Finals - Poli Review.2014-2015

So in case of public officer, your answer would depend on the case;
second, the law being applied to the case. So for example, the case
LAW ON PUBLIC OFFICERS involves criminal law, refer to the Revised Penal Code under the Title
POLITICAL LAW REVIEW (A.Y. 2014 -2015) Crimes Committed by Public Officers. Sec. 203 of the RPC in fact
DBL Discussion, Slides, New Jurisprudence defines public officer for purposes of criminal law. If Anti-Graft Case,
refer to RA 3019 for the definition of Public Officer. As to plunder, refer
to the law on Plunder for the definition of Public Officer. If this
We’ll talk about Law on Public Officers. The problem with this subject question is asked in the bar exam, your answer is quite long. If you
is that the sources in law are quite scattered, unlike in Administrative can’t remember, just apply the elements of a public officer as
Law where you can rely on the Admin Code as your core statute. So if enunciated in the case of Laurel vs. Desierto. [Details of different
you look at the outline, you don’t see a lot of statutory provisions but definitions and Laurel elements in the sections to follow]
you will see cases instead. The study on Law of Public Officers would
be more a doctrinal study of law - the study will be based on doctrines Sec. 2(14), Introductory Provisions, Administrative Code:
and principles. And in the bar exams, most questions also come from
these topics which I have selected for your outline. So if there are Officer – as distinguished from “clerk” or “employee”, refers
questions not in the outline, those are just rare questions (occasional to a person whose duties not being of a clerical or manual nature,
tripping tripping sa examiner). involves the exercise of discretion in the performance of the
functions of the government. When used with reference to a
PUBLIC OFFICE AND PUBLIC OFFICERS; DE FACTO AND DE person having authority to do a particular act or perform a particular
JURE PUBLIC OFFICERS; SALARY function in the exercise of governmental power, “officer” includes any
government employee, agent or body having authority to do the act
PUBLIC OFFICERS, OFFICE, OFFICIALS or exercise that function.
In your outline, we begin with the case of Secretary of DOTC vs. So an “officer” may be distinguished from a “clerk” or an “employee”
Mabalot, a case which you have already studied in Admin law, and because an officer involves the exercise of discretion in the
this case simply tells us that a public office, if we are referring to performance of the functions of the government. Notice that it involves
public office as an office similar to an administrative agency, indeed discretion, so higher threshold if we compare it with administrative
can be created by constitution, law or by authority of law. Because as code.
you will see, a public office may pertain to a position held by a public
officer or it may refer to a functional unit or an office, an agency, so Whereas in the case of a “clerk” or a mere “employee”, there is no
there are 2 conceptions therefore of a public office. discretion involved in the exercise of authority but the function is
merely clerical or manual (e.g. like the function of whether or not you’ll
Now, in the first slide, I have presented four questions that will guide be allowed to enter the building. This is the function of the security
you in studying first the concept of public office or public officer. These guard. NO ID, NO ENTRY. If you don’t have an ID, you’re asking for an
can be probable questions also in the bar exams, questions such as: exercise of discretion. That security guard that is stationed there
cannot decide on that. What will the security guard do? He should ask
1. What is a “public office”? the head of the security office or whoever is in charge with that issue.
2. Who is a “public officer”? That person in charge has the discretion.)
3. Who is a “public official”?
4. What is the importance of knowing the meaning of a “public Q: How do you distinguish a “Public Officer” from a “Public Official”?
officer”?
Actually, you can use them interchangeably. Look at RA 6713. This
refers to the code of conduct of public officials.
Sec. 2(9), Introductory Provisions of the Administrative Code:
Sec. 3(b) of Republic Act No. 6713
Office refers, within the framework of governmental organization, to
any major FUNCTIONAL UNIT of a department or bureau including “Public Officials” include elective and appointive officials
regional offices. IT MAY ALSO REFER TO ANY POSITION HELD OR and employees, permanent or temporary, whether in the career or
OCCUPIED BY INDIVIDUAL PERSONS, WHOSE FUNCTIONS ARE non-career service including military and police personnel, whether or
DEFINED BY LAW OR REGULATION. not they receive compensation, regardless of amount.
