court:
Arrest without warrant; when lawful. A peace officer or private
Stonehill v Diokno: existence of probable cause person may, without a warrant, arrest a person:
presupposes the introduction of competent proof that the
party against whom it is sought has performed particular a. When in his presence, the person to be arrested has
acts, or committed specific omissions violating a given committed, is actually committing, or attempting to commit an
provision of our criminal law. offense (in flagrante delicto) – applicable to continuing crime
e.g. rebellion
2. Personal determination by the judge
b. When an offense has in fact been committed, and he has
3. Personal examination of the witnesses personal knowledge of facts indicating that the person to be
a. The judge shall personal evaluate the report and arrested has committed it; and
supporting documents submitted by the prosecutor
regarding the existence of probable cause, and on the c. when the person to be arrested is a prisoner who has escaped
basis thereof, he may already make a personal from a penal establishment or place where he is serving final
determination of the existence of probable cause judgment or temporarily confined while his case is pending, or
b. If he is not satisfied that probable cause exists, he may has escaped while being transferred from one confinement to
disregard the prosecutor’s report and require the another
submission of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the existence of Arrest is the taking of a person into custody in order that
probable cause he may be forthcoming to answer for the commission of
an offense.
4. Particularity of description
Purpose: to limit the things to be seized to those, and only Any objection involving a warrant of arrest or procedure
those, particularly described in the search warrant – to in acquisition by the court of jurisdiction over the person
leave the officers of the law with no discretion regarding of the accused must be made before he enters his plea,
what articles they shall seize, to the end that unreasonable otherwise the objection is deemed waived. The accused
searches and seizures may not be made, - that abuses may must move for the quashing of the information against
not be committed; the elimination of general warrants him before arraignment. Otherwise, he is estopped from
questioning the validity of the arrest.
THINGS TO BE SEIZED: Application for bail or the admission to bail by an accused
1. Things used to commit the offense; is not considered a waiver of his right to assail a warrant
2. Things that may be used in evidence; issued for his arrest or the legalities or irregularities
3. Things that are illegal per se. thereof.
The search must be conducted in the presence of the Warrantless searches and seizures; when valid
lawful occupant or immediate relatives or in the presence Why allowed?
of two witnesses. a. Reasonable – no legitimate expectation of privacy;
b. Practical – there’s urgency
The sufficiency of the description of the object of the
search is closely related with the sufficient particularity of A reasonable search, on the one hand, and a warrantless search,
the averments of the offense. The possibility of properly on the other, are mutually exclusive. While both State
identifying the object of the search may depend on the intrusions are valid even without a warrant, the underlying
proper identification of the offense committed. reasons for the absence of a warrant are different. A reasonable
search arises from a reduced expectation of privacy, for which
G.R.: One warrant for one offense. reason Section 2, Article III of the Constitution finds no
XPN: Different offenses belonging to the same application. Examples include searches done at airports,
specie/genus punished under one special law seaports, bus terminals, malls, and similar public ·places. In
Example: offenses under the Dangerous Drugs Act contrast, a warrantless search is presumably an "unreasonable
AB Page 12 of 69
search," but for reasons of practicality, a search warrant can be the presence of suspicious objects. physical searches are
dispensed with. Examples include search incidental to a lawful conducted to determine what the objects are. There is
arrest, search of evidence in plain view, consented search, and little question that such searches are reasonable, given
extensive search of a private moving vehicle. their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations
(1) Consent/Waiver associated with airline travel. Indeed, travelers are often
To be valid, the consent must be voluntary such that it is notified through airport public address systems, signs.
unequivocal, specific, and intelligently given, and notices in their airline tickets that they are subject to
uncontaminated by any duress or coercion. Relevant to search and, if any prohibited materials or substances are
this determination of voluntariness are the following found, such would be subject to seizure. These
characteristics of the person giving consent and the announcements place passengers on notice that ordinary
environment in which consent is given: (a) the age of the constitutional protections against warrantless searches
consenting party; (b) whether he or she was in a public or and seizures do not apply to routine airport procedure
secluded location; (c) whether he or she objected to the
search or passively looked on; (d) his or her education and Seaport Search: Seaport searches are reasonable searches
intelligence; (e) the presence of coercive police on the ground that the safety of the traveling public
procedures; (f) the belief that no incriminating evidence overrides a person's right to privacy.
will be found; (g) the nature of the police questioning; (h)
the environment in which the questioning took place; and (5) Search of a moving vehicle
(i) the possibly vulnerable subjective state of the person Reason: because a vehicle can be quickly moved out of the
consenting. locality or jurisdiction in which the warrant must be
sought
Note:
Implied acquiescence, if at all, may have been no more Automobile, or no automobile, there must be probable
than mere passive conformity given under coercive or cause for the search. Probable cause is the minimum
intimidating circumstances. requirement for a reasonable search permitted by the
Constitution.
(2) Search incidental to arrest
The arrest must be lawful, it can either be an arrest with Instances that could lead to warrantless search and seizure:
warrant or a valid warrantless arrest. The arrest must (1) Plain view doctrine – without conducting a search, an
precede the search. illegal object is exposed to the eye or hand.
An officer making an arrest may take from the person This doctrine is usually applied where the police officer is
arrested any money or property found upon his person not searching for evidence against the accused, but
which – nonetheless inadvertently comes upon an incriminating
a. was used in the commission of the crime or was the object.
fruit of the crime
b. which might furnish the prisoner with the means of Elements:
committing violence or escaping 1. Prior valid intrusion seizure based on the valid
c. which may be used in evidence in the trial of the cause warrantless arrest in which the police are legally present
in the pursuit of their official duties;
Purpose: to protect the arresting officer against physical 2. The evidence was inadvertently discovered by the
harm and to prevent the person arrested from destroying police who have the right to be where they are;
evidence within his reach. 3. The evidence must be immediately apparent;
4. Plain view justified the seizure of the evidence without
The search is limited to the person and the immediate any further search.
surrounding which the person being arrest has control.
(2) Check point – must be limited to visual search
(3) Emergency Circumstance Guidelines:
- because time is of the essence a. Point;
b. Lighted;
(4) Airport/Seaport Search c. Uniform;
Airport Search: Persons may lose the protection of the d. Police Station Written
search and seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack of (3) Stop and frisk – limited protective search of outer
subjective expectation of privacy, which expectation clothing for weapons
society is prepared to recognize as reasonable. Such Elements:
recognition is implicit in airport security procedures. a. stop = reasonable ground to suspect;
With increased concern over airplane hijacking and b. frisk = to search for weapons;
terrorism has come increased security at the nation's c. seize = plain view;
airports. Passengers attempting to board an aircraft d. arrest = in flagrante delicto;
routinely pass through metal detectors; their carryon e. search = incident to a lawful arrest
baggage as well as checked luggage are routinely
subjected to xray scans. Should these procedures suggest Two-fold interest:
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a. the general interest of effective crime prevention and for these passengers to evade the routine
detection, which underlies the recognition that a police search at the bus terminal.
officer may, under appropriate circumstances and in an c. Third, a bus can be flagged down at
appropriate manner, approach a person for purposes of designated military or police checkpoints
investigating possible criminal behavior even without where State agents can board the vehicle for
probable cause a routine inspection of the passengers and
2. the more pressing interest of safety and self- their bags or luggages.
preservation which permit the police officer to take steps
to assure himself that the person with whom he deals is 3. In both situations, the inspection of passengers
not armed with a deadly weapon that could unexpectedly and their effects prior to entry at the bus terminal
and fatally be used against the police officer. and the search of the bus while in transit must
also satisfy the following conditions to qualify as
Saluday vs. People: a valid reasonable search.
Concededly, a bus, a hotel and beach resort, and a a. First, as to the manner of the search, it must
shopping mall are all private property whose owners be the least intrusive and must uphold the
have every right to exclude anyone from entering. At the dignity of the person or persons being
same time, however, because these private premises are searched, minimizing, if not altogether
accessible to the public, the State, much like the owner, eradicating, any cause for public
can impose nonintrusive security measures and filter embarrassment, humiliation or ridicule.
those going in. The only difference in the imposition of b. Second, neither can the search result from
security measures by an owner and the State is, the any discriminatory motive such as insidious
former emanates from the attributes of ownership under profiling, stereotyping and other similar
Article 429 of the Civil Code, while the latter stems from motives. In all instances, the fundamental
the exercise of police power for the promotion of public rights of vulnerable identities, persons with
safety. Necessarily, a person's expectation of privacy is disabilities, children and other similar
diminished whenever he or she enters private premises groups should be protected.
that arc accessible to the public. c. Third, as to the purpose of the search, it must
be confined to ensuring public safety.
Guidelines on bus searches: d. Fourth, as to the evidence seized from the
1. Prior to entry, passengers and their bags and reasonable search, courts must be convinced
luggages can be subjected to a routine inspection that precautionary measures were in place to
akin to airport and seaport security protocol. In ensure that no evidence was planted against
this regard, metal detectors and xray scanning the accused.
machines can be installed at bus terminals.
Passengers can also be frisked. In lieu of Note: Aside from public transport buses, any moving
electronic scanners, passengers can be required vehicle that similarly accepts passengers at the terminal
instead to open their bags and luggages for and along its route is likewise covered by these
inspection, which inspection must be made in the guidelines. Hence, whenever compliant with these
passenger's presence. Should the passenger guidelines, a routine inspection at the terminal or of the
object, he or she can validly be refused entry into vehicle itself while in transit constitutes a reasonable
the terminal. search. Otherwise, the intrusion becomes unreasonable,
thereby triggering the constitutional guarantee under
2. While in transit, a bus can still be searched by Section 2, Article III of the Constitution.
government agents or the security personnel of
the bus owner in the following three instances: Not applicable: The guidelines do not apply to
privatelyowned cars. Neither are they applicable to
a. First, upon receipt of information that a moving vehicles dedicated for private or personal use, as
passenger carries contraband or illegal in the case of taxis, which are hired by only one or a group
articles, the bus where the passenger is of passengers such that the vehicle can no longer be
aboard can be stopped en route to allow for flagged down by any other person until the passengers
an inspection of the person and his or her on board alight from the vehicle.
effects. This is no different from an airplane
that is forced to land upon receipt of Drug Test:
information about the contraband or illegal Can mandatory drug testing be imposed on the
articles carried by a passenger onboard. following classes of persons:
b. Second, whenever a bus picks passengers en (a) candidates for public office;
route, the prospective passenger can be (b) students of secondary and tertiary schools;
frisked and his or her bag or luggage be (c) employees of public and private offices; and
subjected to the same routine inspection by (d) persons charged with certain offense?
government agents or private security
personnel as though the person boarded the a. No. If Congress cannot require a
bus at the terminal. This is because unlike an candidate for Senator to meet such
airplane, a bus is able to stop and pick additional qualification, the Commission
passengers along the way, making it possible on Elections, to be sure, is also without
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such power. The right of a citizen in the the context, the various arms through which political
democratic process of election should not authority is made effective in the Philippines, whether
be defeated by unwarranted impositions pertaining to the autonomous regions, the provincial,
of requirement not otherwise specified in city, municipal or barangay subdivisions or other forms
the Constitution. The unconstitutionality of local government.
of this requirement is rooted on its
having infringed the constitutional The Philippine government is divided into three (3)
provision defining the qualification or branches of government, namely:
eligibility requirements for one aspiring 1. Legislative
to run for and serve as Senator. 2. Executive; and
b. Yes. The constitutional viability of the 3. Judiciary
mandatory, random, and suspicionless
drug testing for students emanates JUDICIAL REVIEW
primarily from the waiver by the This power is controversial because it gives the courts the
students of their right to privacy when power to review the acts of other departments which may
they seek entry to the school, and from be a violation of the separation of powers and touches on
their voluntarily submitting their the political question issue. But this is an expanded power
persons to the parental authority of given by the Constitution so that there may be no abuse
school authorities. in the exercise of power.
c. Yes. In the case of private and public
employees, the constitutional soundness
of the mandatory, random, and Judicial Review – power to test the validity of the acts of
suspicionless drug testing proceeds from any branch of government
the reasonableness of the drug test policy
and requirement.
d. No. In the case of persons charged with a Judicial Department – final judgments or order
crime before the Prosecutor’s Office, a of lower courts
mandatory drug testing can never be i. Constitutionality or validity of:
random or suspicionless. The ideas of i.1 Treaty, International or Executive
randomness and being suspicionless are Agreements
antithetical to their being made i.2 Presidential Decrees, Proclamation,
Defendants in a criminal complaint. They Order, Instruction, Ordinance,
are not randomly picked; neither are they Regulations, Memoranda
beyond suspicion. When persons i.3 Law (statute) passed by the legislative
suspected of committing a crime are
charged, they are singled out and ii. Legality of
are impleaded against their will. The ii.1 Tax, impost, assessment, toll and
persons thus charged, by the bare fact of ii.2 Penalty thereto
being hailed before the Prosecutor’s
Office and peaceably submitting iii. Penalty Imposed (reclusion perpetua
themselves to drug testing, if that be the or higher) – death penalty –
case, do not necessarily consent to the magappeal o hindi – automatic
procedure, let alone waive their right to reviewz
privacy. To impose mandatory drug
testing on the accused is a blatant iv. Pure Question of Law
attempt to harness a medical test as•a tool
for criminal prosecution, contrary to the v. Jurisdictional issue
stated objectives of Republic Act No. v.1 lack or excess of jurisdiction
9165. (Social Justice Society vs. Dangerous v.2 grave abuse of discretion
Drugs Board, G.R. No. 157870, November
3, 2008) Executive Department
i. Presidential Decrees, Proclamation, Order,
COMPOSITION AND POWERS OF THE Instruction, Ordinance, Regulations,
GOVERNMENT ORGANS Memoranda
Definition ii. Grave Abuse of Discretion
It is the agency or instrumentality through which the will iii. Art. VII, Sec. 18: “The Supreme Court may
of the State is formulated, expressed and realized. review, in an appropriate proceeding led by
any citizen, the sufficiency of the factual basis
Government of the Republic of the Philippines defined, of the proclamation of martial law or the
Sec 2 (1) Administrative Code suspension of the privilege of the writ or the
is the corporate governmental entity through which the extension thereof, and must promulgate its
functions of government are exercised throughout the decision thereon within thirty days from its
Philippines, including, save as the contrary appears from filing.” [Sui Generis]
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b. Not all non-justiciable are political

Legislative Department questions. E.g. Religious question
i. Laws (statute)
ii. Grave abuse of discretion Requisites of Judicial Review:
1. There must be an actual case or controvery
Constitutional Commissions a. Justiciable
Art. IXA Sec. 7. Unless otherwise provided b. Not moot and academic (XPNs)
by this Constitution or by law, any decision, i. If there’s a grave violation of the
order, or ruling of each Commission may be constitution;
brought to the Supreme Court on certiorari ii. It is of transcendental
by the aggrieved party within thirty days importance or paramount
from receipt of a copy thereof. consideration;
iii. To guide the bench and the bar;
Ministerial Act v Discretion Act iv. It is capable of repetition yet
Ministerial act – the discharge of function is imperative or evading review.
necessary which requires no judgment or discretion on c. Ripe for judicial review
the part of the public officer. 2. Issue must be raised by the proper party (legal
standing/locus standi)
Discretion act – those imposed upon a public officer who a. Locus standi – right to appear in a court
has the right to decide how and when the duty shall be of justice on a given question. The
performed. question to be resolved must be one
where you will benefit or injured by the
Judgment vs Discretion judgment in the suit (real party in
Judgment – is a judicial function. Only courts give interest)
judgment. This is the determination of a question of law. b. Kinds
In judgment, there is only one way to be right and that i. Voters – validity of elections
must be in accordance with the law. (voter)
ii. Citizen – direct and personal
Discretion – is a judicial or administrative function by interest over the case; there must
which a decision may be either way and still be right. be actual or imminent injury to
you (must be injury in fact)
Grave abuse of discretion – such capricious, whimsical iii. Associational – there must be
exercise of discretion as to amount to lack or excess of injury to the association and the
jurisdiction. Must be patent, gross, despotic and arbitrary. association must have legal
personality to sue and be sued
Questions of Law v Questions of Fact iv. Taxpayer – must involve
Questions of Law – when the doubt or controversy expenditure of public money
concerns the application of law or jurisprudence to a v. Legislative – there is an act of the
certain set of facts. The truth or falsehood of such facts are executive that injures Congress
admitted. as an institution
vi. Governmental – this is to assert
Questions of fact – the issue calls for an examination of the authority of the government
the probative value of the evidence presented. The truth under the constitution.
or falsehood of the facts are disputed. vii. Intergenerational – when it
comes to environmental cases
Limitations on the power of judicial review: viii. Epistolary
1. There must be a majority of members who 3. The constitutional issue must be raised at the
actually took part in the deliberations of the issue earliest opportunity
in the case and voted thereon. a. XPN: In civil cases, the constitutional
2. A law (executive or legislative act) must be issue may be raised for the first time on
sustained unless clearly repugnant to the appeal if the determination of the
Constitution in view of presumption of validity question is necessary to the decision in a
of laws. criminal case
a. If there are two possible interpretations: i. In criminal cases, the
one is valid and the other is not, it should constitutional issue may be
be declared valid. raised anytime upon the sound
3. The question of wisdom, propriety or necessity of discretion of the court.
a law or an act is not open to determination of b. Jurisdiction may be raised at any time.
courts i. XPN: Estoppel
a. Political questions are generally 4. Necessity of deciding the constitutional issue (lis
addressed to the other departments mota)
(executive or legislative) or to the people a. The constitutional issue must be the crux
themselves. of the controversy. The issue must be a
AB Page 16 of 69
clear and unequivocal breach of the 6. Discipline judges of lower courts or order their
constitution. dismissal.
Three functions of judicial review: Period of Deciding Cases:

1. Checking 1. SC – 24 months
2. Legitimating 2. Lower Collegiate Courts – 12 months
3. Symbolic 3. Other Lower Courts – 90 days
As-applied v facial challenge
In as applied challenge, the petitioner who claims POWERS OF THE SUPREME COURT
violation of his constitutional right can raise any 1. Original Jurisdiction: over cases affecting
constitutional ground – absence of due process, etc. Here, ambassadors, other public ministers and consuls,
one can challenge the constitutionality of a statute only if and over petitions for certiorari, prohibition,
he asserts a violation of his own rights. It prohibits one mandamus, quo warranto and habeas corpus.
from assailing the constitutionality of the statue based 2. Appellate Jurisdiction: Review, revise, reverse,
solely on the violation of the rights of third persons not modify, or affirm on appeal or certiorari as the
before the court. law or Rules of Court may provide, final
judgments and orders of lower courts in (i) all
In facial challenge, the petitioner may challenge the cases in which the constitutionality or validity of
constitutionality of a statute even if he claims no violation any treaty, international or executive agreement,
of his own rights under the assailed statute where it law, presidential decree, proclamation, order,
involved free speech on grounds of overbreadth or instruction, ordinance or regulation is in
vagueness of the statute. The rationale for this is to question; (ii) all penalty imposed in relation
counter the chilling effect on protected speech that comes thereto; (iii) all cases in which the jurisdiction of
from statutes violating free speech. A person who does any lower court is in issue; (iv) all criminal cases
not know whether his speech constitutes a crime under in which the penalty imposed is reclusion
an overbroad or vague law may simply restrain himself perpetua or higher; and 9v) all cases in which
from speaking in order to avoid being charged of a crime. only an error or question of law is involved.
The overbreadth or vague law thus chills him into silence. 3. Temporary assignment of judges of lower courts
to other stations as public interest may require;
Kind of facial challenge: but the assignment shall not exceed 6 months
1. Void-for-vagueness challenge – the law is vague without the consent of the judge concerned.
and therefore void. When a statute which either 4. Order change of venue or place of trial, to avoid
forbids or requires an act in terms so vague that miscarriage of justice.
persons of common intelligence must necessarily 5. Rule-making power: promulgate rules
guess as to its meaning and differ as to its concerning the protection and enforcement of
interpretation. constitutional rights, pleadings, practice and
2. Overbreadth doctrine – a proper governmental procedure in all courts the admission to the
purpose, constitutionally subject to state practice of law, the Integrated bar, and legal
regulation, may not be achieved by means that assistance to the underprivileged.
unnecessarily sweep its subject broadly, thereby 6. Power of appointment: The Supreme Court
invading the area of protected speech. appoints all officials and employees of the
Judiciary in accordance with Civil Service Law.
7. Power of Administrative Supervision: The SC
SUPERVISION OF COURTS shall have administrative supervision over all
The Supreme Court exercises administrative supervision courts and the personnel thereof.
over all lower courts. (Art. VIII, Sec 6) 8. Annual Report: SC to submit, within 30 days
from the opening of each regular session of
The SC is assisted by the Court Administrator and the Congress, to the President and to Congress an
Deputy Court Administrators in exercising the annual report on the operations and activities of
administrative function. the Judiciary.
Administrative Powers of the Supreme Court:
1. Assign temporarily judges of lower courts to QUALIFICATIONS, DISQUALIFICATIONS, AND
other stations as public interest may require; SELECTION OF THE PRESIDENT, SENATOR,
2. Shall not exceed 6 months without consent of the MEMBERS OF THE HOUSE OF REPRESENTATIVES,
Judge concerned; JUSTICES AND JUDGES, THE OMBUDSMAN, AND
3. Order a change of venue or place of trial to avoid CONSTITUTIONAL COMMISSIONERS
miscarriage of justice;
4. Appoint all officials and employees of the
Judiciary in accordance with the Civil Service CONGRESS
Law QUALIFICATIONS
5. Supervision over all courts and the personnel
Senators House of
thereof;
Representatives
AB Page 17 of 69
Natural-Born citizen Natural-born citizen years immediately

preceeding such election
At least 35 years old on At least 25 years old on
the day of the election the day of the election PRIVILEGES, PROHIBITION, INHIBITIONS AND
DISQUALIFICATIONS, ARTICLE VII, SECTIONS 6,
Able to read and write Able to read and write 13
A registered voter A registered voter in the
[Sec. 6.] The President shall have an official residence. The
district he seeks to
salaries of the President and Vice-President shall be
Resident of the represent
determined by law and shall not be decreased during
Philippines for at least 2
their tenure. No increase in said compensation shall take
years immediately A resident of the said
effect until after the expiration of the term of the
preceding the day of the district for at least 1 year
incumbent during which such increase was approved.
election immediately preceeding
They shall not receive during their tenure any other
the day of the election
emolument from the Government or any other source.
DISQUALIFICATIONS [Sec. 13.] The President, Vice-President, the Members of
1. Incompatible office – No Senator or Member of the Cabinet, and their deputies or assistants shall not,
the House of Representatives may hold any other unless otherwise provided in this Constitution, hold any other
office or employment in the government during office or employment during their tenure. They shall not,
his term without forfeiting his seat during said tenure, directly or indirectly, practice any
2. Forbidden office – Neither shall be appointed to other profession, participate in any business, or be
any office created or whose emoluments were financially interested in any contract with, or in any
increased during the term for which he was franchise, or special privilege granted by the Government
elected or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations
Other restrictions: or their subsidiaries. They shall strictly avoid conflict of
1. 1. No Senator or Member of the House of interest in the conduct of their office.
Representatives may personally appear as
counsel before any court of justice or before the The spouse and relatives by consanguinity or affinity
Electoral Tribunals, or quasi-judicial and other within the fourth civil degree of the President shall not
administrative bodies. during his tenure be appointed as members of the
2. 2. Neither shall he, directly or indirectly, be Constitutional Commissions, or the Office of the
interested financially in any contract with, or in Ombudsman, or as Secretaries, Undersecretaries,
any franchise or special privilege granted by the chairmen or heads of bureaus or offices, including
Government, or any subdivision, agency, or government-owned or controlled corporations and their
instrumentality thereof, including any subsidiaries.
government-owned or controlled corporation, or
its subsidiary, during his term of office. Case: Pormento v Estrada, 629 SCRA 530 (2010)
3. 3. He shall not intervene in any matter before any
office of the Government for his pecuniary Facts:
benefit or where he may be called upon to act on
account of his office. Joseph Ejercito Estrada was elected President of the
Republic of the Philippines in the general elections held
on May 11, 1998. He was removed from office in 2001. He
sought the presidency again in the general elections held
PRESIDENT on May 10, 2010. Petitioner Atty. Evillo Pormento
QUALIFICATIONS opposed Estrada’s candidacy and filed a petition for
President Vice President disqualification. Because his petition was denied by the
Natural-born citizen of Same as the President, COMELEC, Estrada was able to participate as a candidate
the Philippines but no Vice President for the position of President in the May 10, 2010 elections
shall serve for more than where he garnered the second highest number of votes.
A registered voter 2 successive terms. The Estrada was not elected President the second time he ran.
VP may be appointed as
Able to read and write Members of the Cabinet. Issue:
Such appointment
At least 40 years of age requires no confirmation Whether or not Estrada was covered by the ban on the
on the day of the election; by the Commissions on President from any reelection?
and Appointments.
Held:
A resident of the
Philippines for at least 10 The case has been rendered moot and academic. Since the
issue on the proper interpretation of the phrase any
AB Page 18 of 69
reelection will be premised on a person’s second (whether Philippi es for public public Philippine
immediate or not) election as President, there is no case nes for fifteen office in office in s or has
or controversy to be resolved in this case. No live conflict fifteen (15) years the the held office
of legal rights exists. There is in this case no definite, (15) or more.* Philippin Philippin requiring
years or es es admission
concrete, real or substantial controversy that touches on
more. *Same requiring requiring to the bar
the legal relations of parties having adverse legal qualificati admissio admissio as a pre-
interests. No specific relief may conclusively be decreed ons as n to the n to the requisite
upon by this Court in this case that will benefit any of the provided practice practice for at least
parties herein. As such, one of the essential requisites for in the of law as of law as ten (10)
the exercise of the power of judicial review, the existence 1987 an an years.
of an actual case or controversy, is sorely lacking in this Constituti indispens indispens
case. on for able able
Justices of requisite requisite
the for at least for at least
JUSTICES AND JUDGES Supreme ten (10) five (5)
QUALIFICATIONS: Court. years. years.
(Sec. 7,
Ch. 1,
(1) A Judicial and Bar Council is hereby created under Batas
the supervision of the Supreme Court composed of the Pambansa
Chief Justice as ex officio Chairman, the Secretary of Blg. 129)
Justice, and a representative of the Congress as ex officio At least 35 At least 30 At least 40
At least 40 years of
years of years of years of
Members, a representative of the Integrated Bar, a age
age age age
professor of law, a retired Member of the Supreme
Court, and a representative of the private sector.
(1) No person shall be appointed Member of the Supreme
Court or any lower collegiate court unless he is a natural-
(2) The regular Members of the Council shall be
born citizen of the Philippines. A Member of the Supreme
appointed by the President for a term of four years with
Court must be at least forty years of age, and must have
the consent of the Commission on Appointments. Of the
been for fifteen years or more a judge of a lower court or
Members first appointed, the representative of the
engaged in the practice of law in the Philippines.
Integrated Bar shall serve for four years, the professor of
law for three years, the retired Justice for two years, and
(2) The Congress shall prescribe the qualifications of
the representative of the private sector for one year.
judges of lower courts, but no person may be appointed
judge thereof unless he is a citizen of the Philippines and
(3) The Clerk of the Supreme Court shall be the Secretary
a member of the Philippine Bar.
ex officio of the Council and shall keep a record of its
proceedings.
(3) A Member of the Judiciary must be a person of proven
competence, integrity, probity, and independence.
(4) The regular Members of the Council shall receive
such emoluments as may be determined by the Supreme
Court. The Supreme Court shall provide in its annual
budget the appropriations for the Council. How they will operationalize “must be a person of
proven competence, integrity, probity, and
(5) The Council shall have the principal function of independence”?
recommending appointees to the Judiciary. It may The JBC has the power to formulate rules in
exercise such other functions and duties as the Supreme measuring these qualifications provided those rules
Court may assign to it. are published in the Official Gazette and a copy is
given to the ONAR.
Supreme Court of Regional Metropolit Sandiganb
Court Appeals Trial Court an Trial ayan The power to appoint belongs to the President. The
Court, only limitation when it comes to judiciary is that the
Municipal appointee must come from the nominees shortlisted
Trial
Court,
by the JBC.
Municipal
Circuit
Trial Court Ombudsman
Natural born citizen of the Philippines Composition: An Ombudsman to be known as the
A judge A judge Has been Has been Has been Tanodbayan, one overall Deputy and at least one Deputy
of a of a lower engaged engaged a judge of each for Luzon, Visayas and Mindanao. S separate
lower court of in the in the a court of Deputy for the military establishment may likewise be
court of engaged practice practice record or appointed.
engage in the of law in of law in been
d in the practice the the engaged
practice of law in Philippin Philippin in the QUALIFICATIONS:
of law the es or has es or has practice of 1. Natural-born citizen of the Philippines
in the Philippin held a held a law in the 2. At least 40 years of age,
AB Page 19 of 69
3. Of recognized probity and independence Additional With proven Holders of Certified Public
4. Members of the Philippine Bar qualifications capacity for College Accountant with at
public Degrees least 10 years of
5. Must not have been candidates for any elective administration auditing
office in the immediately preceding election. N.B.: Majority, experience or a
6. Must have been a judged or engaged in the including the lawyer who
practice of law for 10 years or more. Chairman, practiced law for at
must be least 10 years
members of the
DISQUALIFICATIONS: Philippine Bar N.B.: At no time
and practiced shall all Members
During their tenure, shall not hold any other office or law for at least of the Commission
employment; shall not engage in the practice of any 10 years. belong to the same
profession or in the active management or control of any profession
business which in any way may be affected by the
functions of his office; shall not be financially interested, Appointments Needs the confirmation of the Commission on
directly or indirectly, in any contract with, or in any Appointments
Disqualifications No Member of a Constitutional Commission shall,
franchise or privilege granted by the Government, or any during his tenure, hold any other office or employment.
of its subdivision, etc. and shall not be qualified to run for Neither shall he engage in the practice of any profession
any office in the election immediately succeeding their or in the active management or control of any business
cessation from office. which in any way be affected by the functions of his
office, nor shall he be financially interested, directly or
indirectly, in any contract with, or in any franchise or
Constitutional Commissioners privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations or their
CIVIL COMMISSIO COMMISSION subsidiaries.
SERVICE N ON ON AUIDIT
COMMISSIO ELECTIONS Term of Office 7 years without reappointment
N Removal from Impeachment
Composition 1 Chairman 1 Chairman 1 Chairman Office
2 6 2 Commissioners
Commissioners Commissioners
Common Natural born Natural born Natural born
Qualifications citizens; citizens; citizens;
At least 35 At least 35 At least 35 years at

years at the years at the the time of the IMMUNITY OF THE PRESIDENT, PRIVILEGES OF
time of the time of the appointment;
appointment; appointment; SENATORS AND MEMBERS OF THE HOUSE OF
Not candidates for REPRESENTATIVE
Not candidates Not candidates any elective
for any elective for any elective position in the PRESIDENTIAL IMMUNITY
position in the position in the election The President cannot be sued. But the validity of his acts
election election immediately can be tested by an action against other executive officials.
immediately immediately preceding
preceding preceding appointment
appointment appointment The President by virtue of the office and may be invoked
Cannot be only by the holder of the office; not by any other person
Cannot be Cannot be appointed within in the President’s behalf. The President may waive the
appointed appointed one year after
within one year within one year election (whether protection afforded by the privilege and submit to the
after election after election candidate/s or court’s jurisdiction.
(whether (whether not)
candidate/s or candidate/s or But presidential decisions may be questioned before the
not) not) Must not be
related within the courts where there is grave abuse of discretion or that the
Must not be Must not be fourth degree of President acted without or in excess of jurisdiction.
related within related within consanguinity or
the fourth the fourth affinity to the Immunity co-extensive with tenure and covers only
degree of degree of President
consanguinity consanguinity including the official duties. After tenure, the Chief Executive cannot
or affinity to the or affinity to spouse (under RA invoke immunity from suit for civil damages arising out
President the President 6730, included are acts done by him while he was President which were not
including the including the bilas, balae and inso) performed in the exercise of official duties.
spouse (under spouse (under
RA 6730, RA 6730,
included are included are The presidential privilege of immunity cannot be invoked
bilas, balae and bilas, balae and by a non-sitting president even for acts committed during
inso) inso) his or her tenure.
XPN: The president may be sued if the act is one not

arising from official conduct.
AB Page 20 of 69
PRIVILEGES OF SENATORS AND HOUSE OF A. May Congress, through the Joint Congressional
REPRESENTATIVES Oversight Committee created in Section 25 of Rep. Act
1. Freedom from arrest – A senator or member of No. 9189, exercise the power to review, revise, amend,
and approve the Implementing Rules and Regulations
the house of representatives shall, in all offenses
that the Commission on Elections shall promulgate
punishable by not more than 6 years
without violating the independence of the COMELEC
imprisonment, be privileged from arrest while
the Congress is in session. under Section 1, Article IX-A of the Constitution?
2. Privilege of speech and of debate – No member
shall be questioned nor be held liable in any other No. The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional
place for any speech or debate in the Congress or
in any committee thereof. provisions. One such provision is Section 1 of Article IXA
of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be
STRUCTURE OF GOVERNMENT independent.
Article II, Sec. 1. The Philippines is a democratic and
republican State. Sovereignty resides in the people and all By vesting itself with the powers to approve, review,
government authority emanates from them. amend, and revise the IRR for The Overseas Absentee
Voting Act of 2003, Congress went beyond the scope of its
Legislative constitutional authority. Congress trampled upon the
constitutional mandate of independence of the
COMPOSITION COMELEC.
CONGRESS
SENATE HOUSE OF Justice Puno’s Concurring and Dissenting Opinion:
REPRESENTATIVES Concept and bases of congressional oversight
24 senators elected at Not more than 250 Broadly defined, the power of oversight embraces all
large members, unless activities undertaken by Congress to enhance its
otherwise provided by understanding of and influence over
law, consisting of: (a) the implementation of legislation it has enacted. Clearly,
District Representatives; oversight concerns post-enactment measures
(b) Party-List undertaken by Congress: (a) to monitor bureaucratic
Representatives compliance with program objectives, (b) to determine
whether agencies are properly administered, (c) to
PRIVILEGES eliminate executive waste and dishonesty, (d) to prevent
executive usurpation of legislative authority, and (d) to
a. Freedom for Arrest
assess executive conformity with the congressional
b. Speech and Debate Clause
perception of public interest.
POWERS OF CONGRESS Categories of congressional oversight functions:
1. Plenary Power – Legislative power is the power The acts done by Congress purportedly in the exercise of
to propose, enact, amend, and repeal laws. its oversight powers may be divided into three
2. Power of Appropriation – No money shall be categories, namely: scrutiny, investigation and
paid out of the treasury except in pursuance of an supervision.
appropriation made by law.
3. Power of Taxation a. Scrutiny
4. Power of Legislative Investigation Congressional scrutiny implies a lesser intensity and
continuity of attention to administrative operations.
The Senate or the House of Representatives or any of its Its primary purpose is to determine economy and
respective committees may conduct inquiries in aid of efficiency of the operation of government activities. In the
legislation in accordance with its duly published rules of exercise of legislative scrutiny, Congress may
procedure. The rights of persons appearing in or affected request information and report from the other branches
by such inquiries shall be respected. [Sec. 21] of government. It can give recommendations or pass
resolutions for consideration of the agency involved.
Requisites of Legislative Inquiries:
a. Must be in aid of legislation Legislative scrutiny is based primarily on the power of
b. Is in accordance with duly published appropriation of Congress. Under the Constitution, the
rules of procedure power of the purse belongs to Congress. The President
c. Right of persons appearing in or affected may propose the budget, but still, Congress has the final
by such inquiries shall be respected say on appropriations. Consequently, administrative
officials appear every year before the appropriation
Makalintal v Comelec, GR 157013, Jul 10, 2003 committees of Congress to report and submit a budget
Issue: Whether or not Republic Act No. 9189 (The Overseas estimate and a program of administration for the
Absentee Voting Act of 2003) is unconstitutional on the succeeding fiscal year. During budget hearings,
following grounds: administrative officials defend their budget proposals.
Also, Congress can ask the heads of departments to
AB Page 21 of 69
appear before and be heard by either House of Congress Commission provided for an exception to the actual residency
on any matter pertaining to their departments. requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect declared that
Likewise, Congress exercises legislative scrutiny thru its qualified Filipinos who are not in the Philippines may be
power of confirmation. allowed to vote even though they do not satisfy the
residency requirement in Section 1, Article V of the
b. Congressional investigation Constitution.
While congressional scrutiny is regarded as a passive
process of looking at the facts that are readily Second, residency has been interpreted as synonymous with
available, congressional investigation involves a more domicile.
intense digging of facts.
Lastly, contrary to the claim of petitioner, the execution of
c. Legislative supervision the affidavit itself is not the enabling or enfranchising act.
The third and most encompassing form by which The affidavit required in Section 5(d) is not only proof of
Congress exercises its oversight power is thru the intention of the immigrant or permanent resident to
legislative supervision. Supervision connotes a go back and resume residency in the Philippines, but
continuing and informed awareness on the part of a more significantly, it serves as an explicit expression that
congressional committee regarding executive he had not in fact abandoned his domicile of origin. Thus,
operations in a given administrative area. While both it is not correct to say that the execution of the affidavit
congressional scrutiny and investigation involve inquiry under Section 5(d) violates the Constitution that
into past executive branch actions in order to influence proscribes provisional registration or a promise by a voter
future executive branch performance, congressional to perform a condition to be qualified to vote in a political
supervision allows Congress to scrutinize the exercise exercise.
of delegated law-making authority, and permits
Congress to retain part of that delegated authority. C. Does Section 18.5 of the same law empowering the
COMELEC to proclaim the winning candidates for
Congress exercises supervision over the executive national offices and party list representatives including
agencies through its veto power. It typically utilizes the President and the Vice-President violate the
veto provisions when granting the President or an constitutional mandate under Section 4, Article VII of
executive agency the power to promulgate regulations the Constitution that the winning candidates for
with the force of law. These provisions require the President and the Vice-President shall be proclaimed as
President or an agency to present the proposed winners by Congress?
regulations to Congress, which retains a right to
approve or disapprove any regulation before it takes Section 18.5 of R.A. No. 9189 appears to be repugnant to
effect. Such legislative veto provisions usually provide Section 4, Article VII of the Constitution only insofar as
that a proposed regulation will become a law after the said Section totally disregarded the authority given to
expiration of a certain period of time, only if Congress Congress by the Constitution to proclaim the winning
does not affirmatively disapprove of the regulation in the candidates for the positions of president and
meantime. Less frequently, the statute provides that a vicepresident.
proposed regulation will become law if Congress
affirmatively approves it. In addition, the Court notes that Section 18.4 of the law,
to wit:
Other issues: 18.4. . . . Immediately upon the completion of the canvass,
B. Does Section 5(d) of Rep. Act No. 9189 allowing the the chairman of the Special Board of Canvassers shall
registration of voters who are immigrants or permanent transmit via facsimile, electronic mail, or any other means
residents in other countries by their mere act of of transmission equally safe and reliable the Certificates
executing an affidavit expressing their intention to of Canvass and the Statements of Votes to the
return to the Philippines violate the residency Commission, . . .
requirement in Section 1 of Article V of the
Constitution? clashes with paragraph 4, Section 4, Article VII of the
No. The intent of the Constitutional Commission is to Constitution which provides that the returns of every
entrust to Congress the responsibility of devising a election for President and VicePresident shall be certified
system of absentee voting. The qualifications of voters as by the board of canvassers to Congress.
stated in Section 1 shall remain except for the residency
requirement. This is in fact the reason why the The constitutionality of Section 18.5 of R.A. No. 9189 is
Constitutional Commission opted for the term qualified UPHELD with respect only to the authority given to the
Filipinos abroad with respect to the system of absentee COMELEC to proclaim the winning candidates for the
voting that Congress should draw up. It is in pursuance Senators and partylist representatives but not as to the
of that intention that the Commission provided for power to canvass the votes and proclaim the winning
Section 2 immediately after the residency requirement of candidates for President and VicePresident which is
Section 1. By the doctrine of necessary implication in lodged with Congress under Section 4, Article VII of the
statutory construction, which may be applied in Constitution.
construing constitutional provisions, the strategic
location of Section 2 indicates that the Constitutional
AB Page 22 of 69
5. Question Hour
7. Power to act as Board of Canvasses in election of
The heads of departments may upon their own initiative, President
with the consent of the President, or upon the request of
either House, as the rules of each House shall provide, The returns of every election for President and Vice-
appear before and be heard by such House on any matter President, duly certified by the board of canvassers of
pertaining to their departments. Written questions shall each province or city, shall be transmitted to the
be submitted to the President of the Senate or the Speaker Congress, directed to the President of the Senate. Upon
of the House of Representatives at least three days before receipt of the certificates of canvass, the President of the
their scheduled appearance. Interpellations shall not be Senate shall, not later than thirty days after the day of the
limited to written questions, but may cover matters election, open all certificates in the presence of the Senate
related thereto. When the security of the State or the and the House of Representatives in joint public session,
public interest so requires and the President so states in and the Congress, upon determination of the authenticity
writing, the appearance shall be conducted in executive and due execution thereof in the manner provided by
session. [Sec. 22] law, canvass the votes.
8. Power to call a special election, for President and

Legislative Inquiries and Oversight Functions Vice President
The Congress shall, at ten o’clock in the morning of the

Legislative Inquiries v Question Hour
third day after the vacancy in the offices of the President
In aid of legislation On any matter and Vice-President occurs, convene in accordance with its
pertaining to rules without need of a call and within seven days enact
subject’s department a law calling for a special election to elect a President and
Any person upon Heads of a Vice-President to be held not earlier than forty-five days
subpoena departments only nor later than sixty days from the time of such call. The
bill calling such special election shall be deemed certified
Appearance of Appearance of under paragraph 2, Section 26, Article VI of this
executive officials executive officials Constitution and shall become law upon its approval on
generally via request or upon third reading by the Congress. Appropriations for the
mandatory executive official’s special election shall be charged against any current
volition with the appropriations and shall be exempt from the
consent of the requirements of paragraph 4, Section 25, Article VI of this
president Constitution. The convening of the Congress cannot be
suspended nor the special election postponed. No special
The requirement of securing prior consent of the election shall be called if the vacancy occurs within
President prior to appearing before wither House eighteen months before the date of the next presidential
of Congress applies only to Cabinet Members election.
and not to other public officials and only when
either House of Congress conducts a Question 9. Power to judge President’s physical fitness to
Hour and not in cases of inquiries in aid of discharge the functions of the Presidency
legislation as the latter should be untrammeled
because it is co-extensive with the power to To determine by 2/3 vote whether the President is unable
legislate. to discharge the powers and duties of his office. This
occurs after the Cabinet sends a written declaration to the
Senate President and Speaker notifying them of the
President’s disability, a matter disputed by the President,
6. War powers – by a vote of 2/3 of both House in and the Cabinet stands by its findings. [Art. VII, Sec. 11]
joint session assembled, voting separately,
declare the existence of a state of war For that purpose, the Congress shall convene, if it is not
in session, within forty-eight hours, in accordance with its
(1) The Congress, by a vote of two-thirds of both Houses rules and without need of call.
in joint session assembled, voting separately, shall have
the sole power to declare the existence of a state of war. If the Congress, within ten days after receipt of the last
written declaration, or, if not in session, within twelve
(2) In times of war or other national emergency, the days after it is required to assemble, determines by a two-
Congress may, by law, authorize the President, for a thirds vote of both Houses, voting separately, that the
limited period and subject to such restrictions as it may President is unable to discharge the powers and duties of
prescribe, to exercise powers necessary and proper to his office, the Vice-President shall act as the President;
carry out a declared national policy. Unless sooner otherwise, the President shall continue exercising the
withdrawn by resolution of the Congress, such powers powers and duties of his office.
shall cease upon the next adjournment thereof.
AB Page 23 of 69
10. Power to revoke or extend suspension of the system represented therein. The Chairman of the
privilege of the writ of habeas corpus or Commission shall not vote, except in case of a tie. The
declaration of martial law Commission shall act on all appointments submitted to it
within thirty session days of the Congress from their
The President shall be the Commander-in-Chief of all submission. The Commission shall rule by a majority vote
armed forces of the Philippines and whenever it becomes of all the Members.
necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. In case 14. Power of impeachment
of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend Article XI, Section 3
the privilege of the writ of habeas corpus or place the (1) The House of Representatives shall have the exclusive power
Philippines or any part thereof under martial law. Within to initiate all cases of impeachment.
forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas (2) A verified complaint for impeachment may be filed by any
corpus, the President shall submit a report in person or in Member of the House of Representatives or by any citizen upon
writing to the Congress. The Congress, voting jointly, by a resolution of endorsement by any Member thereof, which shall
a vote of at least a majority of all its Members in regular be included in the Order of Business within ten session days,
or special session, may revoke such proclamation or and referred to the proper Committee within three session days
suspension, which revocation shall not be set aside by thereafter. The Committee, after hearing, and by a majority vote
the President. Upon the initiative of the President, the of all its Members, shall submit its report to the House within
Congress may, in the same manner, extend such sixty session days from such referral, together with the
proclamation or suspension for a period to be corresponding resolution. The resolution shall be calendared for
determined by the Congress, if the invasion or rebellion consideration by the House within ten session days from receipt
shall persist and public safety requires it. thereof.
The Congress, if not in session, shall, within twenty-four (3) A vote of at least one-third of all the Members of the House
hours following such proclamation or suspension, shall be necessary either to arm a favorable resolution with the
convene in accordance with its rules without any need of Articles of Impeachment of the Committee, or override its
a call. contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment

11. Power to concur in Presidential amnesties – is filed by at least one-third of all the Members of the House, the
Concurrence of majority of all the members of the same shall constitute the Articles of Impeachment, and trial by
Congress. the Senate shall forthwith proceed.
Except in cases of impeachment, or as otherwise provided (5) No impeachment proceedings shall be initiated against the
in this Constitution, the President may grant reprieves, same official more than once within a period of one year.
commutations and pardons, and remit fines and
forfeitures, after conviction by final judgment. (6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the
He shall also have the power to grant amnesty with the Senators shall be on oath or affirmation. When the President of
concurrence of a majority of all the Members of the the Philippines is on trial, the Chief Justice of the Supreme
Congress. Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the
Members of the Senate.
12. Power to concur in treaties or international
agreements – concurrence of at least 2/3 of all the (7) Judgment in cases of impeachment shall not extend further
members of the Senate than removal from office and disqualification to hold any office
under the Republic of the Philippines, but the party convicted
No treaty or international agreement shall be valid and shall nevertheless be liable and subject to prosecution, trial, and
effective unless concurred in by at least two-thirds of all punishment according to law.
the Members of the Senate.
(8) The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section.
13. Power to confirm certain
appointments/nominations made by the Impeachable public officers:
President 1. President;
2. Vice President;
There shall be a Commission on Appointments consisting 3. Members of the Supreme Court;
of the President of the Senate, as ex officio Chairman, 4. Members of the Constitutional Commissions;
twelve Senators and twelve Members of the House of 5. Ombudsman.
Representatives, elected by each House on the basis of
proportional representation from the political parties and Grounds:
parties or organizations registered under the party-list 1. culpable violation of the Constitution;
AB Page 24 of 69
2. treason; (OIC), Office of the Administrator, MARINA, in

3. bribery; concurrent capacity as DOTC Undersecretary. Dennis
4. graft and corruption; Funa, in his capacity as taxpayer, concerned citizen and
5. other high crimes; or lawyer, filed the instant petition challenging the
6. betrayal of public trust. constitutionality of Bautista’s appointment/designation,
which is proscribed by the prohibition on the President,
Vice President, the Members of the Cabinet, and their
15. Power to relative to natural resources deputies and assistants to hold any other office or
employment.
The Congress may, by law, allow small-scale utilization
of natural resources by Filipino citizens, as well as Issue:
cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and Whether or not the designation of Bautista as OIC of
lagoons. MARINA concurrently as Undersecretary of DOTC
violates Sec. 13, Art. VII of the Constitution?
The President may enter into agreements with foreign-
owned corporations involving either technical or Held:
financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and Yes. Section 13, Article VII of the 1987 Constitution
other mineral oils according to the general terms and provides:
conditions provided by law, based on real contributions
to the economic growth and general welfare of the The President, VicePresident, the Members of the
country. In such agreements, the State shall promote the Cabinet, and their deputies or assistants shall not,
development and use of local scientific and technical unless otherwise provided in this Constitution, hold
resources. any other office or employment during their tenure.
The President shall notify the Congress of every contract These sweeping, allembracing prohibitions imposed on
entered into in accordance with this provision, within the President and his official family, which prohibitions
thirty days from its execution. are not similarly imposed on other public officials or
employees such as the Members of Congress, members of
16. Power to propose amendments to the the civil service in general and members of the armed
Constitution (See discussion on Amendment v forces, are proof of the intent of the 1987 Constitution to
Revision) treat the President and his official family as a class by
itself and to impose upon said class stricter prohibitions.
EXECUTIVE While all other appointive officials in the civil service