Observe also the definition under Article 203 of the Revised Penal
Example: Agency is a public office. The position of the mayor is also a Code. Note that the definition is all encompassing. “Of any rank or
public office. So either it is a position held by an individual with class”. So the distinction of “officer”, of “clerk” or “employee” in the
functions defined by law or regulation or a functional unit. That’s the administrative code is not applicable for purposes of the Revised Penal
meaning of a public office. Code.
The problematic concept however is the concept of public officer.

Why is that? Because the concept of public officer is not found in the
Constitution. The Administrative Code is also not specific as to public
officer. There may be a distinction between an officer and a clerk or an
officer and an employee. But there is no complete or categorical
description of a public officer.
USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers, Local Gov’t Law, & Public Int’l Law 1
Article 203 of the RPC SOVEREIGN FUNCTION. Even by this characteristic alone, the SC ruled
that the apposition of Laurel was considered a public office.
“Who are public officers” – For purposes of applying the provisions of
this and the preceding titles of this book, any person who, by direct Because what was argument of Doy Laurel, invoking Torio v.
provision of the law, popular election or appointment by Fontanilla. In Torio v. Fontanilla, fiesta celebration is proprietary. Now,
competent authority, shall take part in the performance of public by analogy kuno, centennial celebration should also be proprietary. So
functions in the Government of the Philippine Islands, or shall perform no sovereign function involved.
in said Government or in any of its branches public duties as an
employee, agent, or subordinate official, of any rank or class, shall SC disagreed. A town fiesta is different from a Centennial Celebration
be deemed to be a public officer. because it is a celebration of our birth as a nation. Also, definitely, dili
ni siya legislative dili sad judicial; SC concluded executive function ni
Look at the definition of a public officer in the Plunder Law and siya because this involves implementation of a constitutional mandate
contrast it with the case of Laurel vs. Desierto. one of which is to be loyal to our cultural heritage. And one way of
being loyal and therefore give importance to our cultural heritage is by
R.A. 7080 (Plunder Law): celebrating centennial. So, kay kuno tungod nag implement siya ug
Constitutional mandate, involves na siya ug sovereign function.
Sec. 1(a):
“any person holding any public office in the Government of the So you have the following characteristics, but the number 1
Republic of the Philippines by virtue of an appointment, election or characteristic is the most important. So it’s possible therefore nga
contract.” basta naa la’y delegation of sovereign function, pero wala’y
compensation puwede pa siya public office. Even if ad-hoc, just like
what happened here – mu-end lang siya after Centennial celebration,
Characteristics of PUBLIC OFFICE: public office lang gihapon. For as long as the first characteristic of
delegation of sovereign function can be established. TN of Laurel v.
 Delegation of sovereign functions Desierto.
 Creation by law and not by contract
Now one importance of knowing the concept of public officer is of
 An oath
course the jurisdiction of the Ombudsman. The Ombudsman exercises
 Salary/Compensation (but, incl. “honorary”)
jurisdiction over public officials and employees of GOCC WITH
 Continuance of the position
ORIGINAL CHARTERS.
 Scope of duties
 Designation of the position as an office.
Importance of the term “public officer”
[Laurel v. Desierto, April 12, 2002]
The Office of the Ombudsman exercises jurisdiction over
According to Mechem in his book Law on Public Officers, one of the
public officials/employees of GOCCs with original charters.
essential characteristics of the public office as enumerated in the case
of Laurel vs. Desierto, “Creation by law and not by contract”, but
It can only investigate and prosecute acts of the
if you look at the Plunder Law, “any person holding any public office in
officials/employees of government corporations. Although the
the Government of the Republic of the Philippines by virtue of an
government later on acquired the controlling interest in PAL, the fact
appointment, election or contract.”
remains that the latter did not have an “original charter.” [Khan vs.