are allowed to hold other office or employment in the
PRIVILEGES government during their tenure when such is allowed
1. Official Residence by law or by the primary functions of their positions,
2. Salary members of the Cabinet, their deputies and assistants
3. Presidential Immunity may do so only when expressly authorized by the
4. Presidential Privilege Constitution itself. In other words, Section 7, Article IXB
is meant to lay down the general rule applicable to all
POWERS OF THE PRESIDENT elective and appointive public officials and employees,
1. Executive Power while Section 13, Article VII is meant to be the exception
applicable only to the President, the VicePresident,
The President shall have control of all the executive Members of the Cabinet, their deputies and assistants.
departments, bureaus and offices. He shall ensure that the The phrase unless otherwise provided in this
laws be faithfully executed. Constitution must be given a literal interpretation to refer
only to those particular instances cited in the Constitution
2. Power of Appointment itself, to wit: the VicePresident being appointed as a
member of the Cabinet under Section 3, par. (2), Article
VII; or acting as President in those instances provided
IN GENERAL under Section 7, pars. (2) and (3), Article VII; and, the
Cases: Secretary of Justice being exofficio member of the Judicial
Funa v Ermita, 612 SCRA 308 (2010) and Bar Council by virtue of Section 8 (1), Article VIII.
Facts: Bautista being then the appointed Undersecretary of
DOTC, she was thus covered by the stricter prohibition
Maria Elena Bautista was appointed as Undersecretary of under Section 13, Article VII and consequently she cannot
DOTC. Bautista was designated as Undersecretary for invoke the exception provided in Section 7, paragraph 2,
Maritime Transport of the department. Following the Article IXB where holding another office is allowed by
resignation of then MARINA Administrator Vicente law or the primary functions of the position. Neither was
Suazo, Jr., Bautista was designated as OfficerinCharge
AB Page 25 of 69
she designated OIC of MARINA in an exofficio capacity, appointments or designations, whether permanent or
which is the exception recognized in Civil Liberties Union. temporary, for it is without question that the avowed
objective of Section 13, supra, is to prevent the
Given the vast responsibilities and scope of concentration of powers in the Executive Department
administration of the Authority, it cannot be considered officials, specifically the President, the Vice President,
that Bautista’s designation as OIC of MARINA was the Members of the Cabinet and their deputies and
merely an imposition of additional duties related to her assistants.
primary position as DOTC Undersecretary for Maritime
Transport. It appears that the DOTC Undersecretary for To underscore the obvious, it is not sufficient for Agra to
Maritime Transport is not even a member of the Maritime show that his holding of the other office was "allowed by
Industry Board, which includes the DOTC Secretary as law or the primary functions of his position." To claim the
Chairman, the MARINA Administrator as exemption of his concurrent designations from the
ViceChairman, and the following as members: Executive coverage of the stricter prohibition under Section 13,
Secretary (Office of the President), Philippine Ports supra, he needed to establish herein that his concurrent
Authority General Manager, Department of National designation was expressly allowed by the Constitution.
Defense Secretary, Development Bank of the Philippines But, alas, he did not do so.
General Manager, and the Department of Trade and
Industry Secretary. To be sure, Agra’s concurrent designations as Acting
Secretary of Justice and Acting Solicitor General did not
Funa v Agra, 691 SCRA 196 (2013) come within the definition of an ex officio capacity. The
term ex officio means "from office; by virtue of office." It
Facts: refers to an "authority derived from official character
merely, not expressly conferred upon the individual
Alberto Agra was appointed as the Acting Secretary of character, but rather annexed to the official position." Ex
Justice following the resignation of Secretary Agnes VST officio likewise denotes an "act done in an official
Devanadera. Subsequently, he was designated as Acting character, or as a consequence of office, and without any
Solicitor General in a concurrent capacity. Dennis Funa other appointment or authority other than that conferred
challenged the constitutionality of Agra’s concurrent by the office." An ex officio member of a board is one who
appointments or designations, claiming it to be is a member by virtue of his title to a certain office, and
prohibited under Section 13, Article VII of the 1987 without further warrant or appointment.
Constitution.
Even assuming that Agra, as the Acting Solicitor General,
Issue: was not covered by the stricter prohibition under Section
13, he nonetheless remained covered by the general
Whether or not the designation of Agra as the Acting prohibition under Section 7, supra.
Secretary of Justice, concurrently with his position of
Acting Solicitor General, violate the constitutional The general rule contained in Article IXB of the 1987
prohibition against dual or multiple offices for the Constitution permits an appointive official to hold more
Members of the Cabinet and their deputies and than one office only if "allowed by law or by the primary
assistants? functions of his position." In the case of Quimson v. Ozaeta,
this Court ruled that, "[t]here is no legal objection to a
Held: government official occupying two government offices
and performing the functions of both as long as there is no
Yes. Being designated as the Acting Secretary of Justice incompatibility." The crucial test in determining whether
concurrently with his position of Acting Solicitor General, incompatibility exists between two offices was laid out in
therefore, Agra was undoubtedly covered by Section 13, People v. Green whether one office is subordinate to the
Article VII. other, in the sense that one office has the right to
interfere with the other.
It was of no moment that Agra’s designation was in an
acting or temporary capacity. The text of Section 13, supra, [I]ncompatibility between two offices, is an inconsistency
plainly indicates that the intent of the Framers of the in the functions of the two; x x x Where one office is not
Constitution was to impose a stricter prohibition on the subordinate to the other, nor the relations of the one to the
President and the Members of his Cabinet in so far as other such as are inconsistent and repugnant, there is not
holding other offices or employments in the Government that incompatibility from which the law declares that the
or in governmentowned or government acceptance of the one is the vacation of the other. The
controlledcorporations was concerned. In this regard, to force of the word, in its application to this matter is, that
hold an office means to possess or to occupy the office, or from the nature and relations to each other, of the two
to be in possession and administration of the office, which places, they ought not to be held by the same person, from
implies nothing less than the actual discharge of the the contrariety and antagonism which would result in the
functions and duties of the office. Indeed, in the language attempt by one person to faithfully and impartially
of Section 13 itself, supra, the Constitution makes no discharge the duties of one, toward the incumbent of the
reference to the nature of the appointment or designation. other. X x x The offices must subordinate, one [over] the
The prohibition against dual or multiple offices being other, and they must, per se, have the right to interfere,
held by one official must be construed as to apply to all
AB Page 26 of 69
one with the other, before they are incompatible at d. Acceptance by the appointee.
common law.
2. For appointments which do not require confirmation:
Clearly, the primary functions of the Office of the Solicitor a. Appointment by appointing authority;
General are not related or necessary to the primary b. Issuance of the commission;
functions of the Department of Justice. Considering that c. Acceptance by the appointee.
the nature and duties of the two offices are such as to
render it improper, from considerations of public policy, Classes of Service
for one person to retain both, an incompatibility between 1. Career Service – characterized by entrance based
the offices exists, further warranting the declaration of on merit and fitness to be determined, as far as
Agra’s designation as the Acting Secretary of Justice, practicable by competitive examinations, or
concurrently with his designation as the Acting Solicitor based on highly technical qualifications,
General, to be void for being in violation of the express opportunity for advancement to higher career
provisions of the Constitution. positions, and security of tenure.
a. Open career positions – prior qualification in an
De facto officer doctrine: appropriate examination is required;
During their tenure in the questioned positions, b. Closed career positions – scientific or highly
respondents may be considered de facto officers and as technical in nature;
such entitled to emoluments for actual services rendered. c. Career Executive Service – undersecretaries,
It has been held that "in cases where there is no de jure, bureau directors, etc., where the appointee is
officer, a de facto officer, who, in good faith has had required to possess the appropriate Career
possession of the office and has discharged the duties Executive Service Officer (CESO) eligibility;
pertaining thereto, is legally entitled to the emoluments d. Career Officers (other than those belong to the
of the office, and may in an appropriate action recover the Career Executive Service) who are appointed
salary, fees and other compensations attached to the by the President;
office. e. Positions in the Armed Forces of the Philippines,
although governed by a separate merit
A de facto officer is one who derives his appointment from system;
one having colorable authority to appoint, if the office is f. Personnel of government-owned or controlled
an appointive office, and whose appointment is valid on corporations with original charter;
its face. He may also be one who is in possession of an g. Permanent laborers.
office, and is discharging its duties under color of
authority, by which is meant authority derived from an 2. Non-career Service - characterized by entrance
appointment, however irregular or informal, so that the on bases other than those of the usual tests
incumbent is not a mere volunteer. Consequently, the acts utilized for the career service, tenure limited to a
of the de facto officer are just as valid for all purposes as period specified by law, or which is co-terminous
those of a de jure officer, in so far as the public or third with that of the appointing authority or subject to
persons who are interested therein are concerned. his pleasure, or which is limited to the duration
of a particular project for which purpose the
COMMISSION ON APPOINTMENTS employment was made.
CONFIRMATION a. Elective officials and their personal and
confidential staff;
permanent or temporary b. Department Heads and officials of Cabinet rank
who hold office at the pleasure of the President,
Permanent appointments are those extended to persons and their personal and confidential staff;
possessing the requisite eligibility and are thus protected c. Chairmen and members of commissions and
by the constitutional guarantee of security of tenure. boards with fixed terms of office, and their
personal and confidential staff.
Temporary appointments are given to persons without d. Contractual personnel or those whose
such eligibility, revocable at will and without the employment in government is on accordance
necessity of just cause or a valid investigation; made on with a special contract to undertake a specific
the understanding that the appointing power has not yet work or job requiring special or technical skills
decided on a permanent appointee and that the not available in the employing agency, to be
temporary appointee may be replaced at any time a accomplished within a specific period not
permanent choice is made. exceeding one year, under their own
responsibility, with the minimum direction and
An acting appointment is a temporary appointment and supervision; and
revocable in character. e. Emergency and seasonal personnel.
Steps in the appointing process: Exceptions from competitive examination to determine merit
1. For regular appointment: and fitness to enter the civil service:
a. Nomination by the President; 1. Policy determining – in which the officer lays
b. Confirmation by the Commission on Appointments; down principal or fundamental guidelines or
c. Issuance of the commission; rules; or formulates a method of action for
AB Page 27 of 69
government or any of its subdivisions, e.g. a but ceases to be valid if disapproved by the COA or upon
department head. the next adjournment of Congress.
2. Primarily confidential – denoting not only
confidence in the aptitude of the appointee for the
duties of the office but primarily close intimacy Midnight appointments
which ensures freedom of intercourse without
embarrassment or freedom from misgivings or [Sec. 15.] Two months immediately before the next
betrayals on confidential matters of state; or one
presidential elections and up to the end of his term, a
declared to be so by the President of the President or Acting President shall not make
Philippines upon recommendation of the Civil
appointments, except temporary appointments to
Service Commission. executive positions when continued vacancies therein
3. Highly technical – which requires possession of will prejudice public service or endanger public safety.
technical skill or training in a supreme or
superior degree. Cases:
De Castro v JBC, 615 SCRA 666 (2010)
Definition of terms:
1. Appointment – the selection, by the authority Facts:
vested with the power, of an individual who is to
perform the functions of a given office. Chief Justice Renato Puno was set to retire on May 17,
2. Commission – the written evidence of the
2010, or seven days after the presidential election. Under
appointment. Section 4(1), in relation to Section 9, Article VIII, that
3. Designation – the imposition of additional duties, vacancy shall be filled within ninety days from the
usually by law, on a person already in public
occurrence thereof from a list of at least three nominees
service.
prepared by the Judicial and Bar Council for every
4. Promotion – a movement from one position to vacancy.
another with increase in duties and
responsibilities as authorized by law and usually In January 2010, the JBC has already begun the process for
accompanied by an increase in pay. the filling of the position of Chief Justice Puno in
5. Transfer – movement from one position to
accordance with its rules, however, the JBC is not yet
another which is of equivalent rank, level or
decided on when to submit to the President its list of
salary without break in service. nominees for the position due to the present controversy
6. Reinstatement – any person who has been
on the seemingly conflicting provisions of the
permanently appointed to a position in the career Constitutions:
service and who has, through no delinquency or
misconduct, been separated therefrom, may be
Section 15, Art. VII provides:
reinstated to a position in the same level for
Two months immediately before the next presidential
which he is qualified. elections and up to the end of his term, a President or
7. Detail – the movement of an employee from one
Acting President shall not make appointments, except
agency to another without the issuance of an temporary appointments to executive positions when
appointment, and shall be allowed only for a continued vacancies therein will prejudice public service
limited period in the case of employees
or endanger public safety.
occupying professional, technical and scientific
positions. Section 4 (1), Article VIII provides:
8. Reassignment – movement of an employee from The Supreme Court shall be composed of a Chief Justice
one organizational unit to another in the same
and fourteen Associate Justices. It may sit en banc or in its
department or agency, which does not involve a discretion, in division of three, five, or seven Members.
reduction in rank, status or salary.
Any vacancy shall be filled within ninety days from the
9. Reemployment – names of persons who have been occurrence thereof.
appointed permanently to positions in the career
service and who have been separated as a result Issue:
of reduction in force and/or reorganization, shall
be entered in a list from which selection for Whether or not the prohibition under Section 15, Article
reemployment shall be made. VII applies to appointments to fill a vacancy in the
Supreme Court or to other appointments to the Judiciary?
regular or ad interim
Held:
A regular appointment is one made by the President
while Congress is in session, takes effect only after No.
confirmation by the COA, and once approved, continues
until the end of the term of the appointee. Had the framers intended to extend the prohibition
contained in Section 15, Article VII to the appointment of
An ad interim appointment is one made by the President Members of the Supreme Court, they could have
while Congress is not in session, takes effect immediately, explicitly done so. They could not have ignored the
AB Page 28 of 69
meticulous ordering of the provisions. They would have presidential appointments. If that was their intention in
easily and surely written the prohibition made explicit in respect of appointments to the Judiciary, the framers, if
Section 15, Article VII as being equally applicable to the only to be clear, would have easily and surely inserted a
appointment of Members of the Supreme Court in Article similar prohibition in Article VIII, most likely within
VIII itself, most likely in Section 4 (1), Article VIII. That Section 4 (1) thereof.
such specification was not done only reveals that the
prohibition against the President or Acting President Velicaria-Garafil v O.P. GR 203372, Jun 16, 2015
making appointments within two months before the next
presidential elections and up to the end of the Presidents Facts:
or Acting Presidents term does not refer to the Members
of the Supreme Court. Prior to the conduct of the May 2010 elections, then
President Gloria MacapagalArroyo issued more than 800
Sections 4(1) imposes on the President the imperative duty appointments to various positions in several government
to make an appointment of a Member of the Supreme offices. The ban on midnight appointments in Section 15,
Court within 90 days from the occurrence of the vacancy. Article VII of the 1987 Constitution reads: Two months
The failure by the President to do so will be a clear immediately before the next presidential elections and up to the
disobedience to the Constitution. The 90day limitation end of his term, a President or Acting President shall not make
fixed in Section 4(1), Article VIII for the President to fill appointments, except temporary appointments to executive
the vacancy in the Supreme Court was undoubtedly a positions when continued vacancies therein will prejudice
special provision to establish a definite mandate for the public service or endanger public safety.
President as the appointing power, and cannot be
defeated by mere judicial interpretation in Valenzuela to Thus, for purposes of the 2010 elections, March 10, 2010
the effect that Section 15, Article VII prevailed because it was the cutoff date for valid appointments and the next
was couched in stronger negative language. day, March 11, 2010, was the start of the ban on midnight
appointments.
Given the background and rationale for the prohibition in
Section 15, Article VII, the Court concluded that the When President Benigno Aquino assumed office as
Constitutional Commission confined the prohibition to President, he issued Executive Order No. 2 recalling,
appointments made in the Executive Department. The withdrawing, and revoking appointments issued by
framers did not need to extend the prohibition to President MacapagalArroyo which violated the
appointments in the Judiciary, because their constitutional ban on midnight appointments.
establishment of the JBC and their subjecting the Consequently, the following petitions were filed when
nomination and screening of candidates for judicial the said EO was enforced by different executive agencies.
positions to the unhurried and deliberate prior process of Petitioners’ schedule of appointments are detailed in the
the JBC ensured that there would no longer be midnight table below:
appointments to the Judiciary. If midnight appointments
in the mold of Aytona were made in haste and with Date of
Date
irregularities, or made by an outgoing Chief Executive in Receipt by
Date of Date of of
the last days of his administration out of a desire to G.R. No. Appointme Transmitt
Malacañan
Oath
Assumptio
subvert the policies of the incoming President or for nt Letter al Letter
g Records
of
n of Office
partisanship, the appointments to the Judiciary made Office
Office
(MRO)
after the establishment of the JBC would not be suffering
from such defects because of the JBCs prior processing of
candidates. Also, the intervention of the JBC eliminates 203372 22
(Atty. 5 March 8 March 13 May Marc 6 April
the danger that appointments to the Judiciary can be
Velicaria 2010 2010 2010 h 2010
made for the purpose of buying votes in a coming
Garafil) 2010
presidential election, or of satisfying partisan
considerations. The experience from the time of the
206290 15
establishment of the JBC shows that even candidates for
(Atty. 23 February 9 March 12 March Marc 15 March
judicial positions at any level backed by people influential Venturanza 2010 2010 2010 h 2010
with the President could not always be assured of being ) 2010
recommended for the consideration of the President,
because they first had to undergo the vetting of the JBC 209138 13
and pass muster there. Indeed, the creation of the JBC was (Villanueva
3 March
4 May 2010 April
precisely intended to depoliticize the Judiciary by doing )
2010
2010
away with the intervention of the Commission on
Appointments. 18
209138 5 March 13 May Marc
Moreover, Section 14 and Section 16 of Art. VII refer only (Rosquita) 2010 2010 h
to appointments within the Executive Department means 2010
that that Section 15 also applies only to the Executive
Department. It is absurd to assume that the framers 212030 1 March 25
deliberately situated Section 15 between Section 14 and (Atty. 2010 Marc
Section 16, if they intended Section 15 to cover all kinds of Tamondon h
AB Page 29 of 69
g) 2010 Presidential power to appoint. It is relatively easy to

and  antedate appointment papers and make it appear that
6 July they were issued prior to the appointment ban, but it is
2010 more difficult to simulate the entire appointment process
up until acceptance by the appointee.
Issue: Petitioners have failed to show compliance with all four

elements of a valid appointment. They cannot prove with
Whether or not the above appointments violated the certainty that their appointment papers were transmitted
constitutional ban on midnight appointments? before the appointment ban took effect.
Held:
3. Power of Control
Yes.
The President shall have control of all the executive
Based on prevailing jurisprudence, appointment to a departments, bureaus, and offices. He shall ensure that
government post is a process that takes several steps to the laws be faithfully executed.
complete. Any valid appointment, including one made
under the exception provided in Section 15, Article VII of a. Doctrine of qualified political agency
the 1987 Constitution, must consist of the President / alter ego principle
signing an appointee's appointment paper to a vacant
office, the official transmittal of the appointment paper Under this doctrine which recognizes the establishment
(preferably through the MRO), receipt of the appointment of a single executive, all executives and administrative
paper by the appointee, and acceptance of the organizations are adjuncts of the Executive Department,
appointment by the appointee evidenced by his or her the heads of the various executive departments are
oath of office or his or her assumption to office. assistants and agents of the Chief Executive, and except
in cases where the Chief Executive is required by the
The following elements should always concur in the Constitution or law to act in person or the exigencies of
making of a valid (which should be understood as both the situation demand that he act personally, the
complete and effective) appointment: (1) authority to multifarious executive and administrative functions of
appoint and evidence of the exercise of the authority; (2) the Chief Executive are performed by and through the
transmittal of the appointment paper and evidence of the executive departments, and the acts of the Secretaries of
transmittal; (3) a vacant position at the time of such departments performed and promulgated in the
appointment; and (4) receipt of the appointment paper regular course of business, are unless disapproved or
and acceptance of the appointment by the appointee who reprobated by the Chief Executive, presumptively the
possesses all the qualifications and none of the acts of the Chief Executive.
disqualifications. The concurrence of all these elements
should always apply, regardless of when the Cse: Hontiveros-Baraquel v Toll
appointment is made, whether outside, just before, or Regulatory Board, GR 181293, Feb 23, 2015
during the appointment ban. These steps in the
appointment process should always concur and operate Facts:
as a single process. There is no valid appointment if the
process lacks even one step. The Toll Regulatory Board (TRB) was created to supervise
and regulate, on behalf of the government, the collection
In this case, all of petitioners' appointments are midnight of toll fees and the operation of toll facilities by the private
appointments and are void for violation of Section 15, sector. Philippine National Construction Corporation
Article VII of the 1987 Constitution. None of the (PNCC) was given the right, privilege, and authority to
petitioners have shown that their appointment papers construct, operate, and maintain toll facilities in the North
(and transmittal letters) have been issued (and released) and South Luzon Toll Expressways for a period of 30
before the ban." The dates of receipt by the MRO, which years starting 1 May 1977. TRB and PNCC later entered
in these cases are the only reliable evidence of actual into a Toll Operation Agreement (TOA).
transmittal of the appointment papers by President
MacapagalArroyo, are dates clearly falling during the PNCC entered into an agreement with PT Citra Lamtoro
appointment ban. Thus, all the appointments in these Gung Persada (CITRA) whereby the latter committed to
cases are midnight appointments in violation of Section provide PNCC with a prefeasibility study on the
15, Article VII of the 1987 Constitution. proposed Metro Manila Expressway (MME) project. As a
result of the feasibility and related studies, PNCC and
Excluding the act of acceptance from the appointment CITRA submitted, through the TRB, a Joint Investment
process leads us to the very evil which we seek to avoid Proposal (JIP) to the Republic of the Philippines. The JIP
(i.e., antedating of appointments). Excluding the act of embodied the implementation schedule for the financing,
acceptance will only provide more occasions to honor the design and construction of the MMS in three stages: the
Constitutional provision in the breach. The inclusion of South Metro Manila Skyway, the North Metro Manila
acceptance by the appointee as an integral part of the Skyway, and the Central Metro Manila Skyway. PNCC
entire appointment process prevents the abuse of the and CITRA then entered into a Business and Joint
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Venture Agreement and created the Citra Metro Manila secretaries, whose acts are presumptively the acts of the
Tollways Corporation (CMMTC). CMMTC was a joint President unless disapproved by the latter.
venture corporation organized under Philippine laws to
serve as a channel through which CITRA shall participate Applying the doctrine of qualified political agency, we
in the construction and development of the project. The have ruled that the Secretary of Environment and Natural
Republic of the Philippines – through the TRB – as Resources can validly order the transfer of a regional
Grantor, CMMTC as Investor, and PNCC as Operator office by virtue of the power of the President to
executed a Supplemental Toll Operation Agreement reorganize the national government. In Constantino v.
(STOA) covering Stage 1, Phases 1 and 2; and Stage 2, Cuisia, the Court upheld the authority of the Secretary of
Phase 1 of the South Metro Manila Skyway. Under the Finance to execute debtrelief contracts. The authority
STOA, the design and construction of the project roads emanates from the power of the President to contract
became the primary and exclusive privilege and foreign loans under Section 20, Article VII of the
responsibility of CMMTC. The operation and Constitution. In Angeles v. Gaite, the Court ruled that there
maintenance of the project roads became the primary and can be no issue with regard to the President’s act of
exclusive privilege and responsibility of the PNCC limiting his power to review decisions and orders of the
Skyway Corporation (PSC), a wholly owned subsidiary Secretary of Justice, especially since the decision or order
of PNCC, which undertook and performed the latter’s was issued by the secretary, the President’s “own alter
obligations under the STOA. CMMTC completed the ego.”
design and construction of Stage 1 of the South Metro
Manila Skyway, which was operated and maintained by There can be no question that the act of the secretary is the
PSC. Subsequently, the Republic of the Philippines, act of the President, unless repudiated by the latter. In this
through the TRB, CMMTC, and PNCC executed an case, approval of the ASTOA by the DOTC Secretary had
Amendment to the Supplemental Toll Operation the same effect as approval by the President. The same
Agreement (ASTOA). The ASTOA incorporated the would be true even without the issuance of E.O. 497, in
amendments, revisions, and modifications necessary to which the President, on 24 January 2006, specifically
cover the design and construction of Stage 2 of the South delegated to the DOTC Secretary the authority to approve
Metro Manila Skyway. Also under the ASTOA, Skyway contracts entered into by the TRB.
O & M Corporation (SOMCO) replaced PSC in
performing the operations and maintenance of Stage 1 of b. Executive departments and offices
the South Metro Manila Skyway. The DOTC Secretary c. General supervision over local
Leandro Mendoza approved the ASTOA. government units, Article X
Petitioners now assail the validity of the ASTOA on the The President of the Philippines shall exercise general
ground that the approval by the DOTC Secretary of the supervision over local governments. Provinces with
ASTOA could not take the place of the presidential respect to component cities and municipalities, and cities
approval required under P.D. 1113 and P.D. 1894 and municipalities with respect to component barangays
concerning the franchise granted to PNCC, among shall ensure that the acts of their component units are
others. within the scope of their prescribed powers and
functions.
Respondents countered that there can be no valid
objection to the approval of the ASTOA by the DOTC 4. Military Powers
Secretary, because he was authorized by the President to
do so by virtue of E.O. 497. Also, the phrase “subject to Cases:
the approval of the President of the Philippines” in P.D. - Kulayan v Tan, 675 SCRA 482 (2012)
1112 and 1113 does not in any way mean that the Facts:
presidential approval must be obtained prior to the
execution of a contract, or that the approval be made Three members of the International Committee of the Red
personally by the President. The presidential approval Cross (ICRC) were kidnapped by three armed men who
may be obtained under the doctrine of qualified political were later confirmed to be members of the Abu Sayyaf
agency. Group (ASG).
Issue: In March 2009, Governor Abdusakur Mahail Tan, the

Provincial Governor of Sulu, issued Proclamation No. 1,
Whether or not the approval of the DOTC Secretary of the Series of 2009 (Proclamation 1-09), declaring a state of
ASTOA was valid? emergency in the province of Sulu. It cited the
kidnapping incident as a ground for the said declaration,
Held: describing it as a terrorist act pursuant to the Human
Security Act (R.A. 9372). It also invoked Section 465 of the
Yes. The doctrine of qualified political agency declares Local Government Code of 1991 (R.A. 7160), which
that, save in matters on which the Constitution or the bestows on the Provincial Governor the power to carry
circumstances require the President to act personally, out emergency measures during man-made and natural
executive and administrative functions are exercised disasters and calamities, and to call upon the appropriate
through executive departments headed by cabinet national law enforcement agencies to suppress disorder
and lawless violence. In the same Proclamation,
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respondent Tan called upon the PNP and the CEF National Police Commission (NAPOLCOM) and its
[Civilian Emergency Force, a group of armed male departments belong.
civilians coming from different municipalities], to set up
checkpoints and chokepoints, conduct general search and Its mandate is to uphold the sovereignty of the
seizures including arrests, and other actions necessary to Philippines, support the Constitution, and defend the
ensure public safety. Republic against all enemies, foreign and domestic. Its
aim is also to secure the integrity of the national territory.
Some residents were detained pursuant to the said Second, there was no evidence or even an allegation on
Proclamation for being suspected as ASG supporters. record that the local police forces were inadequate to cope
with the situation or apprehend the violators. If they were
Petitioners assail the constitutionality of the Proclamation inadequate, the recourse of the provincial governor was
No. 1 and its Implementing Guidelines contending that to ask the assistance of the Secretary of Interior and Local
they were issued ultra vires, and thus null and void, for Government, or such other authorized officials, for the
violating Sections 1 and 18, Article VII of the Constitution, assistance of national law enforcement agencies.
which grants the President sole authority to exercise
emergency powers and calling-out powers as the chief (2) No. Pursuant to the national policy to establish one
executive of the Republic and commander-in-chief of the police force, the organization of private citizen armies is
armed forces. proscribed.
Issue: Discussion:
(1) Whether or not a Provincial Governor has the power There is one repository of executive powers, and that is
to declare a state of national emergency and exercise the President of the Republic. Corollarily, it is only the
emergency powers? President, as Executive, who is authorized to exercise
emergency powers as provided under Section 23, Article
(2) Whether or not the Provincial Governor has power to VI, of the Constitution, as well as what became known as
convene CEF? the calling-out powers under Section 7, Article VII
thereof.
Held:
Springing from the well-entrenched constitutional
(1) No. precept of One President is the notion that there are
certain acts which, by their very nature, may only be
Governor Tan is not endowed with the power to call upon performed by the president as the Head of the State. One
the armed forces at his own bidding. In issuing the of these acts or prerogatives is the bundle of Commander-
assailed proclamation, Governor Tan exceeded his in-Chief powers to which the “calling-out” powers
authority when he declared a state of emergency and constitutes a portion.
called upon the Armed Forces, the police, and his own
Civilian Emergency Force. The calling-out powers Moreover, a local chief executive, such as the provincial
contemplated under the Constitution is exclusive to the governor, exercises operational supervision over the
President. An exercise by another official, even if he is the police, and may exercise control only in day-to-day
local chief executive, is ultra vires, and may not be justified operations, it is still the President who is authorized to
by the invocation of Section 465 of the Local Government exercise supervision and control over the police, through
Code. the National Police Commission. The framers never
intended for local chief executives to exercise unbridled
There is nothing in the Local Government Code which control over the police in emergency situations.
justifies the acts sanctioned under the said Proclamation.
Not even Section 465 of the said Code, in relation to - Ampatuan v Puno, 651 SCRA 228
Section 16. (2011)
Facts:
Tan cannot rely on paragraph 1, subparagraph (vii) of
Article 465 above, as the said provision expressly refers to After the gruesome massacre of 57 men and women,
calamities and disasters, whether man-made or natural. including some news reporters, then President Gloria
The governor, as local chief executive of the province, is MacapagalArroyo issued Proclamation 1946, placing the
certainly empowered to enact and implement emergency Provinces of Maguindanao and Sultan Kudarat and the
measures during these occurrences. But the kidnapping City of Cotabato under a state of emergency. She directed
incident in the case at bar cannot be considered as a the Armed Forces of the Philippines (AFP) and the
calamity or a disaster. He cannot find any legal mooring Philippine National Police (PNP) to undertake such
under this provision to justify its actions. measures as may be allowed by the Constitution and by
law to prevent and suppress all incidents of lawless
Paragraph 2, subparagraph (vi) of the same provision is violence in the named places.
equally inapplicable for two reasons. First, the Armed
Forces of the Philippines does not fall under the category President Arroyo also issued Administrative Order 273
of a “national law enforcement agency,” to which the (AO 273) transferring supervision of the Autonomous
Region of Muslim Mindanao (ARMM) from the Office of
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the President to the Department of Interior and Local Congress, such powers shall cease upon the next
Government (DILG). But, due to issues raised over the adjournment thereof.
terminology used in AO 273, the President issued
Administrative Order 273A (AO 273A) amending the The President did not proclaim a national emergency,
former, by delegating instead of transferring supervision only a state of emergency in the three places mentioned.
of the ARMM to the DILG.  And she did not act pursuant to any law enacted by
Congress that authorized her to exercise extraordinary
Petitioners subsequently assail the validity of the powers. The calling out of the armed forces to prevent or
proclamation and the orders which empowered the DILG suppress lawless violence in such places is a power that
Secretary to take over ARMMs operations and seize the the Constitution directly vests in the President. She did
regional governments powers, in violation of the not need a congressional authority to exercise the same.
principle of local autonomy under Republic Act 9054 (also
known as the Expanded ARMM Act) and the The Presidents call on the armed forces to prevent or
Constitution. The President gave the DILG Secretary the suppress lawless violence springs from the power vested
power to exercise, not merely administrative supervision, in her under Section 18, Article VII of the Constitution,
but control over the ARMM since the latter could suspend which provides:
ARMM officials and replace them. Petitioner ARMM Sec. 18. The President shall be the CommanderinChief
officials claimed that the President had no factual basis of all armed forces of the Philippines and whenever it
for declaring a state of emergency, especially in the becomes necessary, he may call out such armed forces to
Province of Sultan Kudarat and the City of Cotabato, prevent or suppress lawless violence, invasion or
where no critical violent incidents occurred. The rebellion.
deployment of troops and the taking over of the ARMM
constitutes an invalid exercise of the Presidents It is to the President that the Constitution entrusts the
emergency powers. determination of the need for calling out the armed forces
to prevent and suppress lawless violence. Unless it is
Issue: shown that such determination was attended by grave
abuse of discretion, the Court will accord respect to the
(1) Whether or not Proclamation 1946 and AOs 273 and President’s judgment.
273A violate the principle of local autonomy under
Section 16, Article X of the Constitution, and Section 1, - Fortun v Macapagal-Arroyo 668
Article V of the Expanded ARMM Organic Act? SCRA 504 (2012)
(2) Whether or not President Arroyo invalidly exercised
emergency powers when she called out the AFP and the Facts:
PNP to prevent and suppress all incidents of lawless
violence in Maguindanao, Sultan Kudarat, and Cotabato On November 23, 2009 heavily armed men, believed led
City? by the ruling Ampatuan family, gunned down and buried
under shoveled dirt 57 innocent civilians on a highway in
Held: Maguindanao. In response to this carnage, on November
24 President Arroyo issued Presidential Proclamation
(1) No. The DILG Secretary did not take over control of 1946, declaring a state of emergency in Maguindanao,
the powers of the ARMM. After law enforcement agents Sultan Kudarat, and Cotabato City to prevent and
took respondent Governor of ARMM into custody for suppress similar lawless violence in Central Mindanao.
alleged complicity in the Maguindanao massacre, the
ARMM ViceGovernor, petitioner Ansaruddin Adiong, Believing that she needed greater authority to put order
assumed the vacated post on December 10, 2009 pursuant in Maguindanao and secure it from large groups of
to the rule on succession found in Article VII, Section 12, persons that have taken up arms against the constituted
of RA 9054. In turn, Acting Governor Adiong named the authorities in the province, on December 4, 2009
then Speaker of the ARMM Regional Assembly, President Arroyo issued Presidential Proclamation 1959
petitioner SahaliGenerale, Acting ARMM declaring martial law and suspending the privilege of the
ViceGovernor. In short, the DILG Secretary did not take writ of habeas corpus in that province except for identified
over the administration or operations of the ARMM.  areas of the Moro Islamic Liberation Front.
(2) No. Such deployment is not by itself an exercise of Two days later (December 6, 2009), President Arroyo
emergency powers as understood under Section 23 (2), submitted her report to Congress. On December 9, 2009
Article VI of the Constitution, which provides: Congress, in joint session, convened pursuant to Section
18, Article VII of the 1987 Constitution to review the
Sec. 23. x x x (2) In times of war or other national validity of the Presidents action. But, two days later or on
emergency, the Congress may, by law, authorize the December 12 before Congress could act, the President
President, for a limited period and subject to such issued Presidential Proclamation 1963, lifting martial law
restrictions as it may prescribe, to exercise powers and restoring the privilege of the writ of habeas corpus in
necessary and proper to carry out a declared national Maguindanao.
policy. Unless sooner withdrawn by resolution of the
Petitioners assail the constitutionality of Proclamation
1959.
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in Lagman vs. Medialdiea; in that case, the SC said that

Issue: the Court can simultaneously exercise its power of review
with, and independently from, the power to revoke by
Whether or not Proclamation 1959 is unconstitutional? Congress. Corollary, any perceived inaction or default on
the part of Congress does not deprive or deny the Court
Held: of its power to review]
The case is moot and academic. President Arroyo - Lagman v Medialdea, GR 231658, Jul
withdrew Proclamation 1959 before the joint houses of 4, 2017
Congress, which had in fact convened, could act on the
same. Consequently, the petitions in these cases have Facts:
become moot and the Court has nothing to review. The
lifting of martial law and restoration of the privilege of Effective May 23, 2017, and for a period not exceeding 60
the writ of habeas corpus in Maguindanao was a days, President Rodrigo Roa Duterte issued Proclamation
supervening event that obliterated any justiciable No. 216 declaring a state of martial law and suspending
controversy. the privilege of the writ of habeas corpus in the whole of
Mindanao. He cited the series of violent acts committed
Discussion: by the Maute terrorist group such as the attack on the
military outpost in Butig, Lanao del Sur in February 2016,
Although the power to proclaim martial law or suspend killing and wounding several soldiers, and the mass
the privilege of the writ of habeas corpus is specifically jailbreak in Marawi City in August 2016, freeing their
vested in the President, he shares such power with the arrested comrades and other detainees and that the same
Congress. Thus: Maute terrorist group has taken over a hospital in Marawi
1. The President’s proclamation or suspension is City, Lanao del Sur, established several checkpoints
temporary, good for only 60 days; within the City, burned down certain government and
2. He must, within 48 hours of the proclamation or private facilities and inflicted casualties on the part of
suspension, report his action in person or in writing to Government forces, and started flying the flag of the
Congress; Islamic State of Iraq and Syria (ISIS) in several areas.
3. Both houses of Congress, if not in session must jointly
convene within 24 hours of the proclamation or Several petitions were filed questioning the validity of
suspension for the purpose of reviewing its validity; and Proclamation No. 216 on the following grounds:
4. The Congress, voting jointly, may revoke or affirm the (1) the declaration of martial law has no sufficient factual
Presidents proclamation or suspension, allow their basis;
limited effectivity to lapse, or extend the same if Congress (2) there is no factual basis for the imposition of martial
deems warranted. law in the entire Mindanao.
It is evident that under the 1987 Constitution the Main Issue: whether Proclamation No. 216, Declaring a
President and the Congress act in tandem in exercising State of Martial Law and Suspending the Privilege of the
the power to proclaim martial law or suspend the Writ of Habeas Corpus in the whole of Mindanao, lacks
privilege of the writ of habeas corpus. They exercise the sufficient factual basis?
power, not only sequentially, but in a sense jointly since,
after the President has initiated the proclamation or the Preliminaries:
suspension, only the Congress can maintain the same The President as the CommanderinChief wields the
based on its own evaluation of the situation on the extraordinary powers of: a) calling out the armed forces;
ground, a power that the President does not have. b) suspending the privilege of the writ of habeas corpus;
and c) declaring martial law. These powers may be
Consequently, although the Constitution reserves to the resorted to only under specified conditions.
Supreme Court the power to review the sufficiency of the Among the three extraordinary powers, the calling out
factual basis of the proclamation or suspension in a power is the most benign and involves ordinary police
proper suit, it is implicit that the Court must allow action. The President may resort to this extraordinary
Congress to exercise its own review powers, which is power whenever it becomes necessary to prevent or suppress
automatic rather than initiated. Only when Congress lawless violence, invasion, or rebellion. "[T]he power to
defaults in its express duty to defend the Constitution call is fully discretionary to the President;" the only
through such review should the Supreme Court step in as limitations being that he acts within permissible
its final rampart. The constitutional validity of the constitutional boundaries or in a manner not constituting
President’s proclamation of martial law or suspension of grave abuse of discretion. In fact, "the actual use to which
the writ of habeas corpus is first a political question in the the President puts the armed forces is x x x not subject to
hands of Congress before it becomes a justiciable one in judicial review."
the hands of the Court. If the Congress procrastinates or
altogether fails to fulfill its duty respecting the The extraordinary powers of suspending the privilege of
proclamation or suspension within the short time the writ of habeas corpus and/or declaring martial law
expected of it, then the Court can step in, hear the may be exercised only when there is actual invasion or
petitions challenging the President's action, and ascertain rebellion, and public safety requires it. The 1987
if it has a factual basis. [note: this passage will be revisited Constitution imposed the following limits in the exercise
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of these powers: "(1) a time limit of sixty days; (2) review sufficient for him to declare martial law or suspend the
and possible revocation by Congress; [and] (3) review and privilege of the writ of habeas corpus.
possible nullification by the Supreme Court."
What are parameters for determining the sufficiency of
What really happens during martial law? the/actual basis/or the declaration of martial law and/or the
suspension of the privilege of the writ of habeas corpus?
A state of martial law is peculiar because the President, at l) actual rebellion or invasion;
such a time, exercises police power, which is normally a 2) public safety requires it; the first two requirements
function of the Legislature. In particular, the President must concur; and
exercises police power, with the military’s assistance, to 3) there is probable cause for the President to believe that
ensure public safety and in place of government agencies there is actual rebellion or invasion.
which for the time being are unable to cope with the
condition in a locality, which remains under the control Graduation" of powers refers to hierarchy based on
of the State. Quoting Justice Mendoza, under a valid scope and effect; it does not refer to a sequence, order,
declaration of martial law, the President as or arrangement by which the CommanderinChief
CommanderinChief may order the "(a) arrests and must adhere to.
seizures without judicial warrants; (b) ban on public These extraordinary powers are conferred by the
assemblies; (c) [takeover] of news media and agencies and Constitution with the President as CommanderinChief;
press censorship; and (d) issuance of Presidential Decrees it therefore necessarily follows that the power and
x x x" But the abovecited acts that the President may prerogative to determine whether the situation warrants
perform do not give him unbridled discretion to infringe a mere exercise of the calling out power; or whether the
on the rights of civilians during martial law. This is situation demands suspension of the privilege of the writ
because martial law does not suspend the operation of the of habeas corpus; or whether it calls for the declaration of
Constitution, neither does it supplant the operation of martial law, also lies, at least initially, with the President.
civil courts or legislative assemblies. Moreover, the The power to choose, initially, which among these
guarantees under the Bill of Rights remain in place during extraordinary powers to wield in a given set of conditions
its pendency. And in such instance where the privilege of is a judgment call on the part of the President. As
the writ of habeas corpus is also suspended, such CommanderinChief, his powers are broad enough to
suspension applies only to those judicially charged with include his prerogative to address exigencies or threats
rebellion or offenses connected with invasion. that endanger the government, and the very integrity of
the State.
What is the scope of the power of judicial review on the
determination of the sufficiency of the factual basis of Whether Proclamation No. 216, Declaring a State of
the declaration of martial law and suspension of the Martial Law and Suspending the Privilege of the Writ
privilege of habeas corpus? of Habeas Corpus in the whole of Mindanao, lacks
sufficient factual basis?
The "sufficiency of factual basis test"- The Court does not
need to satisfy itself that the President's decision is No. A review of the facts similarly leads the Court to
correct, rather it only needs to determine whether the conclude that the President, in issuing Proclamation No.
President's decision had sufficient factual bases. 216, had sufficient factual bases tending to show that
actual rebellion exists. The President's conclusion, that
As CommanderinChief, the President has the sole there was an armed public uprising, the culpable purpose
discretion to declare martial law and/or to suspend the of which was the removal from the allegiance of the
privilege of the writ of habeas corpus, subject to the Philippine Government a portion of its territory and the
revocation of Congress and the review of this Court. Since deprivation of the President from performing his powers
the exercise of these powers is a judgment call of the and prerogatives, was reached after a tactical
President, the determination of this Court as to whether consideration of the facts. In fine, the President
there is sufficient factual basis for the exercise of such, satisfactorily discharged his burden of proof.
must be based only on facts or information known by or
available to the President at the time he made the Inaccuracies in the reports relied upon by the President
declaration or suspension, which facts or information are are just pieces and parcels of the Report; along with these
found in the proclamation as well as the written Report alleged false data is an arsenal of other independent facts
submitted by him to Congress. These may be based on the showing that more likely than not, actual rebellion exists.
situation existing at the time the declaration was made or Moreover, the Court is not concerned about absolute
past events. As to how far the past events should be from correctness, accuracy, or precision of the facts because to
the present depends on the President. Past events may be do so would unduly tie the hands of the President in
considered as justifications for the declaration and/or responding to an urgent situation.
suspension as long as these are connected or related to the
current situation existing at the time of the declaration. Whether or not the declaration of martial law in the
WHOLE of Mindanao justified?
Thus, the review would be limited to an examination on
whether the President acted within the bounds set by the Section 18, Article VII of the Constitution states that "[i]n
Constitution, i.e., whether the facts in his possession prior case of invasion or rebellion, when the public safety
to and at the time of the declaration or suspension are requires it, [the President] may x x x suspend the privilege
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of writ of habeas corpus or place the Philippines or any regulations shall be granted by the President without the
part thereof under martial law." Clearly, the Constitution favorable recommendation of the Commission
grants to the President the discretion to determine the [COMELEC].
territorial coverage of martial law and the suspension of
the privilege of the writ of habeas corpus. He may put the a, Nature and limitations
entire Philippines or only a part thereof under martial Cases:
law. - Monsanto v Factoran, Jr., 170 SCRA
190 (1989)
The “gravamen of the crime of rebellion is an armed Facts:
public uprising against the government;" and that by
nature, "rebellion is x x x a crime of masses or multitudes, Salvacion Monsanto (then assistant treasurer of Calbayog
involving crowd action, that cannot be confined a priori, City) was convicted of the complex crime of estafa thru
within predetermined bounds." We understand this to falsification of public documents. Monsanto appealed her
mean that the precise extent or range of the rebellion conviction before the Supreme Court but her conviction
could not be measured by exact metes and bounds. was affirmed, she then filed a motion for reconsideration
and while that motion was pending, she was extended by
In fine, it is difficult, if not impossible, to fix the territorial President Marcos an absolute pardon which she accepted.
scope of martial law in direct proportion to the "range" of
actual rebellion and public safety simply because By reason of said pardon, Monsanto wrote the Calbayog
rebellion and public safety have no fixed physical City treasurer requesting that she be restored to her
dimensions. Their transitory and abstract nature defies former post as assistant city treasurer since the same was
precise measurements; hence, the determination of the still vacant. His letter-request was referred to the Ministry
territorial scope of martial law could only be drawn from of Finance and the latter ruled that she may be reinstated
arbitrary, not fixed, variables. The Constitution must to her position without the necessity of a new
have considered these limitations when it granted the appointment not earlier than the date she was extended
President wide leeway and flexibility in determining the the absolute pardon. She sought reconsideration arguing
territorial scope of martial law. that the full pardon bestowed on her has wiped out the
Moreover, the President's duty to maintain peace and crime which implies that her service in the government
public safety is not limited only to the place where there has never been interrupted and therefore the date of her
is actual rebellion; it extends to other areas where the reinstatement should correspond to the date of her
present hostilities are in danger of spilling over. It is not preventive suspension which is August 1, 1982; that she
intended merely to prevent the escape of lawless elements is entitled to backpay for the entire period of her
from Marawi City, but also to avoid enemy suspension. The Ministry of Finance referred the matter
reinforcements and to cut their supply lines coming from to the Office of the President. The OP opined that
different parts of Mindanao. Thus, limiting the acquittal, not absolute pardon, of a former public officer
proclamation and/or suspension to the place where there is the only ground for reinstatement to his former position
is actual rebellion would not only defeat the purpose of and entitlement to payment of his salaries, benefits and
declaring martial law, it will make the exercise thereof emoluments due to him during the period of his
ineffective and useless. suspension pendente lite. In fact, in such a situation, the
former public official must secure a reappointment before
Also, Marawi lies in the heart of Mindanao. In fact, the he can reassume his former position.
Kilometer Zero marker in Mindanao is found in Marawi
City thereby making Marawi City the point of reference Issue:
of all roads in Mindanao.
Whether or not Monsanto, after her pardon, may be
Thus, there is reasonable basis to believe that Marawi is restored to his former position without need of a new
only the staging point of the rebellion, both for symbolic appointment?
and strategic reasons. Marawi may not be the target but
the whole of Mindanao. Held:
Pardon is defined as "an act of grace, proceeding from the

5. Pardoning Power power entrusted with the execution of the laws, which
exempts the individual, on whom it is bestowed, from the
Sec. 19. Except in cases of impeachment, or as otherwise punishment the law inflicts for a crime he has committed.
provided in this Constitution, the President may grant It is the private, though official act of the executive
reprieves, commutations and pardons, and remit fines magistrate, delivered to the individual for whose benefit
and forfeitures, after conviction by final judgment. it is intended, and not communicated officially to the
Court. ... A pardon is a deed, to the validity of which
He shall also have the power to grant amnesty with the delivery is essential, and delivery is not complete without
concurrence of a majority of all the Members of the acceptance."
Congress.
At the time the antecedents of the present case took place,
Sec. 5. No pardon, amnesty, parole, or suspension of the pardoning power was governed by the 1973
sentence for violation of election laws, rules, and
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Constitution as amended in the April 7, 1981 plebiscite. disqualification from holding public employment but it
The pertinent provision reads: cannot go beyond that. To regain her former post as
The President may, except in cases of impeachment, grant assistant city treasurer, she must reapply and undergo
reprieves, commutations and pardons, remit fines and the usual procedure required for a new appointment.
forfeitures, and with the concurrence of the Batasang
Pambansa, grant amnesty.
- Risos-Vidal v Comelec, 747 SCRA
The 1981 amendments had deleted the earlier rule that 210 (2015)
clemency could be extended only upon final conviction,
implying that clemency could be given even before Facts:
conviction. Thus, petitioner's unconditional pardon was
granted even as her appeal was pending in the High Sandiganbayan convicted Joseph Ejercito Estrada, a
Court. It is worth mentioning that under the 1987 former President of the Republic of the Philippines, for
Constitution, the former limitation of final conviction was the crime of plunder. He was sentence to suffer the
restored. But be that as it may, it is our view that in the penalty of Reclusion Perpetua and the accessory penalties
present case, it is not material when the pardon was of civil interdiction during the period of sentence and
bestowed, whether before or after conviction, for the perpetual absolute disqualification. Subsequently, former
result would still be the same. Having accepted the President Gloria Arroyo extended executive clemency, by
pardon, petitioner is deemed to have abandoned her way of pardon, to former President Estrada. Former
appeal and her unreversed conviction by the President Estrada received and accepted the pardon.
Sandiganbayan assumed the character of finality.
In 2012, Estrada filed his COC for the position of Mayor
While a pardon has generally been regarded as blotting of Manila. Risos-Vidal filed a Petition for Disqualification
out the existence of guilt so that in the eye of the law the against Estrada before the COMELEC arguing that
offender is as innocent as though he never committed the Estrada was disqualified to run because of the
offense, it does not operate for all purposes. The very disqualification [his prior conviction] under the Local
essence of a pardon is forgiveness or remission of guilt. Government Code and in the Omnibus Election Code.
Pardon implies guilt. It does not erase the fact of the The COMELEC Second Division dismissed the petition
commission of the crime and the conviction thereof. It ruling that Estrada’s right to seek public office has been
does not wash out the moral stain. It involves forgiveness effectively restored by the pardon vested upon him by
and not forgetfulness. former President Gloria M. Arroyo. The MR was also
denied. Hence, the petition before the SC. Risos-Vidal
A pardon looks to the future. It is not retrospective. It argues that the pardon granted to former President
makes no amends for the past. It affords no relief for what Estrada was conditional as evidenced by the latter’s
has been suffered by the offender. It does not impose express acceptance thereof. The "acceptance," she claims,
upon the government any obligation to make reparation is an indication of the conditional natureof the pardon,
for what has been suffered. "Since the offense has been with the condition being embodied in the third Whereas
established by judicial proceedings, that which has been Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito
done or suffered while they were in force is presumed to Estrada has publicly committed to no longer seek any
have been rightfully done and justly suffered, and no elective position or office." She explains that the
satisfaction for it can be required." This would explain aforementioned commitment was what impelled former
why petitioner, though pardoned, cannot be entitled to President Arroyo to pardon former President Estrada,
receive backpay for lost earnings and benefits. without it, the clemency would not have been extended.
And any breach thereof, that is, whenformer President
Pardon does not ipso facto restore a convicted felon to Estrada filed his Certificate of Candidacy for President
public office necessarily relinquished or forfeited by and Mayor of the City of Manila, he breached the
reason of the conviction although such pardon condition of the pardon; hence, "he ought to be
undoubtedly restores his eligibility for appointment to recommitted to prison to serve the unexpired portion of
that office. his sentence and disqualifies him as a candidate for the
mayoralty [position] of Manila." Also, she avers that it is
The absolute disqualification or ineligibility from public not enough that a pardon makes a general statement that
office forms part of the punishment prescribed by the such pardon carries with it the restoration of civil and
Revised Penal Code for estafa thru falsification of public political rights. By virtue of Articles 36 and 41, a pardon
documents. It is clear from the authorities referred to that restoring civil and political rights without categorically
when her guilt and punishment were expunged by her making mention what specific civil and political rights are
pardon, this particular disability was likewise removed. restored "shall not work to restore the right to hold public
Henceforth, petitioner may apply for reappointment to office, or the right of suffrage; nor shall it remit the
the office which was forfeited by reason of her conviction. accessory penalties of civil interdiction and perpetual
And in considering her qualifications and suitability for absolute disqualification for the principal penalties of
the public post, the facts constituting her offense must be reclusion perpetua and reclusion temporal.
and should be evaluated and taken into account to
determine ultimately whether she can once again be Issue:
entrusted with public funds. Stated differently, the
pardon granted to petitioner has resulted in removing her
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Whether or not former President Estrada is qualified to In this jurisdiction, the right toseek public elective office
vote and be voted for in public office as a result of the is recognized by law as falling under the whole gamut of
pardon granted to him by former President Arroyo? civil and political rights.
Held: The third preambular clause of the pardon did not