Ombudsman, 2006 (see also Carandang vs. Ombudsman, 2011)]
So if you are assigned/designated a specific function, but not by
reason of an already existing office or position created by law but only
This was the case when PAL was not yet reverted to Private
for the reason of a contract entered into by the government, you can
Ownership. Na-sequester man gud at one point so na public for a
also be held liable for plunder. But that’s for plunder.
while and then nahimo na pud siyang private. So there was an
So if we talk about the concept of public office in general, we rely on argument because more than 51% of the shares were then held by
the decision of the Supreme Court in the case of Laurel vs. Desierto. GSIS, nahimo na siyang public office. SC disagreed because, yes GOCC
This case is also cited in the case of Khan vs. Ombudsman in 2006. siya but PAL did not have an original charter because it was
incorporated under the corporation code rather than a law having been
Former Vice President Laurel was appointed as chairman of the passed and gave it its own entity (personality).
national centennial commission; this is an ad hoc commission because
it is only for the centennial celebration of 1998. When there was the PUBLIC OFFICE NOT A PROPERTY RIGHT
Expo issue, a case was filed before the office of the ombudsman and
Laurel was impleaded. Laurel argues that the committee is merely an Another important principle is the idea of a public office as not a
ad hoc, and besides, there was not even a clear remuneration from the property right (BAR). Public office is personal to the incumbent and is
government, there is no continuation of position, that’s why it’s ad not a property which passes to his heirs.
hoc. Therefore, it is not a public office. And if it’s not a public office,
the Ombudsman cannot initiate a case before the Sandiganbayan .
such initiation of complaint is questioned by Laurel.
Now here, the Supreme Court explained the characteristics of a public

office. Very notable discussion of the court was from the opinion of
Mechem, the singular most important (not saying that it is the ONLY
but just MOST IMPORTANT) is the first one: DELEGATION OF
Public Office, not a Property! Public Office, not a Property; Exception
“Public office is personal to the incumbent and is not a  A public office is not property within the sense of the
property which passes to his heirs.” (De la Victoria vs. Comelec, constitutional guaranties of due process of law, but is a
199 SCRA 561 [1991]) The heirs may no longer prosecute the public trust or agency; (Libanan vs. Sandiganbayan [1994])
deceased protestee’s counter-claim for damages against the
protestant for that was extinguished when death terminated  However, an incumbent’s right to office may be considered
his right to occupy the contested office. (Abeja vs. Judge Tanada “property” within the protection of due process in
[1994]) controversies relating to the question as to who of two (2)
persons is entitled thereto. (The General Manager, PPA vs.
The issue in both De la Victoria v. Comelec and Abeja v. Judge Monserate [2002])
Tañada was: election protest ang protestant ni-claim ug damages.
Ang protestee mifile ug answer also with a counterclaim for damages. Can you think of an instance where atleast in that instance public
Ang natabo in both cases, namatay ang protestee. In the case of the office may be treated as one involving property and if “yes” what is the
De La Victoria v. Comelec the protestant was quick enough to waive its reasoning of the court? Yaw kalimte nga naa exception to the rule that
claim for damages para wala na’y personality ang heirs. But even then, public office is not a property.
SC said, upon the death of the protestee, his right to occupy the
contested office has been terminated and of course because that is not It does not necessarily follow that if one invokes security of tenure,
a property, it cannot be transmitted to the heirs. that publice office is treated as a property. So it is proper to invoke
due process of law under the constitution and an incumbent’s right to
In the case of Abeja, the widow, supposedly substituted. But it’s not office will be considered “property” within the protection of due
similar to your regular civil cases where there will be substitution of process in controversies relating to the position as to who of two
heirs in case the litigant dies. That’s one important principle. This is persons is entitled to the office. Do you know why?
the general rule: Public Office is not a property.