operate to make the pardon conditional.
Yes. Former President Estrada was granted an absolute
pardon that fully restored all his civil and political rights, Contrary to RisosVidal’s declaration, the third
which naturally includes the right to seek public elective preambular clause of the pardon, i.e., "[w]hereas, Joseph
office, the focal point of this controversy. The wording of Ejercito Estrada has publicly committed to no longer seek
the pardon extended to former President Estrada is any elective position or office," neither makes the pardon
complete, unambiguous, and unqualified. It is likewise conditional, nor militate against the conclusion that
unfettered by Articles 36 and 41 of the Revised Penal former President Estrada’s rights to suffrage and to seek
Code. The only reasonable, objective, and constitutional public elective office have been restored.
interpretation of the language of the pardon is that the
same in fact conforms to Articles 36 and 41 of the Revised This is especially true as the pardon itself does not
Penal Code. explicitly impose a condition or limitation, considering
the unqualified use of the term "civil and political rights"
The pardoning power of the President cannot be limited as being restored. Jurisprudence educates that a preamble
by legislative action. This doctrine of nondiminution or is not an essential part of an act as it is an introductory or
nonimpairment of the President’s power of pardon by preparatory clause that explains the reasons for the
acts of Congress, specifically through legislation, was enactment, usually introduced by the word "whereas."
strongly adhered to by an overwhelming majority of the Whereas clauses do not form part of a statute because,
framers of the 1987 Constitution when they flatly rejected strictly speaking, they are not part of the operative
a proposal to carve out an exception from the pardoning language of the statute. In this case, the whereas clause at
power of the President in the form of "offenses involving issue is not an integral part of the decree of the pardon,
graft and corruption" that would be enumerated and and therefore, does not by itself alone operate to make the
defined by Congress through the enactment of a law. pardon conditional or to make its effectivity contingent
upon the fulfilment of the aforementioned commitment
Articles 36 and 41 of the Revised Penal Code cannot, in nor to limit the scope of the pardon.
any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon persons b. Forms of executive clemency
convicted of violating penal statutes.
Reprieves –
The Court cannot subscribe to RisosVidal’s Commutations –
interpretation that the said Articles contain specific Parole –
textual commands which must be strictly followed in Probation –
order to free the beneficiary of presidential grace from the
disqualifications specifically prescribed by them. The
phrase in the presidential pardon at issue which declares 6. Borrowing Power
that former President Estrada "is hereby restored to his
civil and political rights" substantially complies with the The President may contract or guarantee foreign loans on
requirement of express restoration. behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board, and subject to such
A close scrutiny of the text of the pardon extended to limitations as may be provided by law. The Monetary
former President Estrada shows that both the principal Board shall, within thirty days from the end of every
penalty of reclusion perpetua and its accessory penalties quarter of the calendar year, submit to the Congress a
are included in the pardon. The first sentence refers to the complete report of its decisions on applications for loans
executive clemency extended to former President Estrada to be contracted or guaranteed by the Government or
who was convicted by the Sandiganbayan of plunder and government-owned and controlled corporations which
imposed a penalty of reclusion perpetua. The latter is the would have the effect of increasing the foreign debt, and
principal penalty pardoned which relieved him of containing other matters as may be provided by law.
imprisonment. The sentence that followed, which states
that "(h)e is hereby restored to his civil and political 7. Diplomatic Power
rights," expressly remitted the accessory penalties that
attached to the principal penalty of reclusion perpetua. Cases:
Hence, even if we apply Articles 36 and 41 of the Revised - Saguisag v Ochoa, Jr. GR 212426 and
Penal Code, it is indubitable from the textof the pardon 212444, Jan 12, 2016
that the accessory penalties of civil interdiction and
perpetual absolute disqualification were expressly Main Issue: Can the President enter into the Enhanced
remitted together with the principal penalty of reclusion Defense Cooperation Agreement (EDCA) between RP
perpetua. and US without the concurrence of Senate?
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Petitioners: EDCA is required to be in a treaty and History of US Military Base in the Philippines (to explain
therefore there is a need for Senate concurrence. why the VFA already allowed entry of military troops in
the RP):
Held:
(1) 1947 Military Base Agreement - The Senate concurred
The President had the choice to enter into EDCA by way on the premise of "mutuality of security interest," which
of an executive agreement or a treaty. No court can tell provided for the presence and operation of 23 U.S.
the President to desist from choosing an executive military bases in the Philippines for 99 years or until the
agreement over a treaty to embody an international year 2046.
agreement, unless the case falls squarely within Article XIII,
Section 25. Ø Ramos-Rusk Agreement of 1966 – reduced the
term of the treaty from 99 years to a total of 44
Does EDCA fall under Section 25? No. years or until 1991.
Sec. 25. After the expiration in 1991 of the Agreement (2) Military Defense Treaty (MDT) of 1951 - Concurred in
between the Republic of the Philippines and the United by both the Philippine and the U.S. Senates, the treaty has
States of America concerning Military Bases, foreign two main features: first, it allowed for mutual assistance
military bases, troops, or facilities shall not be allowed in in maintaining and developing their individual and
the Philippines except under a treaty duly concurred in collective capacities to resist an armed attack;
by the Senate and, when the Congress so requires, ratified and second, it provided for their mutual self-defense in the
by a majority of the votes cast by the people in a national event of an armed attack against the territory of either
referendum held for that purpose, and recognized as a party.
treaty by the other contracting State.
(3) 16 September 1991 – The Philippine Senate rejected the
Article XIII, Section 25 applies only to a proposed renewal of the 1947 MBA.
agreement between our government and a foreign
government, whereby military bases, troops, or facilities (4) 1999 Visiting Forces Agreement (VFA) – revived the
of such foreign government would be "allowed" or would military arrangements between RP and US.
"gain entry" in Philippine territory.
Ø Reaffirmation of the obligations under MDT.
Note that the provision "shall not be allowed" is a Ø VFA has laid down the regulatory mechanism for
negative injunction. This wording signifies that the the treatment of U.S. military and civilian
President is not authorized by law to allow foreign personnel visiting the country. It contains
military bases, troops, or facilities to enter the Philippines, provisions on the entry and departure of U.S.
except under a treaty concurred in by the Senate. Hence, personnel; the purpose, extent, and limitations of
the constitutionally restricted authority pertains to the their activities; criminal and disciplinary
entry of the bases, troops, or facilities, and not to the jurisdiction; the waiver of certain claims; the
activities to be done after entry. importation and exportation of equipment,
materials, supplies, and other pieces of property
It is evident that the constitutional restriction refers solely owned by the U.S. government; and the
to the initial entry of the foreign military bases, troops, or movement of U.S. military vehicles, vessels, and
facilities. Once entry is authorized, the subsequent acts aircraft into and within the country.
are thereafter subject only to the limitations provided by Ø Philippine Senate concurred in the first VFA on
the rest of the Constitution and Philippine law, and not to 27 May 1999.
the Section 25 requirement of validity through a treaty.
(5) January 2002 - U.S. military and civilian personnel
The admission and presence of U.S. military and civilian started arriving in Mindanao to take part in joint military
personnel in Philippine territory are already allowed exercises with their Filipino counterparts.
under the VFA, the treaty supposedly being implemented Called Balikatan, these exercises involved trainings aimed
by EDCA. What EDCA has effectively done, in fact, is at simulating joint military maneuvers pursuant to the
merely provide the mechanism to identify the locations in MDT.
which U.S. personnel may perform allowed activities
pursuant to the VFA. As the implementing agreement, it (6) 2014 EDCA - authorizes the U.S. military forces to
regulates and limits the presence of U.S. personnel in the have access to and conduct activities within certain
country. "Agreed Locations" in the country.
Ø President Benigno S. Aquino III ratified EDCA on
The President may enter into an executive agreement on 6 June 2014.
foreign military bases, troops, or facilities, if (a) it is not
the instrument that allows the presence of foreign I. The role of the President as the executor of the law
military bases, troops, or facilities; or (b) it merely aims to includes the duty to defend the State, for which purpose
implement an existing law or treaty. he may use that power in the conduct of foreign
relations.
Discussion:
AB Page 39 of 69
In light of this constitutional duty, it is the President's entry of the bases, troops, or facilities, and not to the
prerogative to do whatever is legal and necessary for activities to be done after entry.
Philippine defense interests. It is no coincidence that the
constitutional provision on the faithful execution clause It is evident that the constitutional restriction refers solely
was followed by that on the President's commander-in- to the initial entry of the foreign military bases, troops, or
chief powers, which are specifically granted during facilities. Once entry is authorized, the subsequent acts
extraordinary events of lawless violence, invasion, or are thereafter subject only to the limitations provided by
rebellion. And this duty of defending the country is the rest of the Constitution and Philippine law, and not to
unceasing, even in times when there is no state of lawlesss the Section 25 requirement of validity through a treaty.
violence, invasion, or rebellion. At such times, the
President has full powers to ensure the faithful execution Executive agreements may cover the matter of foreign
of the laws. military forces if it merely involves detail adjustments
(EDCA merely involves "adjustments in detail" in the
It would therefore be remiss for the President and implementation of the MDT and the VFA).
repugnant to the faithful-execution clause of the
Constitution to do nothing when the call of the moment III. Treaty vs. Executive Agreement
requires increasing the military's defensive capabilities,
which could include forging alliances with states that From the viewpoint of International Law:
hold a common interest with the Philippines or bringing The distinction between a treaty and an international
an international suit against an offending state. agreement or even an executive agreement is irrelevant
for purposes of determining international rights and
II. Limitation on the President's dual role as defender of obligations.
the State and as sole authority in foreign relations.
From the domestic setting:
Despite the President's roles as defender of the State and First, executive agreements must remain traceable to an
sole authority in foreign relations, the 1987 Constitution express or implied authorization under the Constitution,
expressly limits his ability in instances when it involves statutes, or treaties. The absence of these precedents puts
the entry of foreign military bases, troops or facilities. The the validity and effectivity of executive agreements under
initial limitation is found in Section 21 of the provisions serious question for the main function of the Executive is
on the Executive Department: "No treaty or international to enforce the Constitution and the laws enacted by the
agreement shall be valid and effective unless concurred Legislature, not to defeat or interfere in the performance
in by at least two-thirds of all the Members of the Senate." of these rules. In turn, executive agreements cannot create
The specific limitation is given by Section 25 of the new international obligations that are not expressly
Transitory Provisions, the full text of which reads as allowed or reasonably implied in the law they purport to
follows: implement.
Sec. 25. After the expiration in 1991 of the Agreement Second, treaties are, by their very nature, considered
between the Republic of the Philippines and the United superior to executive agreements. Treaties are products of
States of America concerning Military Bases, foreign the acts of the Executive and the Senate unlike executive
military bases, troops, or facilities shall not be allowed in agreements, which are solely executive actions. Because
the Philippines except under a treaty duly concurred in of legislative participation through the Senate, a treaty is
by the Senate and, when the Congress so requires, ratified regarded as being on the same level as a statute. If there
by a majority of the votes cast by the people in a national is an irreconcilable conflict, a later law or treaty takes
referendum held for that purpose, and recognized as a precedence over one that is prior. An executive
treaty by the other contracting State. agreement is treated differently. Executive agreements
that are inconsistent with either a law or a treaty are
The President, however, may enter into an executive considered ineffective. Both types of international
agreement on foreign military bases, troops, or facilities, agreement are nevertheless subject to the supremacy of
if (a) it is not the instrument that allows the presence of the Constitution.
foreign military bases, troops, or facilities; or (b) it merely
aims to implement an existing law or treaty. IV. Guidelines
Article XIII, Section 25 applies only to a proposed 1. Section 25, Article XVIII of the Constitution, contains
agreement between our government and a foreign stringent requirements that must be fulfilled by the
government, whereby military bases, troops, or facilities international agreement allowing the presence of foreign
of such foreign government would be "allowed" or would military bases, troops, or facilities in the Philippines: (a)
"gain entry" in Philippine territory. the agreement must be in the form of a treaty, and (b) it
must be duly concurred in by the Senate.
Note that the provision "shall not be allowed" is a
negative injunction. This wording signifies that the 2. If the agreement is not covered by the above situation,
President is not authorized by law to allow foreign then the President may choose the form of the agreement
military bases, troops, or facilities to enter the Philippines, (i.e., either an executive agreement or a treaty), provided
except under a treaty concurred in by the Senate. Hence, that the agreement dealing with foreign military bases,
the constitutionally restricted authority pertains to the
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troops, or facilities is not the principal agreement that first (1) Section 25, Article XVIII.
allows their entry or presence in the Philippines.
The 1987 Philippine Constitution contains two provisions
3. The executive agreement must not go beyond the requiring the concurrence of the Senate on treaties or
parameters, limitations, and standards set by the law international agreements. Section 21, Article VII, which
and/or treaty that the former purports to implement; and herein respondents invoke, reads:
must not unduly expand the international obligation No treaty or international agreement shall be valid and
expressly mentioned or necessarily implied in the law or effective unless concurred in by at least two-thirds of all
treaty. the Members of the Senate.
4. The executive agreement must be consistent with the Section 25, Article XVIII, provides:
Constitution, as well as with existing laws and treaties. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of
V. Three legal standards to allow foreign military bases, America concerning Military Bases, foreign military
troops, or facilities in the Philippines bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by
1. Independence from foreign control; the senate and, when the Congress so requires, ratified by
2. Sovereignty and applicable law; a majority of the votes cast by the people in a national
3. National security and territorial integrity. referendum held for that purpose, and recognized as a
treaty by the other contracting State.
- Bayan v Executive Secretary, GR
138570, Oct 10, 2000 Section 21, Article VII deals with treatise or international
Facts: agreements in general, in which case, the concurrence of
at least twothirds (2/3) of all the Members of the Senate
The Philippines entered into a Visiting Forces Agreement is required to make the subject treaty, or international
(VFA) with the United States. The VFA was approved by agreement, valid and binding on the part of the
President Ramos and subsequently, President Estrada Philippines. This provision lays down the general rule on
also ratified the VFA. The VFA was transmitted to the treatise or international agreements and applies to any
Senate of the Philippines. It was concurred in by the form of treaty with a wide variety of subject matter, such
Senate by a 2/3 votes of its members. The VFA, which as, but not limited to, extradition or tax treatise or those
consists of a Preamble and nine (9) Articles, provides for economic in nature. All treaties or international
the mechanism for regulating the circumstances and agreements entered into by the Philippines, regardless of
conditions under which US Armed Forces and defense subject matter, coverage, or particular designation or
personnel may be present in the Philippines appellation, requires the concurrence of the Senate to be
valid and effective.
Several petitions were filed to assail the constitutionality
of the VFA. One focal point of inquiry in this controversy In contrast, Section 25, Article XVIII is a special provision
is the determination of which provision of the that applies to treaties which involve the presence of
Constitution applies, with regard to the exercise by the foreign military bases, troops or facilities in the
senate of its constitutional power to concur with the VFA. Philippines. Under this provision, the concurrence of the
Petitioners argue that Section 25, Article XVIII is Senate is only one of the requisites to render compliance
applicable considering that the VFA has for its subject the with the constitutional requirements and to consider the
presence of foreign military troops in the Philippines. agreement binding on the Philippines. Section 25, Article
Respondents, on the contrary, maintain that Section 21, XVIII further requires that foreign military bases, troops,
Article VII should apply inasmuch as the VFA is not a or facilities may be allowed in the Philippines only by
basing arrangement but an agreement which involves virtue of a treaty duly concurred in by the Senate, ratified
merely the temporary visits of United States personnel by a majority of the votes cast in a national referendum
engaged in joint military exercises. held for that purpose if so required by Congress, and
recognized as such by the other contracting state.
Petitioners also contend that the phrase recognized as a
treaty, embodied in section 25, Article XVIII, means that It is our considered view that both constitutional
the VFA should have the advice and consent of the United provisions, far from contradicting each other, actually
States Senate pursuant to its own constitutional process, share some common ground. These constitutional
and that it should not be considered merely an executive provisions both embody phrases in the negative and thus,
agreement by the United States. are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause No treaty x x
Issue: x, and Section 25 contains the phrase shall not be allowed.
Additionally, in both instances, the concurrence of the
(1) Which of the two provisions should apply on VFA? Senate is indispensable to render the treaty or
(2) Whether or not the VFA should have the advice and international agreement valid and effective.
consent of the United States Senate?
On the whole, the VFA is an agreement which defines the
Held: treatment of United States troops and personnel visiting
the Philippines. It provides for the guidelines to govern
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such visits of military personnel, and further defines the Discussion:

rights of the United States and the Philippine government
in the matter of criminal jurisdiction, movement of vessel A treaty, as defined by the Vienna Convention on the Law
and aircraft, importation and exportation of equipment, of Treaties, is an international instrument concluded
materials and supplies. between States in written form and governed by
international law, whether embodied in a single
Undoubtedly, Section 25, Article XVIII, which specifically instrument or in two or more related instruments, and
deals with treaties involving foreign military bases, whatever its particular designation. There are many other
troops, or facilities, should apply in the instant case. To a terms used for a treaty or international agreement, some
certain extent and in a limited sense, however, the of which are: act, protocol, agreement, compromis d
provisions of section 21, Article VII will find applicability arbitrage, concordat, convention, declaration, exchange of
with regard to the issue and for the sole purpose of notes, pact, statute, charter and modus vivendi. All writers,
determining the number of votes required to obtain the from Hugo Grotius onward, have pointed out that the
valid concurrence of the Senate, as will be further names or titles of international agreements included
discussed hereunder. under the general term treaty have little or no legal
significance. Certain terms are useful, but they furnish
Moreover, it is specious to argue that Section 25, Article little more than mere description.
XVIII is inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure for In international law, there is no difference between
the establishment of a military base. On this score, the treaties and executive agreements in their binding effect
Constitution makes no distinction between transient and upon states concerned, as long as the negotiating
permanent. Certainly, we find nothing in Section 25, functionaries have remained within their powers.
Article XVIII that requires foreign troops or facilities to be International law continues to make no distinction
stationed or placed permanently in the Philippines. between treaties and executive agreements: they are
equally binding obligations upon nations.
The provision contemplates three different situations a
military treaty the subject of which could be either (a) Ratification is generally held to be an executive act,
foreign bases, (b) foreign troops, or (c) foreign facilities undertaken by the head of the state or of the government,
any of the three standing alone places it under the as the case may be, through which the formal acceptance
coverage of Section 25, Article XVIII. of the treaty is proclaimed. A State may provide in its
domestic legislation the process of ratification of a treaty.
Section 25, Article XVIII disallows foreign military bases, The consent of the State to be bound by a treaty is
troops, or facilities in the country, unless the following expressed by ratification when: (a) the treaty provides for
conditions are sufficiently met, viz: (a) it must be under a such ratification, (b) it is otherwise established that the
treaty; (b) the treaty must be duly concurred in by the negotiating States agreed that ratification should be
Senate and, when so required by congress, ratified by a required, (c) the representative of the State has signed the
majority of the votes cast by the people in a national treaty subject to ratification, or (d) the intention of the
referendum; and (c) recognized as a treaty by the other State to sign the treaty subject to ratification appears from
contracting state. The concurrence requirement under the full powers of its representative, or was expressed
Section 25, Article XVIII must be construed in relation to during the negotiation. In our jurisdiction, the power to
the provisions of Section 21, Article VII. In a more ratify is vested in the President and not, as commonly
particular language, the concurrence of the Senate believed, in the legislature. The role of the Senate is
contemplated under Section 25, Article XVIII means that limited only to giving or withholding its consent, or
at least twothirds of all the members of the Senate concurrence, to the ratification.
favorably vote to concur with the treatythe VFA in the
instant case. By constitutional fiat and by the intrinsic nature of his
office, the President, as head of State, is the sole organ and
There is no dispute as to the presence of the first two authority in the external affairs of the country. In many
requisites in the case of the VFA. ways, the President is the chief architect of the nations
foreign policy; his dominance in the field of foreign
(2) No. The phrase recognized as a treaty means that the relations is (then) conceded. Wielding vast powers an
other contracting party accepts or acknowledges the influence, his conduct in the external affairs of the nation,
agreement as a treaty. To require the other contracting as Jefferson describes, is executive altogether."
state, the United States of America in this case, to submit
the VFA to the United States Senate for concurrence
pursuant to its Constitution, is to accord strict meaning to 8. Budgetary Power
the phrase. Moreover, it is inconsequential whether the
United States treats the VFA only as an executive The President shall submit to the Congress within thirty
agreement because, under international law, an executive days from the opening of every regular session, as the
agreement is as binding as a treaty. To be sure, as long as basis of the general appropriations bill, a budget of
the VFA possesses the elements of an agreement under expenditures and sources of financing, including receipts
international law, the said agreement is to be taken from existing and proposed revenue measures.
equally as a treaty.
9. Informing Power
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JUDICIAL POWER
The President shall address the Congress at the opening
of its regular session. He may also appear before it at any 1. Adjudicatory Powers
other time.
Adjudicatory powers – to settle disputes and
10. Other Powers
controversies by interpreting the applicable law.
a. Call Congress to a special session
b. Power to approve or veto bills
What are these disputes and controversies can they settle?
c. To consent to deputation of government i. those involving rights legally enforceable and demandable –
personnel by the Commission on
the right must be derived from law. Example: right of a
elections wife to be supported by the husband; right of support of
d. To discipline such deputies children by the parents. Example of a right which is non-
e. By delegation from Congress, emergency
demandable? Plus 5 for perfect attendance because it is
powers and tariff powers not derived from law.
f. General supervision over local
governments and autonomous regional ii. disputes affecting ambassadors, public ministers and
governments consuls.
iii. sole judge in all questions involving elections, qualifications

The Supreme Court and returns of the President and Vice President.
COMPOSITION Prior to the 1987 Constitution, there was this law which
has not yet been repealed creating the Presidential
A Chief justice and 14 Associate Justices. It may sit en
Electoral Tribunal. And it says there that it should be the
banc or in its discretion, in divisions of three, five or seven
members. Any vacancy shall be filled within 90 days from sole judge for President and VP. It was questioned in the
case of Macalintal v PET. The SC held that the SC and PET
occurrence thereof.
are one and the same. The chairman of the PET is the
Chief Justice and the members are the Associate Justices
ADDITIONAL FUNCTIONS AND POWERS FOR so it is also the SC. The change in the name is only a
THE CHIEF JUSTICE change in the nomenclature in order to emphasize the
a. Presiding officer in the Impeachment court, singularity and importance of their functions as PET. But
Article XI, Section 3 (6) it is the same SC. What does that imply? That once PET
b. Chair, Judicial and Bar Council, Article VIII, has decided on it, that is final and executory.
Section 8
c. Chair, Presidential Electoral Tribunal, Article
VII, Section 4 2. Judicial Review – power to test the validity of
d. Supervisory powers over all Justices and the acts of any branch (see discussion on
Judges, Article VIII, Section 6 Judicial Review)
e. Control & supervision over all officials &
employees of Judiciary, Article VIII, Section 6 3. Incidental Powers – powers necessary to
discharge its functions
SAFEGUARDS OF JUDICIAL INDEPENDENCE a. Cite contempt
b. Issue subpoena/orders
1) The SC is a constitutional body; it may not be c. Grant/deny motions
abolished by the legislature; d. Order arrest
2) The members of the SC are removable only by
impeachment; 4. Rule-Making Powers -
3) The SC may not be deprived of its minimum
original and appellate jurisdiction; appellate RULE-MAKING POWERS – to promulgate rules
jurisdiction may not be increased without its concerning:
advice and concurrence; a. The protection and enforcement of
4) The SC has administrative supervision of all constitutional rights;
inferior courts and personnel; i. Writ of Amparo – remedy available to
5) The SC has the exclusive power to discipline any person whose right to life, liberty
judges/justices of inferior courts; and security is violated or threatened
6) The members of the Judiciary have security of with violation by an unlawful act or
tenure; omission of a public official or employee,
7) The members of the Judiciary may not be or of a private individual or entity.
designated to any agency performing quasi- ii. Writ of Habeas Data – remedy available
judicial or administrative functions; to any person whose right to privacy in
8) Salaries of judges may not be reduced; the life, liberty or security is violated or
Judiciary enjoys fiscal autonomy. threatened with violation by an unlawful
act or omission of a public official or
employee, or of a private individual or
AB Page 43 of 69
entity engaged in the gathering, b. Pleading, practice, procedure in all courts;

collecting or storing of data or c. Admission to the practice of law
information regarding the person, d. IBP
family, honor and correspondence of the e. Legal assistance to the underprivileged
aggrieved party.
iii. Writ of Kalikasan – remedy available to 5. Auxiliary Administrative Powers
a natural or juridical person, entity
authorized by law, people’s a. Detailing of lower courts judges
organization, non-governmental b. Change of venue or place of trial
organization, or any public interest c. Power of appointment (officials and employees
group accredited by or registered with of the judiciary)
any government agency, on behalf of d. Administrative supervision of all courts and
persons whose right to a balanced and court personnel
healthful ecology is violated, or e. Fiscal autonomy
threatened with violation by an unlawful - In order to maintain the independence of
act of omission of a public official or the Judiciary.
employee, or private individual or entity • The Judiciary shall enjoy fiscal autonomy.
involving environmental damage of such Appropriations for the Judiciary may not be
magnitude as to prejudice the life, health reduced by the legislature below the amount
or property of inhabitants in two or more appropriated for the previous year and, after
cities or provinces. approval, shall be automatically and
iv. Writ of Continuing Mandamus - When regularly released. (Art. VIII, Sec. 3)
any agency or instrumentality of the f. Annual report
government or officer thereof unlawfully g. Supervision of JBC
neglects the performance of an act which
the law specifically enjoins as a duty
resulting from an office, trust or station
(1) A Judicial and Bar Council is hereby created under the
in connection with the enforcement or
violation of an environmental law rule or supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and
regulation or a right therein, or
a representative of the Congress as ex officio Members, a
unlawfully excludes another from the
representative of the Integrated Bar, a professor of law, a
use or enjoyment of such right and there
retired Member of the Supreme Court, and a
is no other plain, speedy and adequate
representative of the private sector.
remedy in the ordinary course of law, the
person aggrieved thereby may file a
(2) The regular Members of the Council shall be
verified petition in the proper court,
appointed by the President for a term of four years with
alleging the facts with certainty,
the consent of the Commission on Appointments. Of the
attaching thereto supporting evidence,
Members first appointed, the representative of the
specifying that the petition concerns an
Integrated Bar shall serve for four years, the professor of
environmental law, rule or regulation,
and praying that judgment be rendered law for three years, the retired Justice for two years, and
the representative of the private sector for one year.
commanding the respondent to do an act
or series of acts until the judgment is
(3) The Clerk of the Supreme Court shall be the Secretary
fully satisfied, and to pay damages
ex officio of the Council and shall keep a record of its
sustained by the petitioner by reason of
proceedings.
the malicious neglect to perform the
duties of the respondent, under the law,
(4) The regular Members of the Council shall receive such
rules or regulations.
emoluments as may be determined by the Supreme
v. Strategic lawsuit against public
Court. The Supreme Court shall provide in its annual
participation (SLAPP) - A legal action
budget the appropriations for the Council.
filed to harass, vex, exert undue pressure
or stifle any legal recourse that any
(5) The Council shall have the principal function of
person, institution or the government
has taken or may take in the enforcement recommending appointees to the Judiciary. It may
of environmental laws, protection of the exercise such other functions and duties as the Supreme
environment or assertion of Court may assign to it.
environmental rights shall be treated as a
SLAPP. In a SLAPP filed against a person 6. Plenary Powers over the BAR
involved in the enforcement of
environmental laws, protection of the Bar – is the collectivity of all persons whose names
environment, or assertion of appear in the Roll of Attorney of the SC.
environmental rights, the defendant may
file an answer interposing as a defense 7. Supervisory Powers over the IBP
that the case is a SLAPP
AB Page 44 of 69
IBP – national official organization of all lawyers in the 4. institutionalize a management climate
Philippines. It is created by law, RA 6397, pursuant to Art. conducive to public accountability. It shall
VIII, Sec. 5(5) of the Constitution. The rules= governing submit to the President and the Congress an
the IBP is made by the SC, Rule 139-A. annual report on its personnel programs.
Why the need to integrate? The Commission on Audit (COA) is the central auditing
a. To elevate the standard of the legal agency of the government.
profession; Functions:
b. To improve the administration of justice; 1. to examine and audit all forms of government
c. To enable to bar to discharge its public revenues;
responsibility more effectively. 2. to examine and audit all forms of government
expenses;
3. to settle government accounts;
The judicial power shall be vested in one Supreme Court 4. to promulgate accounting and auditing rules
and in such lower courts as may be established by law. (including those for the prevention and
disallowance of expenses which are irregular,
Implications: unnecessary, excessive, extravagant and
1. Judicial power is also vested in such lower courts but unconscionable expenditures)
these lower courts are created by law. The Supreme Court 5. Quasi-judicial function: to decide
is created by the Constitution. The SC does not owe its administrative cases involving expenditures of
creation to Congress, unlike other courts. Therefore, the public funds.
jurisdiction of the SC cannot be decreased by Congress. It
can be increased but upon the advice and concurrence of If the government agency has internal auditing system,
the SC. COA has no power to pre-audit.
Pre-audit – examination of financial transactions before
The 1987 Constitution has prospective application. There the consumption of payment. The purpose of pre-audit
was a law enacted prior to the 1987 Constitution granting is to determine if the proposed expenditure complies
jurisdiction to the SC which is not found in the 1987 with the appropriation law, if there are sufficient funds
Constitution. That is still within the jurisdiction of the SC from the government, if the proposed expense is not
because the 1987 Constitution is not given retroactive unreasonable, extravagant, unconscionable or if the
effect. transaction is duly-approved by proper authorities.
2. There is only one Supreme Court. All other courts are Subject to post-audit:
lower than the SC. There can be no two SCs nor another 1. Constitutional bodies with fiscal autonomy;
court with equal power as that the SC. Otherwise, there 2. Autonomous colleges and state universities;
would be no end to controversy. So as far as issues and 3. Government-owned and controlled
controversies are concerned, the SC is the court of last corporations;
resort. 4. NGOs which receive subsidy or equity from the
government.
3. The SC’s main power is judicial power but judicial
power is also exercised by lower courts. What is judicial The COMELEC is the central election agency of the
power? It is the power to interpret laws. There must be an government.
applicable law to interpret. Under judicial power, there Function:
are three important powers. 1. To enforce election laws
a. Can declare a failure of election;
b. Can call for holding of special elections;
c. Can order manual recount of votes;
CONSTITUTIONAL COMMISSIONS AND OTHER d. Can deny due course and cancel certificate
CONSTITUTIONAL BODIES/AGENCIES of candidacy;
e. Can correct manifest errors in the election
returns or certificate of canvass;
A. CSC, COA, COMELEC, Article IX, A, B, C, D f. Decide for the annulment of plebiscite
results.
The Civil Service Commission, as the central personnel
agency of the Government, shall: 2. Decide administrative questions affecting
1. establish a career service and adopt measures to elections EXCEPT the right to vote. The
promote morale, efficiency, integrity, COMELEC has no jurisdiction if the issue is the
responsiveness, progressiveness, and courtesy right to vote.
in the civil service. a. Can file a petition for inclusion or exclusion
2. It shall strengthen the merit and rewards of voters
system, b. Can prosecute election law violators;
3. integrate all human resources development c. Can recommend pardon, amnesty, parole or
programs for all levels and ranks, and suspension of service of sentence for
violation of election laws (one of the
AB Page 45 of 69
limitations of the President’s power to the votes of the En Banc, the decision of the
pardon) COMELEC Division is affirmed.
• No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, • If the decision of the COMELEC Division is
and regulations shall be granted by the in the exercise of its original jurisdiction, it
President without the favorable goes to the COMELEC En Banc by MR. In
recommendation of the Commission. case of tie, there would be a re-hearing of the
case to break the tie. In case the votes remain
3. Can deputize election law enforcement equal, the decision of the COMELEC
agencies and recommend their removal Division is affirmed (the MR is denied). The
4. Can register political parties, organizations and Supreme Court will not entertain cases
coalitions coming from COMELEC En Banc unless
5. Can accredit citizens-arms (NAMFREL) there is a re-hearing of the case.
6. Can regulate public utilities and media of
information • Legal basis: Section 6. Procedure if Opinion
7. Quasi-judicial function: Decide election is Equally Divided. - When the Commission
contests and cases en banc is equally divided in opinion, or the
necessary majority cannot be had, the case
shall be reheard, and if on rehearing no
• Election Contest • Jurisdiction decision is reached, the action or proceeding
• Brgy. Officials • MTC shall be dismissed if originally commenced
in the Commission; in appealed cases, the
• Municipal officials • RTC judgment or order appealed from shall stand
• Regional • COMELEC affirmed; and in all incidental matters, the
• Provincial petition or motion shall be denied.
• City Officials
• Members of House • HRET PROCESS OF LEGISLATION
of Representatives
• Senators • SET Requirements as to bills:
1. Only one subject to be expressed in the title
• President and Vice • PET
thereof.
President
2. Appropriation, revenue or tariff bills, bills
authorizing increase in public debt, bills of local
The COMELEC has administrative functions, application, and private bills shall originate
quasi-judicial functions and quasi-legislative exclusively in the House of Representatives.
functions.
How does a bill become a law?
• En Banc • Division
Exercise of 1. All election [Sec. 26] No bill passed by either House shall become a
administrative cases law unless it has passed three readings on separate days,
powers including and printed copies thereof in its final form have been
a. Violation pre- distributed to its Members three days before its passage,
of election proclamatio except when the President certifies to the necessity of its
laws n immediate enactment to meet a public calamity or
b. Correction controversie emergency. Upon the last reading of a bill, no amendment
of errors s; thereto shall be allowed, and the vote thereon shall be
from 2. Petition to taken immediately thereafter, and the yeas and nays
election cancel COC; entered in the Journal.
returns 3. Cases
(ER) to appealed First Reading: Only the title of the bill or resolution is
statement from read before the House. The presiding officer then refers
of votes RTC/MTC the bill to the proper committee for appropriate action.
(Board of After due consideration of the bill or resolution, the latter
Canvasser is returned to the body together with the committee’s
s) amendments, objections or recommendations. If the
report is favorable, the bill is calendared for second
• • reading. If the report is unfavorable, the matter shall be
laid on the table, unless the body as a whole decides
• If the decision of the MTC or RTC is affirmed otherwise.
by the COMELEC Division (in the exercise of
its appellate jurisdiction), it goes to the Second Reading: The bill or resolution is read in full
COMELEC En Banc by MR. In case of tie in before the floor, with such amendments as proposed by
the committee. A period of debate, discussion and
AB Page 46 of 69
amendment will ensue. Thereafter, a motion to close the for another 25

debate is made and a vote is taken on whether or not to years.
pass the bill on the basis of the amendments and Rules on Educational
discussion. The bill as amended and approved is printed agricultural Institutions
in final form and copies are distributed to the lands:
membership three days before its passage. Congress may
Citizens may increase Filipino
Third Reading: The bill or resolution is announced by its lease only < 500 equity
name and title on the floor and a vote is taken right away, ha. participation
with the yeas and nays entered into the journal.
Amendments are no longer allowed. Citizens may
acquire by
Three ways for a bill to become a law: purchase,
1. Upon approval by the President; homestead or
2. When the veto of the President is overridden by 2/3 grant only < 12
vote of all the members of both Houses; ha.
3. Upon failure of the President to vote on the bill and to Practice of Areas of
return it with his objections, to the House where it professions save Investment as
originated, within 30 days after the date of receipt. in cases Congress may
[Presidential inaction] provided by prescribe
law (Congress may
- Effectivity of laws, NCC, Article 2 prescribe a
higher
Laws shall take effect after fifteen days following the percentage)
completion of their publication either in the Official Small-scale Operation of
Gazette, or in a newspaper of general circulation in the utilization of public utilities
Philippines, unless it is otherwise provided. natural
resources, as Cannot be for
may be longer period
provided by than 50 years
law.
NATURAL RESOURCES Executive and
managing
NATIONALIZATION PRINCIPLE FOR NATURAL officers must be
RESOURCES
Filipino
REGALIAN DOCTRINE
Sec. 2, Art. XII
All lands of public domain, waters, minerals, coal, Note: The Constitution holds that private corporations or
petroleum, and other mineral oils, all forces of potential associations may not hold alienable lands of the public
energy, fisheries, forest or timber, wildlife, flora and domain except by lease, for a period of not exceeding 25
fauna, and other natural resources are owned by the State. years, renewable for not more than 25 years, and not to
With the exception of agricultural lands, all other natural exceed 1000 ha. In area, but the Constitution does not
resources shall not be alienated. … specify the capital requirements for such corporations.
NATIONALITY AND CITIZENSHIP REQUIREMENT A joint venture falls within the purview of an
PROVISIONS “ASSOCIATION” and must comply with the 60-40%
Filipino foreign capitalization requirement.
Filipino Filipino Filipino
Citizens, or Citizens or 60- Citizens, or 70- The 60% capital requirement applies to both the voting
100% Filipino 40 Filipino 30 Filipino control and the beneficial ownership of the public utility.
Corporattions Corporations Corporations Therefore, it shall apply uniformly, separately, and across
Use and Co-production, Engagement in the board to all classes of shares, regardless of
enjoyment of Joint venture, advertising nomenclature or category, comprising the capital of the
marine wealth, and Production Industry corporation.
exclusive to sharing
Filipino citizens. agreements Two test are employed to determine whether the
over natural Nationality Requirement was met:
resources.
1. Control Test – Filipino must own at least 60% of
the corporation’s capital. This test is generally
Agreements
used, however when there is doubt as to the
shall not exceed
beneficial ownership and control of the
a period of 25
corporation, it must be subject to the grandfather
years renewable
test.
AB Page 47 of 69
2. Grandfather Test – Where percentage of Filipino a. As to Parties. Only the President, in

equity in a corporation is computed by behalf of the State, may enter into these
attributing the nationality of the second or even agreements, and only with corporations.
subsequent tier of ownership to determine the b. As to Size of Activities. Only large-scale
nationality of the second or even subsequent tier exploration, development and utilization
of ownership to determine the nationality of the is allowed.
corporate shareholder. c. The natural resources subject of the
activities is restricted to minerals,
Note: If the Filipino has the voting power of the “specific petroleum, and other mineral oils, the
stock”, or the Filipino has the investment power over the intent being to limit service contracts to
“specific stock”, or both, then such Filipino is the those areas where Filipino capital may
beneficial owner of that specific stock. not be sufficient.
d. Consistency with the Provisions of
Being considered Filipino, that “specific stock” is then Statute. The FTAA(financial and
counted as part of the 60% Filipino ownership technical assistance agreements), must
requirement under the Constitution. be in accordance with the terms and
conditions provided by law.
The right to dividends, jus fruendi – aright emanating e. The FTAA must be based on real
from ownership of that specific stock necessarily accrues contributions to economic growth and
to its Filipino beneficial owner. general welfare of the country.
f. The FTAA must contain rudimentary
FILIPINO FIRST stipulations for the promotions of the
development and use of local scientific
Sec. 10, Art. XII
and technical resources.
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give g. Notification Requirement. The President
shall notify the Congress of every FTAA
preference to qualified Filipinos. The State shall regulate and
exercise authority over foreign investments within its national entered into within 30 days from its
jurisdiction and in accordance with its national goals and execution.
h. Scope of FTAA. Only for agreements
priorities.
involving either financial or technical
Such provision is per se enforceable and requires no assistance and does not include “service
contracts” and “management or other
further guidelines or implementing rules or laws for its
operation. forms of assistance”
Requisites for a valid service contract

The Constitution does not impose a policy of Filipino
1. A general law that will set standards or uniform
monopoly of the economic environment. It does not rule
out the entry of foreign investments, goods, and services. terms, conditions, and requirements
2. The president shall be the signatory for the
While it does not encourage their unlimited entry into the
country, it does not prohibit them either. In fact, it allows government
an exchange on the basis of equality and reciprocity, 3. Within 30 days of the executed agreement, the
President shall report it to Congress
frowning only on foreign competition that is unfair.
AMENDMENT AND REVISION OF THE
ECONOMIC ACTIVITIES CONSTITUTION
The State, being the owner of the natural resources is Sec. 1. Any amendment to, or revision of, this Constitution may
accorder the primary power and responsibility in the be proposed by:
exploration, development and utilization thereof. As (1) The Congress, upon a vote of three-fourths of all its
such it may undertake these activities through four Members; or
modes: (2) A constitutional convention.
1. The State may directly undertake such activities;
2. The State may enter into co-production, joint Sec. 2. Amendments to this Constitution may likewise be
venture or production-sharing agreements with directly proposed by the people through initiative upon a
Filipino citizens or qualified corporations; petition of at least twelve per centum of the total number of
3. Congress may, by law, allow small-scale registered voters, of which every legislative district must be
utilization of natural resources by Filipino represented by at least three per centum of the registered voters
citizens; therein. No amendment under this section shall be authorized
4. For the large-scale exploration, development and within five years following the ratification of this Constitution
utilization of minerals, petroleum and other nor oftener than once every five years thereafter.
mineral oils, the President may enter into
agreements with foreign-owned corporations The Congress shall provide for the implementation of the
involving technical or financial assistance subject exercise of this right.
to the following limitations:
AB Page 48 of 69
Sec. 3. The Congress may, by a vote of two-thirds of all its which 60 days nor
Members, call a constitutional convention, or by a majority vote every later than 90
of all its Members, submit to the electorate the question of legislativ days AFTER
calling such a convention. e district the
must be certification
Sec. 4. Any amendment to, or revision of, this Constitution represent by the
under Section 1 hereof shall be valid when ratified by a majority ed by at Commission
of the votes cast in a plebiscite which shall be held not earlier least 3% on Elections
than sixty days nor later than ninety days after the approval of of the of the
such amendment or revision. registered sufficiency of
voters the petition.
Any amendment under Section 2 hereof shall be valid when therein.
ratified by a majority of the votes cast in a plebiscite which shall REVISIONS Congress By a vote Ratified by a
be held not earlier than sixty days nor later than ninety days (as of ¾ of MAJORITY
after the certification by the Commission on Elections of the Constituen ALL its of the votes
sufficiency of the petition. t members cast in a
Assembly) plebiscite,
AMENDMENT VS. REVISION Constituti By a vote which shall
Amendment – refers to any alteration in the Constitution; onal of 2/3 of be held not
a piecemeal or isolated change in the Constitution Conventio ALL of its earlier than
involving a particular provision or certain provisions n members 60 days nor
thereof. or by a later the 90
MAJORIT days AFTER
Revision – total change involving a re-writing of the Y vote of the approval
entire instrument. ALL of its of such
members, revision.
BY PROPOSAL RATIFICATION submit to
the
AMENDMENTS
Congress By a vote Ratified by a
electorate
(as of ¾ of MAJORITY
the
Constituen ALL its of the votes
question
t members cast in a
of calling
Assembly) plebiscite,
such a
Constituti (1) By a which shall
conventio
onal vote of be held not
n.
Conventio 2/3 of earlier than
n ALL of its 60 days nor
Only Congress or a constitutional convention may
(Congress later than 90
propose revisions to the Constitution. A People’s
) days AFTER
the approval Initiative may propose only amendments to the
members;
Constitution.
or of such
amendment.
Doctrine of Proper Submission – the plebiscite must be
(2) By a
held not earlier than sixty days nor later than ninety days
MAJORIT
after the approval of the proposal by Congress or the
Y vote of
Constitutional Convention, or after the certification by the
ALL of its
COMELEC of the sufficiency of the petition.
members,
Purpose: To give the people sufficient and reasonable
submit to
time to study and discuss the proposed amendments.
the
electorate
The plebiscite may be held on the same day as the regular
the
elections. Piecemeal amendments are not allowed.
question
of calling
Cases:
such a
Santiago v Comelec, 270 SCRA 106 (1997)
conventio
Lambino v Comelec, 505 SCRA 160 (2006)
n.
Peoples’ A Petition Ratified by Is R.A. No. 6735 sufficient and adequate for purposes of
Initiative of at least MAJORITY amending the Constitution by way of People’s
12% of of the votes Initiative?
the total cast in a
Defensor-Santiago vs. COMELEC (1997): No.
number plebiscite Lambino vs. COMELEC (MR, 2006): Yes.
of which shall
registered be held not
voters, of earlier than
AB Page 49 of 69
International Law certain provisions of the treaty in their application to

q Sources of international law that State.
q Relationship with domestic law Grounds for Terminating a Treaty
1. Provisions of Internal Law regarding competence
to conclude treaties
2. Specific restrictions on authority to express
SOURCES OF INTERNATIONAL LAW consent of a state
1. Primary Sources 3. Error
a. Conventional International Law 4. Fraud
b. Customary International Law 5. Corruption of a representative of a state
c. General Principles of Law 6. Coercion of a representative
2. Subsidiary Sources 7. Coercion of a state by threat or use of force
a. Judicial Decisions 8. Treaties conflicting with Jus Cogens
b. Teachings of the most highly qualified 9. Termination or suspension of a treaty as a
publicist consequence of its breach
10. Supervening impossibility of performance
11. Fundamental change of circumstances
CONVENTIONAL INTERNATIONAL LAW
Treaty is an international agreement concluded between CUSTOMARY INTERNATIONAL LAW
states in written form and governed by international
law, whether embodied in a single instrument or in two General Practice Accepted as law.
or more related instruments and whatever its particular
designation. Elements:
1. State Practice – the practice must be consistent
Requisites: and general. Consistency requires substantial
1. Written Form uniformity and not necessarily complete
2. Between States uniformity in practice. Generality does not
3. Governed by International Law require universality.
2. Opinio Juris – belief on the part of states that a
Basic Principles of Treaties: particular practice is required by law, and not
1. The primary body of law governing treaties is the because of courtesy or political expendiency.
Vienna Convention on the Law of Treaties, which
is considered binding as Customary International Binding Effect:
Law. General Rule: Binding on all states
2. It is based on consent XPN: Pesistent Objector
a. Treaty obligation is based on consent. No
state may be bound by a treaty obligation GENERAL PRINCIPLES OF LAW
unless it has so consented. Those general principles in municipal law that may be
b. Consent is manifested by: Signature, appropriated to apply to the relations of states.
exchange of instruments, constituting a
treaty, ratification, acceptance, approval JUDICIAL DECISIONS
of accession, or by any other means if so
Includes decisions of international tribunals and those of
agreed.
municipal courts.
3. Pacta Sunt Servanda – every treaty in force is
binding upon the parties to it and must be
performed by them in good faith.
4. Generally not binding on third states RELATIONSHIP WITH DOMESTIC LAW
a. XPN: International Domestic Law
i. When the third party accepts a Law
provision establishing an Scope The conduct of Applies to a
obligation for that third party States and single country
ii. When the third party accepts a International or nation,
right provided for and exercises organizations, within a
such right in accordance with the their relations determined
conditions established in the with each other territory and its
treaty. and, in certain inhabitants
5. Treaties are non-retroactive circumstances,
their relations
Reservations to Treaties with persons
A reservation is a unilateral statement, however phrased natural or
or named, made by a State, when signing, ratifying, juridical
accepting, approving or acceding to a treaty, whereby it How Made Through Issued by a
purports to exclude or to modify the legal effect of consent, political
AB Page 50 of 69
adopted by superior for violation was manifest and concerned a rule of its internal
States as a observance law of fundamental importance.
common rule of
action *END*
Relations Regulated Issued by a
Regulated relations of political Labor Law
States as a superior for
common rule of observance q Basic principles
action q Existence of employer-employee relationship; tests
Sources Regulates Regulates q Termination of employment
relations of relations of q Requirements for valid labor-only contracting
States and other individuals q Rights of employees and of labor organizations;
international among membership in unions
persons themselves or q Management prerogative
with their own
States
q Illegal recruitment of overseas Filipino workers
Settlement of Deprived Consist mainly q Remedies (labor standards violations)
Disputes principally from of enactments
treaties, from the
international lawmaking
customs and authority of BASIC PRINCIPLES
general each state
principles of
Legal Basis
law
Responsibility Collective Generally 1. 1987 Constitution
for Wrongful responsibility entails
Acts because it individual Constitutional Mandates:
attaches directly responsibility in
to the State and case of breach Article II
not to its
nationals Section 9. The State shall promote a just and dynamic social
order that will ensure the prosperity and independence of the
How International Law becomes part of Philippine Law nation and free the people from poverty through policies that
1. Doctrine of Incorporation – the Philippines provide adequate social services, promote full employment, a
adopts the generally accepted principles of rising standard of living, and an improved quality of life for all.
international law as part of the law of the land.
They are deemed as national law whether or not Section 10. The State shall promote social justice in all phases
they are enacted as statutory or legislative rules of national development.
By this doctrine, the country is bound by Section 11. The State values the dignity of every human person
generally accepted principles of international and guarantees full respect for human rights.
law, which are considered to be automatically
part of our own laws. Section 13. The State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical,
2. Doctrine of Transformation – treaties or moral, spiritual, intellectual, and social well-being. It shall
international agreements shall become valid and inculcate in the youth patriotism and nationalism, and
effective upon concurrence by at least 2/3 of all encourage their involvement in public and civic affairs.
the members of the senate. These rules of
international law are not part of municipal law Section 14. The State recognizes the role of women in nation-
unless they are transformed via legislation. building, and shall ensure the fundamental equality before the
law of women and men.
Philippine Domestic Law in Public International Law
GR: A State cannot invoke its own national law to resist Section 18. The State affirms labor as a primary social economic
an international claim or excuse itself from breach of duty force. It shall protect the rights of workers and promote their
under international law. welfare.
A party may not invoke the provisions of its internal law Section 20. The State recognizes the indispensable role of the
as justification for its failure to perform a treaty. private sector, encourages private enterprise, and provides
incentives to needed investments.
XPN: A state may invoke the fact that its consent to be
bound by a treaty has been expressed in violation of a Article III
provision of its internal law regarding competence to
conclude treaties as invalidating its consent if that
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Section 1. No person shall be deprived of life, liberty, or property security of tenure, humane conditions of work, and a
without due process of law, nor shall any person be denied the living wage. They shall also participate in policy and
equal protection of the laws. decision-making processes affecting their rights and
benefits as may be provided by law.
Section 4. No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the people The State shall promote the principle of shared
peaceably to assemble and petition the government for redress responsibility between workers and employers and the
of grievances. preferential use of voluntary modes in settling disputes,
including conciliation, and shall enforce their mutual
Section 7. The right of the people to information on matters of compliance therewith to foster industrial peace.
public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research The State shall regulate the relations between workers
and employers, recognizing the right of labor to its just
data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law. share in the fruits of production and the right of
enterprises to reasonable returns to investments, and to
Section 8. The right of the people, including those employed in expansion and growth.
the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged. Section 13. The State shall establish a special agency for
disabled persons for their rehabilitation, self-development, and
Section 10. No law impairing the obligation of contracts shall self-reliance, and their integration into the mainstream of
be passed. society.
Section 16. All persons shall have the right to a speedy Section 14. The State shall protect working women by
disposition of their cases before all judicial, quasi-judicial, or providing safe and healthful working conditions, taking into
administrative bodies. account their maternal functions, and such facilities and
opportunities that will enhance their welfare and enable them
to realize their full potential in the service of the nation.
Section 18. (2) No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the party shall have
been duly convicted. Article XVI
Article XII Section 8. The State shall, from time to time, review to increase
the pensions and other benefits due to retirees of both the
Section 12. The State shall promote the preferential use of government and the private sectors.
Filipino labor, domestic materials and locally produced goods,
and adopt measures that help make them competitive. 2. Civil Code
Article XIII ARTICLE 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give
Section 1. The Congress shall give highest priority to the everyone his due, and observe honesty and good faith.
enactment of measures that protect and enhance the right of all
the people to human dignity, reduce social, economic, and ARTICLE 20. Every person who, contrary to law, wilfully or
political inequalities, and remove cultural inequities by negligently causes damage to another, shall indemnify the latter
equitably diffusing wealth and political power for the common for the same.
good.
ARTICLE 21. Any person who wilfully causes loss or injury to
To this end, the State shall regulate the acquisition, ownership, another in a manner that is contrary to morals, good customs
use, and disposition of property and its increments. or public policy shall compensate the latter for the damage.
Section 2. The promotion of social justice shall include the ARTICLE 1700. The relations between capital and labor are not
commitment to create economic opportunities based on freedom merely contractual. They are so impressed with public interest
of initiative and self-reliance. that labor contracts must yield to the common good. Therefore,
such contracts are subject to the special laws on labor unions,
Section 3. The State shall afford full protection to labor, collective bargaining, strikes and lockouts, closed shop, wages,
local and overseas, organized and unorganized, working conditions, hours of labor and similar subjects.
and promote full employment and equality of
employment opportunities for all. ARTICLE 1701. Neither capital nor labor shall act oppressively
against the other, or impair the interest or convenience of the
It shall guarantee the rights of all workers to self- public.
organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to
strike in accordance with law. They shall be entitled to
AB Page 52 of 69
ARTICLE 1702. In case of doubt, all labor legislation and all

labor contracts shall be construed in favor of the safety and Art. 6. Applicability. All rights and benefits granted to
decent living for the laborer. workers under this Code shall, except as may otherwise be
provided herein, apply alike to all workers, whether agricultural
ARTICLE 1703. No contract which practically amounts to or non-agricultural. (As amended by Presidential Decree No.
involuntary servitude, under any guise whatsoever, shall be 570-A, November 1, 1974)
valid.
A. State policy towards labor
ARTICLE 1704. In collective bargaining, the labor union or Art. 3. Declaration of basic policy. The State shall afford
members of the board or committee signing the contract shall be
protection to labor, promote full employment, ensure equal
liable for non-fulfillment thereof. work opportunities regardless of sex, race or creed and regulate
the relations between workers and employers. The State shall
ARTICLE 1705. The laborer’s wages shall be paid in legal assure the rights of workers to self-organization, collective
currency. bargaining, security of tenure, and just and humane conditions
of work.
ARTICLE 1706. Withholding of the wages, except for a debt
due, shall not be made by the employer. 1. Security of tenure
ARTICLE 1707. The laborer’s wages shall be a lien on the goods All workers shall be entitled to security of tenure.
manufactured or the work done.
Police power allows the State to regulate the grant of the
right to security of tenure.
ARTICLE 1708. The laborer’s wages shall not be subject to
execution or attachment, except for debts incurred for food, 2. Social Justice
shelter, clothing and medical attendance.
Q: Define Social Justice.
ARTICLE 1709. The employer shall neither seize nor retain any
tool or other articles belonging to the laborer. A: Social Justice simply means “the humanization of laws
and the equalization of social and economic forces by the
ARTICLE 1710. Dismissal of laborers shall be subject to the State so that justice in its rational and objectively secular
supervision of the Government, under special laws. conception may at least be proximated.” (Calalang vs.
Williams 70 Phil. 726)
3. Labor Code This is the aim, reason and justification for the
enactment of labor laws.
PD No. 442, as amended
Q: While m social justice is the aim, reason and justification
of labor laws, what is the foundation of labor laws?
Art. 1. Name of Decree. This Decree shall be known as the
“Labor Code of the Philippines”. A: The basis and foundation of labor laws is the police power
of the State. It is the power of the Government to enact
Art. 2. Date of effectivity. This Code shall take effect six (6) laws, within Constitutional limits, to promote the order,
months after its promulgation. safety, health, morals and general welfare of society.
Art. 3. Declaration of basic policy. The State shall afford 3. Equal work opportunities
protection to labor, promote full employment, ensure equal
work opportunities regardless of sex, race or creed and regulate The State shall ensure equal work opportunities
the relations between workers and employers. The State shall regardless of sex, race or creed.
assure the rights of workers to self-organization, collective
bargaining, security of tenure, and just and humane conditions The State shall assure the rights of workers to:
of work. a. Self-organization
b. Collective bargaining
Art. 4. Construction in favor of labor. All doubts in the c. Security of tenure and
implementation and interpretation of the provisions of this d. Just and humane conditions of
Code, including its implementing rules and regulations, shall work
be resolved in favor of labor.
4. Right to self-organization and collective
Art. 5. Rules and regulations. The Department of Labor and bargaining
other government agencies charged with the administration
and enforcement of this Code or any of its parts shall The State shall guarantee the right of the people,
promulgate the necessary implementing rules and regulations. including those employed in the public and private
Such rules and regulations shall become effective fifteen (15) sectors, to form unions, associations or societies for
days after announcement of their adoption in newspapers of purposes not contrary to law.
general circulation.
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The State shall guarantee the rights of all workers to self- Not every form of control will have the effect of
organization, collective bargaining and negotiations, and establishing an employer-employee relationship. A line
peaceful concerted activities, including the right to strike should be drawn between:
in accordance with law. They shall be entitled to security e. Rules that merely serves as guidelines,
tenure, humane conditions of work, and a living wage.
which only promote
They shall also participate in policy and decision-making
the result. In such case, no employer-employee
processes affecting their rights and benefits as may be
provided by law. relationship exist.
f. Rules that fix the methodology and bind
or restrict the party hired to the use of
5. Construction in favor of labor such means of methods. These address
both the result and means employed to
Q: How should Labor Laws be construed? achieve it and hence, employeremployee
relationship exist.
A: Under the Article 4 of the Labor Code, as amended, it is
provided: “All doubts in the implementation and Cases where employer-employee relationship EXISTS:
interpretation of the provisions of this Code, including its
implementing rules and regulations, shall be resolved in
favor of labor.” a. Jeepney drivers on boundary system
(Martinez vs.
However, it should not be supposed that every NLRC, 272 SCRA 793)
labor dispute be automatically decided in favor of labor. b. Drivers or helpers of salesman (Alhambra
The rule is applicable only if there is a doubt as to the Industries vs.
meaning of the legal and contractual provision. If the
CIR, 355 SCRA 553)
provision is clear and unambiguous, it must be applied in
accordance with its express terms. c. Handicraft workers on “pakyaw system”
(Dy Keh Beng vs. Int’l. Labor, 90 SCRA 161)
The law, in protecting the rights of the laborer, d. Musicians who were engaged by musical
authorizes neither oppression nor self-destruction of the director for background music in making
employer. of movies (LVN vs. Phil.
Musicians Guild, 1 SCRA 132)
6. Burden of proof and quantum of e. Tailors, pressers and stitchers in COD
evidence tailoring department (Rosario Bros vs.
Ople)
Existence of ER-EE Relationship: Employee
Fact of Dismissal: Employee Cases where employer-employee DOES NOT EXIST:
Validity of Dismissal: Employer
EXISTENCE OF EMPLOYER-EMPLOYEE
a. Insurance company vis-à-vis
RELATIONSHIP; TESTS commission agents (Insular
Life vs. NLRC, 179 SCRA 459)
FOUR FOLD TEST b. Company vs. Collecting agents on
commission basis
In determining whether a given set of circumstances
(Singer Sewing Machine vs. Drilon,
constitute or exhibit an employer-employee relationship,
193 SCRA 270)
the accepted rule is that the elements or circumstances
relating to the following matters shall be examined and c. Softdrinks company vs. independent
considered: contractors selling softdrinks (Mafinco vs.
a. selection and engagement of the Ople, 70 SCRA 139)
employees d. Shoe shine boys (Besa vs. Trejano, 146
b. payment of wages SCRA 501)
c. power of dismissal e. TV anchors and radio broadcasters and
columnists of newspapers.
d. power to control the employees’ conduct
TERMINATION OF EMPLOYMENT
The “control test” is the most crucial and determinative
indication of the presence or absence of an employer-
What are the JUST CAUSES FOR DISMISSAL?
employee relationship. Absence of such despite the presence
of the other three elements will not suffice for the relationship 1. Serious MISCONDUCT OR WILLFUL
to exist. DISOBEDIENCE by the employee of the lawful
orders of his employer or representative in
connection with his work;
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• Misconduct- transgression of some established a. the disease is incurable within 6 months and
and definite rule of action, a forbidden act, a the continued employment of the employee
dereliction of duty, willful in character, and is prohibited by law or prejudicial to his
implies wrongful intent and not mere error in health as well as to the health of his
judgment. (Dept. of Labor Manual, Sec. coemployees
4353.01)
b. with a certification from public heath officer
2. Gross and habitual NEGLECT by the employee that the disease is incurable within 6 months
of his duties; despite due medication and treatment.
3. FRAUD OR WILLFUL BREACH by the
TERMINATION BY EMPLOYEE
employee of the trust reposed in him by his
employer or duly organized representative WITHOUT JUST CAUSE- by serving a
WRITTEN NOTICE on the employer at least one
• Fraud must be committed against the month in advance. The employer upon whom no
employer or his representative and in such notice was served may hold the employee
connection with the employee’s work. (Dept. liable for damages.
of Labor Manual, Sec. 4353.01 [3]) WITH JUST CAUSE - An employee may put an
4. Commission of a CRIME OR OFFENSE BY THE end to employment WITHOUT SERVING ANY
EMPLOYEE AGAINST THE PERSON OF HIS NOTICE on the employer for any of the following
EMPLOYER or any immediate member of his just causes:
family or his duly authorized representative; 1. SERIOUS INSULT by the employer or his
and representative on the hour and person of the
• Conviction or prosecution is not required. employee;
5. Other causes ANALOGOUS to the foregoing. 2. Inhuman and UNBEARABLE TREATMENT
accorded the employee by the employer or his
• A cause must be due to the voluntary or willful representative;
act or omission of the employee. (Nadura v.
Benguet Consolidated, G.R. No. L-17780) 3. Commission of a CRIME OR OFFENSE by the
employer or his representative against the
What are the AUTHORIZED CAUSES OF person of the employee or any of the immediate
TERMINATION BY THE EMPLOYER? members of his family; and
1. installation of labor-saving devices 4. Other causes ANALOGOUS to any of the

(AUTOMATION) foregoing.
2. REDUNDANCY (superfluity in the performance DISMISSAL, PRESENCE OF JUST/AUTHORIZED

of a particular work) CAUSE AND DUE PROCESS
redundancy, for purposes of the Labor Code, Four possible situations under AGABON vs. NLRC,
exists where the services of an employee are November 17, 2004:
in excess of what is reasonably demanded by
the actual requirements of the enterprise. 1. If dismissal is for a just/authorized cause and
(Wiltshire File Co. Inc. vs. NLRC) due process was observed- dismissal is valid and
employer will not suffer any liability.
3. RETRENCHMENT to prevent losses (there is
excess of employees and employer wants to 2. If dismissal is without just/authorized cause but
prevent financial losses). Requirements: due process was observed – dismissal is illegal,
apply Art 279 regarding reinstatement and
(a) substantial losses which are not merely de backwages.
minimis in extent;
(b) imminence of such substantial losses; 3. If dismissal is without just/authorized cause and
without due process- dismissal is illegal, apply
(c) retrenchment would effectively prevent the Art. 279 regarding reinstatement and
expected and additional losses; backwages.
(d) the alleged losses and expected losses must be 4. Dismissal is for just/authorized cause but due
proven by sufficient and convincing evidence. process was not observed – Dismissal is valid.
However, Sanctions must be imposed on the
4. closing or CESSATION OF OPERATION of the
employer. Such sanctions must be stiffer than
establishment or undertaking UNLESS the
that imposed in Wenphil.
closing is for the purpose of circumventing the
provisions of the Labor Code.
Under the WENPHIL DOCTRINE, if the services of
5. DISEASE the employee was terminated due to a just or authorized
cause but the affected employee’s right to due process
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has been violated, the dismissal is legal but the employee Components of Retirement Pay:
is entitled to damages by way of indemnification for the a) 15 days based on the employee’s latest
violation of the right. salary
SERRANO vs. ISETANN et al. abandoned the b) 1/12 of the 13th month pay
Wenphil doctrine and ruled that if the employee is c) cash equivalent of the 5 days service
dismissed under just or authorized cause but the affected incentive leave
employee’s right to due process has been violated, his
dismissal becomes ineffectual. Therefore, the employee is Computation: 22.5 days x number of years of service {22.5
entitled to backwages from the time he was dismissed days: 15 days plus 2.5 days representing 1/12 of the 13th month
until the determination of the justness of the cause of the pay plus 5 days of service incentive leave}
dismissal.
The case of AGABON vs. NLRC abandoned the REQUIREMENTS OF VALID LABOR-ONLY
CONTRACTING
Serrano doctrine and REINSTATED THE WENPHIL
DOCTRINE. The sanctions however must be stiffer than There is labor-only contracting where:
that imposed in Wenphil. 1) the person supplying workers to an employer
The Court in the case of JAKA FOOD PROCESSING does not have substantial capital or investment
CORP. vs. PACOT et al., March 28, 2005, said that “If the in the form of tools, equipment, machineries,
dismissal is based on a just cause under Article 282 but work premises, among others; and
the employer failed to comply with the notice
requirement, the sanction to be imposed upon him
2) the workers recruited and placed by such person
are performing activities which are directly
should be tempered because the dismissal process was,
related to the principal business of such
in effect, initiated by an act imputable to the employee;
employer (Baguio, et.al vs. NLRC, et al., 202
and
If the dismissal is based on an authorized cause Requirements:
under Article 283 but the employer failed to comply with
the notice requirement, the sanction should be stiffer 1. Distinct and independent business
because the dismissal process was initiated by the
employer’s exercise of his management prerogative.”
2. Substantial capital or investment
3. Free from control/direction of the principal
What is the TOTALITY OF INFRACTIONS 4. Compliance with labor laws
DOCTRINE ?
Where the employee has been found to have repeatedly RIGHTS OF EMPLOYEES AND OF LABOR
incurred several suspensions or warnings on account of ORGANIZATIONS; MEMBERSHIP IN UNIONS
violations of company rules and regulations, the law The State shall assure the rights of workers to:
warrants their dismissal as akin to “HABITUAL a. Self-organization
DELINQUENCY” (Villeno vs. NLRC, 251 SCRA b. Collective bargaining and negotiations
494) c. Peaceful concerted activities including the right
to strike in accordance with law
d. Security of tenure
When is the STRAINED RELATIONSHIP RULE e. Humane conditions of work
APPLICABLE? f. Living wage
Strained relationship may be invoked ONLY AGAINST g. Participate in policy and decision-making
affecting their rights and benefit as may be
EMPLOYEES WHOSE POSITIONS DEMAND TRUST
provided by law.
AND CONFIDENCE or whose DIFFERENCES WITH
THEIR EMPLOYER ARE OF SUCH NATURE OR Rationale for Unionization:
DEGREE AS TO PRECLUDE The interest of the individual worker can better be protected
REINSTATEMENT (Dimabayao vs. NLRC, 303 SCRA 655). by the union and secure for them the best wages and
It does not apply to ULP cases where the employee was working terms and conditions.
dismissed for union activities.
Rights of Labor Organization:
RETIREMENT (R.A 7641, approved on December 9, a. To represent its members in collective bargaining
1992 – it has a retroactive effect being a curative social b. To be certified as exclusive representative in
legislation) collective bargaining
c. To ask for financial statements
a) Compulsory – upon reaching 65 years of age; with at d. To own property
least 5 years of service e. To sue and be sued
b) Optional – upon reaching 60 years of age; with at least 5 f. To do acts which benefit the organization
years of service; at the option of the employee g. To collect membership fees
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Who cannot Form, Join or assist labor organization

a. Managerial employees Management is at liberty, absent any malice on its part,
b. Confidential employees to abolish positions which it deems no longer necessary.
c. Non-employees
d. Member-employee of a cooperative • It is management prerogative to merge job
e. Employees of international organizations functions in line with streamlining of the
f. High-level government employees company to cut costs even if an employee would
g. Members of AFP, Police officers, policemen, thereby lose his employment due to abolition of
firemen and jail guards his position.
Note: The right to join union includes right not to join. • Labor laws discourage interference with an
employer’s judgment in the conduct of his
MANAGEMENT PREROGATIVES business.
What are included in the term “management
prerogatives? Limitations in the exercise of management prerogatives:
a. right to CONDUCT business 1) imposed by LAW
b. right to PRESCRIBE RULES 2) provisions in the COLLECTIVE

BARGAINING AGREEMENT
c. right to SELECT and HIRE employees
3) general principles of FAIR PLAY
d. right to TERMINATE employees and JUSTICE
e. right to FAIR RETURN OF
INVESTMENT and EXPANSION of ILLEGAL RECRUITMENT OF OVERSEAS FILIPINO
business WORKERS
Illegal recruitment shall mean any act of canvassing,
Transfer of Employees enlisting, contracting, transporting, utilizing, hiring or
procuring workers and includes referring, contract
• As a general rule, the employer has the services, promising or advertising for employment
inherent right to transfer or assign an abroad, whether for profit or not, when undertaken by a
employee subject only to the condition that it non-license or non-holder of authority contemplated
not be motivated by 1) discrimination or 2) bad under Article 13(f) of Presidential Decree No. 442, as
faith (PT&T vs. Laplana, 199 SCRA 485). amended, otherwise known as the Labor Code of the
Philippines:
• An employee’s right to security of tenure does
not give him such vested right in his position Provided, that any such non-licensee or non-holder who,
as would deprive the company of its in any manner, offers or promises for a fee employment
prerogative to change his assignment or abroad to two or more persons shall be deemed so
transfer him. It is the prerogative of engaged. Illegal recruitment is deemed committed by a
management to transfer an employee where he syndicate if carried out by a group of three (3) or more
can be most useful to the company (Blue Dairy persons conspiring or confederating with one another. It
Corporation vs. NLRC, 314 SCRA 401). is deemed committed in large scale if committed against
three (3) or more persons individually or as a group.
• Transfer, even if due to promotion, cannot be
done without employee’s consent.
• Undertakes any recruitment activity defined in
• Re-assignment pending administrative Article 13(b), LC without a valid license/
investigations of irregularities allegedly authority.
committed by an employee fall within the • Commits any of the prohibited acts in Sec.6
ambit of management prerogative. The
purpose is no different from that of preventive REMEDIES (LABOR STANDARD VIOLATIONS)
suspension which management could validly The aggrieved party from a decision of the SOLE may file
impose as disciplinary measure for the pne motion for reconsideration within 10 days from
protection of the company’s property pending receipt thereof.
investigation of any malfeasance or
misfeasance committed by the employee If the motion for reconsideration is denied, the party may
(Consolidated Food Corp. vs. NLRC, 315 SCRA appeal via Rule 65 to the CA 60 days from receipt of the
129). denial. Upon denial, the party may proceed via Rule 45 to
the SC.
When is there constructive dismissal?
Clearly, before a petition for certiorari under Rule 65 may
A transfer amounts to constructive dismissal when the
be availed of, the filing of a motion for reconsideration is
transfer is unreasonable, inconvenient, or prejudicial to the a condition sine qua non to afford an opportunity for the
employee, and involves a demotion in rank or diminution correction of the error or mistake complained of.
of salaries, benefits and other privileges.
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• Theoretical Justice – taxes must be based on

*END* taxpayer’s ability to pay.
Taxation Law Theory and Basis of Taxation

• Lifeblood theory – without taxes government will not
q Basic principles of taxation in the Constitution survive.
q Income tax • Necessity theory – existence of government is a
q Value-added tax necessity which gives it a right to compel all persons
q Donor’s tax within its jurisdiction to contribute.
q Remedies (Jurisdiction of courts, prescription, • Benefit-protection theory – taxes are what we pay for
remedies against assessment notices) civilized society. This is also called the doctrine of
symbiotic relationship.
• Jurisdiction over subjects and objects – the state
BASIC PRINCIPLES OF TAXATION exercises jurisdiction over persons, property and
privileges within its defined place of taxation.
DEFINITION AND CONCEPT OF TAXATION
• Taxation is an inherent power of the sovereign, PROSPECTIVITY OF TAX LAWS
exercised through the legislature, to impose burdens General Rule: Tax laws are prospective in operation.
upon subjects and objects within its jurisdiction for
raising revenues to carry out the legitimate objects of XPN: It may operate retroactively:
government. 1. When clearly declared in the statute or
• Taxation is the power by which the sovereign raises 2. When it is clearly the legislative intent.
revenue to defray the necessary expenses of
government. It is a way of apportioning the cost of Retroactive application maybe allowed if it will not
government among those who in some measure are amount to violation of due process. Hence, oppressive
privileged to enjoy the benefits and must therefore taxes should not be imposed.
bear its burdens.
• It is a “symbiotic” relationship whereby in exchange PRESCRIPTION OF TAXES
for the protection that the citizens get from the General Rule: Taxes are imprescriptible in the view of
Government, taxes are paid. the lifeblood doctrine.
NATURE OF TAXATION Tax statutes may provide for rules on prescription which
• It is an inherent attribute of sovereignty – it co-exists will make the general rule inapplicable.
with the State without the need of Constitutional
conferment. Prescriptive periods for the assessment and collection of
• Legislative in Character – taxes are grant of the internal revenue taxes are provided by law. (Sec 203 and
people who are taxed and the grant must be made by 222, NIRC)
the immediate representatives of the people.
• Taxation is an awesome power but should not be DOUBLE TAXATION
exercised arbitrarily. It is subject to inherent and Direct Duplicate Taxation – prohibitive double taxation.
constitutional limitations to avoid abuses in its
exercise. Requisites:
1. The same subject matter is taxed twice
PURPOSES OF TAXATION 2. By the same taxing authority
Main Purpose : TO RAISE REVENUES TO DEFRAY 3. Within the same jurisdiction or taxing district
THE EXPENSES OF GOVERNMENT. 4. For the same purpose/ same kind of tax
5. During the same taxable period
Secondary or non-revenue purposes:
Indirect Double Taxation – a permissive kind of double
1. Promotion of general welfare
taxation. It arises in the absence of one or more of the
2. Regulation
elements of direct double taxation.
3. Reduction of Social Equity
4. Encourage Economic growth
5. Protectionism CONSTITUTIONALITY OF DOUBLE TAXATION
• There is no prohibition against double taxation in the
BASIC PRINCIPLES OF A SOUND TAX SYSTEM Philippines.
• Fiscal Adequacy – amount of taxes raised must be • Double taxation becomes obnoxious only where the
able to meet government expenditure. taxpayer is taxed twice for the benefit of the same
governmental entity or by the same jurisdiction, for
• Administrative Feasibility – tax laws must be capable the same purpose, but not in the case where a tax is
of being easily enforced with the least inconvenience
to the taxpayers.
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imposed by the State and the other by the city or persons otherwise guilty of evasion or violation
municipality. of a revenue or tax law.
• It partakes of an absolute waiver by the
ESCAPES FROM TAXATION government of its right to collect what is due it
1. Shifting of the tax burden – transfer of the burden and to give tax evaders who wish to relent a
by the original payor or the one on whom the tax chance to start with a clean slate.
was imposed to another or someone else. • Distinction with Tax Exemption:
2. Tax avoidance – use of legally permissible ways o Tax amnesty is immunity from all
or methods of assessing a taxable property or criminal, civil and administrative
income in order to avoid or reduce tax liability. liabilities arising from non-payment of
3. Tax Evasion – use of pretenses and forbidden taxes; while tax exemption is immunity
devices to lessen or defeat taxes. from civil liability only.
o Tax amnesty is retroactive in application;
SHIFTING OF TAXES while tax exemption is prospective.
• Forward Shifting – from producer to consumer
INHERENT LIMITATIONS
• Backward Shifting – from consumer to producer
1. Public purpose
• Onward Shifting – tax is shifted two or more times 2. Inherently legislative
either forward or backward 3. Territoriality or Jurisdictional Requirement
• Taxes that can be shifted – indirect taxes i.e. VAT, 4. International Comity
Excise tax, other percentage tax, DST 5. Exemption of Government Entities, Agencies and
• Impact of Taxation – point on which tax is originally Instrumentalities
imposed or the one to whom the tax is formally
assessed. It is where the statutory liability for the tax CONSTITUTIONAL LIMITATIONS
lies.
• Provisions Directly Affecting Taxation:
• Incidence of Taxation – point at which the tax burden
1. Prohibition against imprisonment for non-
finally rests or settles down. It is where the economic
payment of poll tax
burden of the tax falls.
2. Uniformity and equality of taxation
3. Grant by Congress of authority to the President
TAX EXEMPTION to impose tariff rates
It is a grant of immunity to a particular person or persons 4. Prohibition against taxation of religious,
from a tax which persons are generally, within the same charitable and educational entities
state or taxing district, are obliged to pay. 5. Prohibition against taxation of non-stock, non-
profit educational institutions
Construction: Construed in strictissimi juris against the 6. Majority vote of Congress for grant of tax
taxpayer and liberally in favor of the government exemption
7. Prohibition on use of tax levied for special
Kinds of tax exemption: Express, Implies and Contractual purpose for general purposes.
8. President’s veto power on appropriation,
Revocation: revenue or tariff bills
• An act of liberality which could be taken back by 9. Non-impairment of jurisdiction of the Supreme
the granting authority. Court
• If the tax exemption constitutes a binding 10. Grant of power to the LGUs to create their own
contract and for valuable consideration, the sources of revenue
government cannot unilaterally revoke it. 11. Flexible tariff clause
12. Exemption from real property taxes
13. No appropriation or use of public money for
COMPENSATION OR SET-OFF OF TAXES
religious purposes
• Set-off is inadmissible since a tax liability is a legal,
not a contractual obligation. The government and the • Provisions Indirectly Affecting Taxation:
taxpayer are not debtors and creditors of each other. 1. Due Process
• Compensation is allowed if both debts and taxes are 2. Equal Protection
overdue, demandable, as well as fully liquidated. 3. Press Freedom
• Doctrine of set-off may be applied when the amount 4. Religious Freedom
of debt due from the government to the taxpayer has 5. Non-impairment of the obligations of contracts
been appropriated through legislation, hence,
already due and liquidated. STAGES OF TAXATION
1. Levy – the act of Congress in enacting a law
TAX AMNESTY imposing taxes.
• It is a general or intentional overlooking by the 2. Assessment and Collection – refers to the
State of its authority to impose penalties on enforcement of the tax law by the administrative
agencies of the Executive Department.
AB Page 59 of 69
3. Payment – act of compliance by the taxpayer, INCOME TAX

including such options, schemes or remedies as
DEFINITION
may be legally available to him.
4. Refund – remedy of seeking reimbursement of a Defined as a tax on all yearly profits arising from
tax erroneously paid or illegally collected. property, professions, trades, or offices, or as a tax on the
person’s income, emoluments, profits and the like. It may
be succinctly defined as a tax on income, whether gross
DEFINITION OF TAXES
or net, realized in one taxable year.
Taxes are:
q Enforced proportional contributions NATURE
q From persons, properties and privileges It is generally classified as an excise tax. It is not levied
q Levied by the law-making body of the State upon persons, property, funds or profits but upon the
q By virtue of its sovereignty right of a person to receive income or profits.
q For the support of the government and public
needs. GENERAL PRINCIPLES (Sec 23, NIRC)
TAXPAYER WITHIN WITHOUT
CHARACTERISTICS OF TAXES Resident TAXABLE TAXABLE
q Levied by the State which has jurisdiction over Citizen
the subject to be taxed Non-resident TAXABLE X
q Levied by the law-making body Citizen and
q Enforced proportional contributions Overseas
Contract
q Generally payable in money
Worker
q Levied on persons, properties or privileges Resident Alien TAXABLE X
q Levied for public purposes Non-Resident TAXABLE X
Alien
REQUISITES OF A VALID TAX Domestic TAXABLE TAXABLE
q Subject or object must be within the jurisdiction Corporation
of the taxing authority Foreign TAXABLE X
q Assessment and collection of taxes must comply Corporation
with due process of law
q Must be collected and used for public purposes INCOME TAX SYSTEMS
q Must be uniform GLOBAL
q Must not infringe on the inherent and Is one where the tax treatment views indifferently the tax
constitutional limitations base and generally treats in common all categories of
taxable income of the TP.
KINDS OF TAXES
SCHEDULAR
q As to subject matter:
Is one where the income tax treatment varies and is made
o Personal, capitation or poll tax
to depend on the kind or category of taxable income of
o Property tax
the TP.
o Excise or privilege tax
q As to who bears the burden
SEMI-SCHEDULAR OR SEMI-GLOBAL TAX
o Direct tax
SYSTEM
o Indirect tax
All compensation income, business or professional
q As to determination of the amount
income, capital gain and passive income not subject to
o Specific final tax, and other income are added together to arrive at
o Ad valorem
the gross income, and after deducting the sum of
o Mixed allowable deductions, the taxable income is subjected to
q As to purpose one set of graduated tax rates or normal corporate income
o General or fiscal tax. With respect to such income the computation is
o Special, regulatory or sumptuary global.
q As to scope or authority to impose
o National tax For those other income not mentioned above, they remain
o Local tax subject to different sets of tax rates and covered by
q As to graduation different returns.
o Progressive
o Regressive NOTE: The Philippines, under the NIRC, follows a semi-
o Mixed schedular and semi-global tax system.
FEATURES OF THE PHILIPPINE INCOME TAX LAW
AB Page 60 of 69
q Direct Tax – tax burden is borne by the income q Fringe benefits tax on fringe benefits of
recipient upon whom the tax is imposed. supervisory or managerial employees;
q Progressive – tax rate increases as the tax base q Branch profit remittance tax; and
increases. It is founded on the ability to pay q Tax on improperly accumulated earnings of
principle and is consistent with Sec 28, Article VI, corporations
1987 Constitution.
q Comprehensive – the PH has adopted the most KINDS OF TAXPAYERS
comprehensive system of imposing income tax For income tax purposes, taxpayers are classified
by adopting the citizenship principle, the generally as follows:
residence principle, and the source principle. q Individuals
Any of the three principles is enough to justify the
imposition of income tax on the income of a q Corporations
resident citizen and a domestic corporation that q Estates and Trusts
are taxed on a worldwide income. q Partnerships (General Partnership and General
q Semi-Schedular or Semi-Global Tax System – the Professional Partnerships)
PH follows the semi schedular or semi global tax
system of income taxation, although certain INDIVIDUAL TAXPAYERS
passive investment incomes and capital gains q Citizens
from sale of capital assets (a) shares of stock of o Resident Citizens
domestic corporations and (b) real property are o Non-resident Citizens (Sec 22, NIRC)
subject to final tax rates at preferential tax rates. § PH citizen who establishes to the
satisfaction of the CIR the fact of
CRITERIA IN IMPOSING PH INCOME TAX his physical presence abroad
CITIZENSHIP with a definite intention to reside
A citizen of the PH is subject to PH income tax. therein.
q On his worldwide income, if he resides in the § PH citizen who leaves the PH
Philippines; or during the taxable year to reside
abroad, either as an immigrant
q Only on his income from sources within the PH, or for employment on a
if he qualifies as a non-resident citizen.
permanent basis.
§ PH citizen who works and
RESIDENCE derives income from abroad and
A resident alien is liable to pay PH income tax only on his whose employment thereat
income from sources within the PH but is exempt from requires him to be physically
tax on his income from sources outside the PH. present abroad most of the time
during the taxable year. To be
SOURCE considered physically present
An alien is subject to PH income tax because he derives abroad most of the time during
income from sources within the PH. Thus, a non-resident the taxable year, a contract
alien or non-resident foreign corporation is liable to pay worker must have been outside
PH income tax on income from sources within the PH, the PH for not less than 183 days
such as dividend, interest, rent or royalty, despite the fact during such taxable year.
that he has not set foot in the PH. § PH citizens previously
considered as non-resident
TYPES OF PHILIPPINE INCOME TAX citizen and who arrives during
q Graduated income tax and fixed tax on gross the taxable year to reside
permanently in the PH- Treated
sales or receipts for individuals;
as NRC with respect to his
q Normal corporate income tax on corporations; income derived from sources
q Minimum corporate income tax on corporations; abroad until his arrival in the
q Special income tax on certain corporations; PH.
q Capital gain tax on sale or exchange of unlisted q Aliens
shares of stock of a domestic corporation o Resident Alien – an alien actually present
classified as capital assets; in the PH who is not a mere transient or
q Capital gain tax on sale or exchange of real sojourner is a resident for income tax
property located in the PH classified as a capital purposes.
asset; o Non-resident Alien
q Final withholding tax on certain passive § Engaged in trade or business in
investment income paid to residents; the PH – if the aggregate period
q Final withholding tax on income payments made of his stay in the PH is more than
to non-residents; 180 days during any calendar
year,
AB Page 61 of 69
§ Not engaged in trade or business q Calendar year – an accounting period of 12

in the PH – if the aggregate months ending on the last day of December.
period of his stay in the PH does q Fiscal year – an accounting period of 12 months
not exceed 180 days. ending on the last day of any month other than
q Special Classes of Individuals – Minimum Wage December/
Earner q Short period – an accounting period which starts
after the first month of the tax year or ends before
CORPORATIONS the last month of the tax year instances whereby
q Domestic Corporations – a corporation created short accounting period arises
and organized in the PH or under its laws. o When corporation is newly organized
q Foreign Corporations – a corporation which is o When a corporation is dissolved
not domestic. o When a corporation changes its
o Resident Foreign Corporations – foreign accounting period
corporations engaged in trade or o When the TP dies.
business within the PH;
o Non-resident Foreign Corporations – FC GR: taxable income shall be computed based on the TP’s
not engaged in trade or business within annual accounting period, which may be fiscal year or
the PH. calendar year
XPN: taxable income shall be computed based on the

ESTATES AND TRUSTS
basis of calendar year only:
Income tax imposed on individuals shall apply to income 1. if the TP’s annual accounting period is other than a
of estates or of any kind of property held in trust. fiscal year;
2. if the TP has no annual accounting period;
XPN: 3. if the TP does not keep books of accounts; or
1. Employee’s Trust 4. if the TP’s is an individual
2. Revocable Trusts -______
3. Income for Benefit of Grantor
*See Notes: Pre-week Atty Lock
Estate – refers to all the property, rights and obligations
of a person which are not extinguished by his death and
VALUE ADDED TAX
those which have accrued thereto since the opening of the
succession.
Value-Added Tax is a form of sales tax. It is a tax on
Trust – an arrangement created by will or an agreement consumption levied on the sale, barter, exchange or lease
under which legal title to property is passed to another of goods or properties and services in the Philippines and
for conservation or investment with income therefrom on importation of goods into the Philippines.
and ultimately the corpus to be distributed in accordance
with the directions of the creator as expressed in the It is an indirect tax, which may be shifted or passed on the
governing instrument. buyer, transferee or lessee of goods, properties or
services.
PARTNERSHIPS IMPACT (Statutory Burden)
q General Partnerships – a partnership which is not The impact of tax in VAT is with the seller, who has the
a general professional partnership. Treated as a burden under the law to pay the tax to the BIR.
corporation.
q General Professional Partnerships – a partnership INCIDENCE (Economic Burden)
formed by persons for the sole purpose of The incidence of tax in VAT is with the buyer, where the
exercising their common profession, no part of law allows the VAT due on the transaction to be shifted
the income of which is derived from engaging in to the customer/buyer/end-user.
any trade or business.
Who are liable for VAT
The partners themselves, not the partnership, • Any person or entity who, in the course of his
shall be liable for income tax in their separate and trade or business, sells, barters, exchanges, leases
individual capacities. Each partner shall report as goods or properties and renders services subject
gross income his distributive share, actually or to VAT, if the aggregate amount of actual gross
constructively received, in the net income of the sales or receipts exceed Three Million Pesos
partnership. (Php3,000,000.00)
• A person required to register as VAT taxpayer
TAXABLE PERIOD but failed to register
Taxable year means the calendar year, or the fiscal year • Any person, whether or not made in the course of
ending during such calendar year, upon the basis of his trade or business, who imports
which the net income is computed.
AB Page 62 of 69
In the course of trade of business – means the regular

conduct or pursuit of a commercial or an economic May VAT paid on reimbursed expense be claimed as
activity, including transactions incidental thereto, by any input tax?
person regardless of whether or not the person engaged No. In the case of CIR v Sony, an advertising expense
therein is a non-stock, non-profit private organization, or duly covered by a VAT invoice is a legitimate business
government entity expense. Moreover, since the advertising expense was
reimbursed by another, the former never incurred any
Carrying on business - means conducting, prosecuting advertising expense. Hence, not entitled to a tax credit.
and continuing business by performing progressively all
the acts normally incident thereof; Destination Principle / Cross Border Doctrine
Doing business – conveys the idea of business being No VAT shall be imposed to form part of the cost of
done, not from time to time, but all the time. goods destined for consumption outside of the territorial
border of the taxing authority. Hence actual export of
VAT Rates goods and services from the Philippines to a foreign
• On sale of goods and properties – 12 percent of country must be free from VAT. Conversely, those
the gross selling price destined for use or consumption within the Philippines
• On sale of services and use or lease of properties shall be imposed with the 12% VAT.
– 12 % of gross receipts
Thus, exports are subject to 0% VAT rate, while local
• On importation of goods – 12 % based on the total
transactions are subject to 12% VAT.
value used by the Bureau of Customs in
determining tariff and customs duties, plus other
Vatable v. Zero Rated v. Exempt
duties and excise taxes.
• On export sales and other zero-rated sales – 0% of Vatable Zero Rated Exempt
value of goods/ services exported Rate 12% 0% 0%
Registration Required Required Non-VAT
Output v. Input
for VAT
Claim for Allowed Allowed Not
Output – the VAT collected by a VAT registered seller
input Allowed –
on the sale of goods or services from its customers;
VAT paid
forms part
Amount was collected by the VAT seller from its
of cost of
customers in behalf of the government. This amount
goods or
does not form part of the gross sales/gross income of the
services
seller. The amount is to be remitted to the government.
purchased.
Input – the VAT paid on the purchase of goods, services
or importation by a VAT registered seller is Note: While an exporter may be subject to zero-rate, if it
denominated at INPUT VAT. does not register for VAT, it will be treated as VAT
exempt. Its transactions will not be subject to VAT but it
The amount paid to the VAT supplier by a VAT is not qualified to claim for input taxes.
registered purchaser considered as prepaid tax since the
amount paid can be charged or applied against VATABLE TRANSACTIONS
OUTPUT TAX • Sale of GOODS or Properties
o All tangible and intangible objects which
Output Tax = Input Tax No amount payable / are capable of pecuniary estimation, and
excess credit shall include:
Output Tax exceeds Input Excess Output Tax § Real properties held primarily
Tax payable to BIR for sale to customers
Input Tax exceeds Output § Real properties held primarily
Tax for lease in the ordinary course
a. When input tax 1. File for refund of of trade or business
resulted from excess input tax § Right or privilege to use
zero rated or 2. Carry over the • Patent, copyright,
effectively zero excess input tax design or model, plan,
rated or to succeeding secret formula or
effectively zero quarter / period process, goodwill,
rated transactions trademark, trade brand
b. When input tax 1. Carry over the or other like property or
resulted from excess input tax right
VATable to succeeding • Motion picture films,
transactions quarter / period tapes and discs
(12%)
AB Page 63 of 69
§ Radio, Television, satellite § Telephone and telegraph, radio

transmission and cable and television broadcasting and
television time all other franchise grantees
• Sale of goods or properties except
o Tax Base = Gross selling price (the total • Subject to Percentage
amount of money or its equivalent which Taxes
the purchase pays or is obligated to pay • Non-life insurance
to the seller; In consideration of the sale, companies
barter or exchange of the goods or • Surety, fidelity,
properties, excluding VAT; the excise indemnity and bonding
tax, if any, on such goods shall form part companies
of the gross selling price. § Similar services regardless of
• Document to support sale of goods – VAT invoice whether or not the performance
• Sale of Services thereof calls for the exercise or
o Performance of all kinds of services in the use of the physical or mental
Philippines for others for a fee, faculties
remuneration or consideration, § Supply of scientific, technical or
including those performed or rendered commercial knowledge or
by: information; Any assistance that
§ Construction and service is ancillary and subsidiary to and
contractors is furnished as a means of
§ Stock, real estate, commercial, enabling the application or
customs, and immigration enjoyment of any such property
brokers or right as mentioned in subpar
§ Lessors or property whether 2 or any knowledge or
personal or real information mentioned in
§ Warehousing services subpar 3.
§ Lessors or distributors of § Supply of services by a non-
cinematographic films resident person or his employee
§ Persons engaged in milling, in connection with the use of
processing, manufacturing or property or rights belonging to
repacking goods for others or the installation or operation of
§ Proprietors, operators or keepers any brand, machinery or other
of hotels, motels, rest houses, apparatus purchased from such
pension houses, inns, resorts non-resident person; Technical
§ Operators of restaurants, advice, assistance or services
refreshment parlors, cafes and rendered in connection with
other eating places, including technical management or
clubs and caterers administration of any scientific,
§ Dealers in securities, lending industrial or commercial
investors undertaking, venture, project or
scheme
§ Transportation contractors on
their transport of goods or § Lease or use of or the right or
cargoes, including persons who privilege to use
transport goods or cargoes for • Any copyright, patent,
hire and other domestic common design or model, plan,
carriers by LAND relative to secret formula or
their transport of goods or process, goodwill,
cargoes trademark, trade brand
§ Common carriers by air and sea or other like property or
relative to their transport of right
PASSENGERS, GOODS, or • Any industrial,
CARGOES from one place in the commercial or scientific
Philippines to another place in equipment
the Philippines • Motion picture films,
§ Sales of electricity by generation films, tapes and discs
companies, transmission by any • Radio, television,
entity and distribution satellite transmission
companies, including electric and cable television time
cooperatives • Lease of properties shall be subject to the tax
§ Services of franchise grantees of herein imposed irrespective of the place where
electric utilities. the contract of lease or licensing agreement was
AB Page 64 of 69
executed if the property is leased or used in the § BOI registered companies and
PH other special laws
o Tax Base = Gross receipt (the total o Sale of goods, supplies, equipment and
amount of money or its equivalent fuel to persons engaged in international
representing the contract, price, shipping or international air transport
compensation, service fee, rental or operations
royalty, including the amount charged o Sales to persons or entities whose
for materials supplied with the services, exemption under special laws or
and deposits and advanced payments international agreements to which the
actually constructively received during PH is a signatory effectively subjects
the taxable quarter.) such sales to zero rate
o Document to support sale of services =
VAT Official receipts • On Sale of Services
o NOTE: Patent, copyright, etch both o Processing, manufacturing or repacking
appeared under goods and services, this goods for other persons doing business
of it’s the product itself that is the subject outside the PH which goods are
of sale, it will be treated as sale of goods subsequently exported
but if only the use thereof is involved, it o Services other than in preceding
will be treated as sale of service. paragraph rendered to a person engaged
in business conducted outside the PH or
GRAB DRIVERS, JEEPNEY DRIVERS AND to a non-resident person not engaged in
OPERATORS AND BUS DRIVERS are exempt from business but who is outside the PH when
VAT but are subject to Percentage Taxes. the services are performed.
o Services rendered to persons or entities
May a VAT exempt entity opt to be registered for VAT? whose exemption under special laws or
Yes. A VAT exempt person may elect that pertaining to international agreements to which the
VAT exemption not apply to its sales of goods, PH is a signatory effectively subjects the
properties or services; provided that an election made supply of such service to zero rate
under this shall be irrevocable for a period of 3 years o Services rendered to persons engaged in
from the quarter the election was made. international shipping or international
air transport operations including leases
Zero Rated Transactions of property for use thereof
• On Sale of Goods o Services performed by subcontractors
o Export Sales and/or contractors in processing,
§ Sale and actual shipment of converting or manufacturing goods for
goods from PH to foreign an enterprise whose export sales exceed
country 70% of total annual production
§ Paid for in acceptable foreign o Transport of passengers and cargo by
currency domestic AIR or SEA vessels from the PH
§ Accounted for in accordance to foreign country
with the rules and regulations of o Sale of power and fuel generated
the BSP through renewable sources of energy
o Sale and delivery of goods to registered such as but not limited to biomass, solar,
enterprises within a separated customs wind, hydropower, geothermal, ocean
territory under special laws, and energy and other emerging energy
registered enterprises within TIEZA sources using technologies such as fuel
zones cells and hydrogen fuels
o Indirect export sales o Services rendered to registered
§ Sale or raw materials or enterprises with a separated customs
packaging materials to a non- territory under special laws and those
resident buyer for delivery to a registered enterprises within TIEZA
resident local export-oriented zones
enterprise to be used in
manufacturing, processing, Zero- Rated Effective Zero-Rated
packing or repacking in the PH Refers to export of goods Refers to indirect exports
of said buyer’s goods and paid and supply of services where the goods or
for in acceptable foreign services are supplied to
currency local customers who
§ Sale of raw materials or actually export their
packaging materials toe export- goods to foreign
oriented enterprise whose destinations
export sales exceed 70% of total Primarily benefits the Benefits that local
annual production exporters where its sales purchaser/exporter, since
AB Page 65 of 69
are not made subject to no VAT will be shifted to • Tax base

VAT while its input tax it by the local supplier. o Output tax shall be based on market
on it VAT purchases are value of the goods deemed sold at the
allowed to be claimed for time of occurrence of transactions
refund o In case of retirement or cessation of
business, the tax base shall be the
VAT on Importation acquisition cost or the current market
• The VAT due on the importation is levied, price of the goods or properties,
assessed and collected from the importer/buyer, whichever is lower.
before release of imported goods from customs o In case of a sale where the gross selling
custody price is unreasonably lower than the fair
• The VAT paid on importation is treated as INPUT market value, the actual market value
tax by the VAT registered importer which can be shall be the tax base
applied as credit against its VAT liability
• The 12% VAT shall be applicable to all DONOR’S TAX
importations withdrawn from customs territory, Only nonresident alien donor and a nonresident foreign
regardless of whether the importer is VAT corporation donor are subject to Donor’s Tax for
registered or not donations made covering properties situated in the
• The same also applies to technical importation of Philippines. All other donors are subject to Donor’s Tax
goods sold by a person located in Special for donations made covering properties wherever
Economic Zones to a customer located in a situated.
customs territory.
The tax rate has been reduced to 6% effective January 1,
Transfer of goods by tax exempt persons 2018. For Donor’s Tax, the first P250,000 of the donor’s
In case of tax-free importation of goods into the PH, by net gift is exempt from Donor’s Tax.
persons, entities or agencies exempt from tax.
Rule on reciprocity applies, which exempts transmission
• If such tax exempt articles are subsequently sold, from donor’s tax, if the following conditions are present:
transferred or exchanged in the PH 1. Donor is a nonresident alien or nonresident
• To non-exempt persons foreign corporation
• The purchaser, transferee, or recipients shall be 2. The subject property is intangible personal
considered the importers thereof property situated in the Philippines; and
• Who shall be liable for the taxes due on such 3. The donor at the time of the donation was a
importation resident of a foreign country which at the time of
the donation did not impose a transfer tax of any
Transaction Deemed Sale character, in respect of intangible property of
• Transfer or consumption not in the course of citizens of the PH not residing in that foreign
business, of goods or properties originally country; or if the laws of the foreign country of
intended for sale or for use in the course of which the donor was a resident at the time of
business: donation allows a similar exemption from
o Donation of relief goods coming from transfer tax of every character or description in
inventory of donor, like water, sardines, respect of intangible personal property owned by
etc of manufacturers/ distributors. citizens of the Philippines not residing in that
Retailers foreign country.
o VAT exempt if donation is made to
exempt entities The valuation of the properties subject to Donor’s Tax is
• Distribution or transfer to the fair market value at the time of donation.
o Shareholders or investors as share in the
profits of the VAT registered person; The deadline to pay the Donor’s Tax is 30 days from the
o Creditors in payment of debt date the donation is made.
• Consignment of goods if actual sale is not made The following are exempt from Donor’s Tax:
within 60 days following the date goods were 1. Gifts made to or for the use of the National
consigned; consigned goods returned by Government or any entity created by any of its
consignee within the 60 day period are not agencies which is not conducted for profit, or to
deemed sold any political subdivision of the said Government;
• Retirement from or cessation of business with and
respect to inventories of taxable goods existing as 2. Gifts in favor of an educational and/or
of such retirement or cessation charitable, religious, cultural or social welfare
o Change of ownership corporation, institution, accredited
o Dissolution of partnership and creation nongovernment organization, trust or
of new partnership philanthropic organization or research
institutions or organization: Provided, however,
AB Page 66 of 69
that more than 30 percent of said gifts shall be

used by such done for administrative purposes. REMEDIES
For the purpose of the exemption, a non-profit Importance: It is worthwhile to note that much in the
educational and/or charitable corporation, same way that tax remedies exist to enhance the
institution, accredited nongovernment Government’s tax collection efforts, they too, come in as
organization, trust or philanthropic organization safeguards against arbitrary action. While taxes are the
and/or research institution or organization’s is a lifeblood of the Government and should be collected
school, college or university and/or charitable without unnecessary hindrance, such collection must
corporation, accredited nongovernment nevertheless be made in accordance with law as any
organization, trust or philanthropic organization arbitrariness will negate the very reason for Government
and/or research institution or organization, itself. (Marcos II v CA)
incorporated as a non-stock entity paying no
dividend, governed by trustees who receive no
JURISDICTION OF COURTS
compensation, and devoting all its income,
whether students fees or gifts, donation,
subsidies or other forms of philanthropy, to the Jurisdiction of Courts over civil tax cases (for collection
accomplishment and promotion of the purposes of taxes)
enumerated in its Articles of Incorporation. Court of Tax Appeals
• Exclusive Original Jurisdiction on civil taxes
If a person sells property below its FMV, except for real where the principal amount of taxes and fees
property subject to the 6% CGT, the difference between exclusive of charges and penalties claimed is
the FMV and the selling price is considered a donation P1,000,000 and above
subject to donor’s tax. The sale is considered a transfer for
less than an adequate and full consideration in money or Regional Trial Court, Metropolitan Trial Court and
money’s worth. Municipal Trial Court
• Original jurisdiction on civil tax cases, if less than
However, even if the sale is made below its FMV the P1,000,000 or where no specified amount is
transfer will be considered as made for an adequate and claimed (injunction)
full consideration in money or money’s worth if the sale
is (a) bona fide; (b) at arm’s length; and (c) free from any Jurisdiction of Courts over criminal tax cases
donative intent. Thus, the transaction will not be subject
Court of Tax Appeals
to donor’s tax.
• Exclusive Original jurisdiction over criminal
Any contribution in cash or in kind to any candidate, violations arising from the NIRC and laws
political party or coalition of parties for campaign administered by the BIR where the principal
purposes, provided the same is duly reported to the amount of taxes and fees exclusive of charges and
COMELEC, is exempt from Donor’s Tax. penalties claimed is P1,000,000 and above
Unutilized/excess campaign funds, that is, campaign Regional Trial Court, Metropolitan Trial Court and
contributions net of the candidate’s campaign Municipal Trial Court
expenditures, shall be considered as subject to income tax. • Original jurisdiction over criminal violations
Corollary thereto, failure to submit statement of under the NIRC, if less than P1,000,000 or where
expenditures to the COMELEC subjects the entire no specified amount is claimed.
contributions to income tax. Since, the candidate will be
precluded from claiming expenditures as deductions Principles in Criminal Actions
from his campaign contributions. Assessment is not a pre-requisite in the filing of a
criminal action
Political contributions which are not utilized during the • An assessment of a deficiency is not necessary to
campaign period is subject to Donor’s tax. Also, political a criminal prosecution for willful attempt to
contributions made by a foreign corporation is subject to defeat and evade the income tax. A crime is
Donor’s tax. complete when the violator has knowingly and
willfully filed a fraudulent return with intent to
Renunciation by the surviving spouse of his/her share in evade and defeat the tax. The perpetration of the
the conjugal partnership or absolute community after the crime is grounded upon knowledge on the part
dissolution of marriage in favor of the heirs of the of the taxpayer that he has made an inaccurate
deceased spouse or any other person is subject to Donor’s return, and the government’s failure to discover
Tax. the error and promptly to assess has no
connections with commission of the crime.
General Renunciation by an heir, including the surviving
spouse, of his/her share in the hereditary estate is not The filing of a criminal action is not an implied
subject to Donor’s Tax, unless specifically and assessment by the CIR
categorically done in favor of identified heir/s to the
• An assessment contains not only a computation
exclusion or disadvantage of the other co-heirs in the
of tax liabilities, but also a demand for payment
hereditary estate.
AB Page 67 of 69
within a prescribed period. It also signals the time PRESCRIPTION

when penalties and interest begin to accrue
against the taxpayer. To enable the taxpayer to Period of Limitation on Collection
determine his remedies thereon, due process 1. If there is an assessment, the period shall be 5
requires that it must be served on and received years from the date of assessment.
by the taxpayer. Accordingly, an affidavit, which 2. In the absence of an assessment, and a return was
was executed by revenue officers stating the tax filed as long as it not false or fraudulent, the
liabilities of a taxpayer and attached to a criminal period is 5 years form the date the tax is due.
complaint for tax evasion, cannot be deemed an
assessment that can be questioned before the Exceptions to the Prescriptive Periods (on Assessment
Court of Tax Appeals. and Collection)
1. False or fraudulent return, omission to file a
Court of Tax Appeals return
• Exclusive Appellate Jurisdiction 2. If there is an agreement in writing to extend the
o Decisions of the Commissioner of period to assess or to collect
Internal Revenue involving:
§ Disputed assessments Requisites of a Valid Waiver
§ Refunds of internal revenue 1. The waiver must not be indefinite. The phrase
taxes, fees or other charges “but not after ____ 20__, must be filled up.
§ Other matters arising under the 2. The waiver must be signed by the TP or his duly
NIRC or law administered by authorized representative.
BIR 3. The waiver should be duly notarized.
o Inaction by the Commissioner of Internal 4. The Cir or officer authorized by him must sign
Revenue involving” the waiver indication that the BIR as accepted
§ Disputed assessments and agreed to the waiver.
§ Refunds of internal revenue 5. Both the execution by the TP and acceptance by
taxes, fees or other charges ICR be made before expiration of the period of
prescription.
§ Other matters arising under the
6. A copy must be served to the taxpayer.
NIRC or law administered by
BIR
o Decisions orders or resolution of the RTC Suspension of the Prescriptive Periods to Assess or
in local tax cases originally decided or Collect
resolved by them in the exercise of their 1. For the period where the Commissioner or
original or appellate jurisdiction prohibited from making the assessment or
o Decisions of the Commissioner of beginning distraint or levy or a proceeding in
Customs involving: court and 60 days thereafter
§ Liability for customs duties, fees 2. When the TP requests for a reinvestigation which
or other money charges is granted by the Commissioner. A request for
§ Seizure, detention or release of reconsideration will not suspend the prescriptive
property affected, including period to collect.
fines related thereto 3. When the taxpayer cannot be located in the
§ Other matters arising under the address given by him in the return filed upon
Customs Law or law which a tax is being assessed or collected.
administered by BOC 4. When warrant of distraint or levy is duly served
o Decisions of the CBAA in the exercise of and no property could be located.
its appellate jurisdiction 5. When the taxpayer is out of the PH.
o Decisions of the Secretary of Finance on
customs cases elevated to him Suspension of Prescription
automatically for review from decisions To suspend the running of the prescriptive period to
of the Commissioner of Customs which collect on the ground of request for reinvestigation by the
are adverse to the government under Sec taxpayer, two requisites must concur:
2315 of the Tariff and Customs Code a. That the TP requests for reinvestigation, and
o Decisions of the Secretary of Trade and b. That the Commissioner grants such request.
Industry and Secretary of Agriculture
§ Involving dumping and If the request was ignored or denied, the same does not
countervailing duties under Sec stall the running of the prescriptive period.
301 and 302 of the TCC and RA
8800. Assessment
It is a formal notice to the taxpayer stating that the
amount thereon is due as a tax and containing a demand
for the payment thereof.
AB Page 68 of 69
It contains: A protest must be filed within thirty (30) days from

1. Computation of tax liabilities receipt of the final assessment notice.
2. A demand for payment within a prescribed
period
A protest may come in two (2) forms:
An affidavit, executed by revenue officers stating the tax
liabilities of a taxpayer and attached to a criminal
complaint for tax evasion, cannot be deemed an a. Request for Reinvestigation – where the
taxpayer would introduce newly discovered
assessment that can be questioned before the CTA.
evidence;
b. Request for Reconsideration – where the
Requisites of a valid assessment
taxpayer would invoke misappreciation of
1. It must be made within the prescriptive period to facts, misapplication of law or both.
assess
2. There must be a preliminary assessment
previously issued except those instances allowed
by law A protest filed out of time will make the assessment final,
3. The TP must be informed in writing about the executory and demandable. The late protest will not
facts and the law on which the assessment is suspend the prescriptive period to collect.
based.
4. It must be served upon TP or any of his *END*
authorized representatives.
When a Preliminary Assessment not required

1. Assessment is a result of mathematical error in
computation appearing on the face of the return
2. Excess taxes per return was opted to be refunded but
found to have been carried over
3. Under remittance of taxes withheld
4. Nonpayment of excise taxes one excisable articles
found in the possession of the taxpayer
5. Goods imported by a tax-exempt person but found in
the possession of a taxable person.
Period of Limitation on Assessment

• Within three (3) years after the deadline for filing of
the return. Where the return is filed beyond the
deadline, the three year period shall be counted from
the day the return was filed. (Sec 203)
• If no return is filed or a return was filed but said
return is false or fraudulent, assessment shall be
made within ten years from discovery of the omission
to file or discovery of the falsity or fraud. (Sec 203)
When is an assessment deemed made?

It is the date when the demand letter or notice of
assessment is released, mailed or sent to the taxpayer that
constitutes an actual assessment
REMEDIES AGAINST AN ASSESSMENT

• Remedy before payment – this comes in the form of
administrative protest (Sec 228). Only a FAN can be
the subject of a PROTEST.
• Remedy after payment – Claim for refund or
erroneously paid taxes pursuant to Sec 204 and Sec
229 of the NIRC.
• Payment under Protest – This is not required under
the NIRC. A taxpayer must always choose between
the two options of PROTEST or REFUND.
PROTESTING AN ASSESSMENT
AB Page 69 of 69

Outline A - The Law Pertaining To The State and Its Relationship With Its Citizens

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Outline A - The Law Pertaining To The State and Its Relationship With Its Citizens

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THE LAW PERTAINING TO THE STATE

AB AND ITS RELATIONSHIP WITH ITS NOTES

CHECKS AND BALANCES

The Philippine government is divided into three (3)

B. Ocampo v. Enriquez CHARACTERISTICS:

TERRITORIAL, PERSONAL, AND

Personal jurisdiction – authority of the state over its

Extraterritorial jurisdiction – authority of the state over

Pambansa 880. BP 880 also orders political units to set up

RIGHTS DURING EXPROPRIATION Local government has two characters:

2. Objective Test: His/Her expectation of privacy must be

b. Not all non-justiciable are political

Three functions of judicial review: Period of Deciding Cases:

Natural-Born citizen Natural-born citizen years immediately

At least 35 At least 35 At least 35 years at

XPN: The president may be sued if the act is one not

8. Power to call a special election, for President and

The Congress shall, at ten o’clock in the morning of the

(4) In case the verified complaint or resolution of impeachment

2. treason; (OIC), Office of the Administrator, MARINA, in

EXECUTIVE While all other appointive officials in the civil service

g) 2010 Presidential power to appoint. It is relatively easy to

Issue: Petitioners have failed to show compliance with all four

Issue: In March 2009, Governor Abdusakur Mahail Tan, the

in Lagman vs. Medialdiea; in that case, the SC said that

Pardon is defined as "an act of grace, proceeding from the

Held: The third preambular clause of the pardon did not

such visits of military personnel, and further defines the Discussion:

iii. sole judge in all questions involving elections, qualifications

entity engaged in the gathering, b. Pleading, practice, procedure in all courts;

amendment will ensue. Thereafter, a motion to close the for another 25

2. Grandfather Test – Where percentage of Filipino a. As to Parties. Only the President, in

Requisites for a valid service contract

International Law certain provisions of the treaty in their application to

ARTICLE 1702. In case of doubt, all labor legislation and all

1. installation of labor-saving devices 4. Other causes ANALOGOUS to any of the

2. REDUNDANCY (superfluity in the performance DISMISSAL, PRESENCE OF JUST/AUTHORIZED

Who cannot Form, Join or assist labor organization

a. right to CONDUCT business 1) imposed by LAW

b. right to PRESCRIBE RULES 2) provisions in the COLLECTIVE

• Theoretical Justice – taxes must be based on

Taxation Law Theory and Basis of Taxation

3. Payment – act of compliance by the taxpayer, INCOME TAX

FEATURES OF THE PHILIPPINE INCOME TAX LAW

§ Not engaged in trade or business q Calendar year – an accounting period of 12

XPN: taxable income shall be computed based on the

In the course of trade of business – means the regular

§ Radio, Television, satellite § Telephone and telegraph, radio

are not made subject to no VAT will be shifted to • Tax base

that more than 30 percent of said gifts shall be

within a prescribed period. It also signals the time PRESCRIPTION

It contains: A protest must be filed within thirty (30) days from

When a Preliminary Assessment not required

Period of Limitation on Assessment

When is an assessment deemed made?

REMEDIES AGAINST AN ASSESSMENT

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