Kung naa na magcontest duha you can invoke due process to the
That is why, in the case of Libanan v. Sandiganbayan, there was a extent and pwede sya i-treat as property, it is because of emoluments
suspension of a public officer. And when there was an allegation of to the office. Okay ra man na ikaw lang isa then you get it pero if duha
lack of notice in the imposition of the suspension, the respondent there gani the question is kinsa nila duha ang entitled to the emolument like
argued that there was denial of the right to due process. Unia ug tan- salary. So to that extent, it should be treated as property and
awon na nimong right to due process sa Constitution, it says, “No therefore, an invocation of Sec.1 of ARTICLE III would be proper in
person shall be deprived of life, liberty or property without due process that regard. We are just talking to the poper perspective of the
of law”. So when you invoke “due process”, and when you use the invocation ba of the principle.
term “due process” then you are invoking section Article 3 of the
constitution. That’s the due process clause and that applies only if DE JURE VS. DE FACTO OFFICER; SALARY
what is involved is life, liberty or property.
De Jure Officer
Definitely kung public office ang hisgutan, dili na life, liberty. Ang
pinakaclose niana “property”. But SC said that’s wrong invocation of A de jure officer is one who is in all respects legally appointed or
the provision of the constitution because if you say, no notice was elected and qualified to exercise the office. The election or
given and this involves public office, do not invoke section 1 of article appointment complied with all the requirements of law.
3 because property is not involved here. Kanang right to due process,
applicable ra na kung property involved. So what is applicable here? Wai question sa de jure kai sayun ra na. Basta qualified siya, the
The basic tenet of “fair play”. requirements of the law are complied with - de jure. Both substantive
and procedural requirements complied with. Substantive: the
Mao nay ge ingon ni Justice Mendoza na he clarified na if emplopyer qualifications; procedural: the process of appointment and taking of
fails to comply with the two notice requirement, the show cause memo oath. Because when you’re talking here of public office, wala public
on the notice of termination, the twin notice rule, you should not claim office na wala nag require of taking of oath.
that there is violation of due process because the invocation of due
process is appropriate only if you invoke it against the state or its In the Constitution, under the article on civil service, it is a
agents. The bill of rights primarily exist precisely to limit the powers of constitutional requirement that before you hold an office, you must
the government so you can invoke specific provisions of Article III if take an oath. That is to highlight the idea of public office as public
you are using it against the state or its agents. So if it is not the state trust and so establishing the fiduciary relationship between the people
or its agent that is involved in the case, you look for another principle and the public offical. That fiduciary relationship mandates that the
of law that is similar. Like basic tenet of fair play or basic principle of public officer becomes accountable to the people. It is a procedural
reasonableness, so you don’t use na the term “it is a violation of due requirement. If you comply with the substantive and procedural, the
process” if the requirement of twin notice rule is not complied with. officer is de jure. If one is not complied, de facto.
However, in the case of the General Manager of Phil. Port

Authority vs. Monserate the Supreme court said:
Problem
*cannot be made to reimburse; because his acts are valid – just like
X and Y were candidates for Mayor in the Municipality of Z. X won the Operative Fact Doctrine, considered valid because he wasn’t then
and was duly proclaimed. However, the Comelec disqualified X later. declared as not qualified.
On June 30, 2013, A, X’s wife, assumed the office of the Mayor
purportedly as X’s substitute. On June 30, 2014, A was ordered Problem
removed from office. She then voluntarily stepped down. Is A entitled
to salary for the period June 30, 2013 – June 30, 2014? X and Y were candidates for Mayor in the Municipality of Z. X won and
was duly proclaimed. An election protest was immediately filed by Y.
The problem in the bar exam, it won’t categorically state that this is a On June 30, 2013, X assumed office. On June 30, 2014, the election
problem on public officers, it will be mixed with other subjects such as contest filed by Y was resolved in Y’s favor. The decision already
election law etc. It may require the application of election law, admin became final and executory. X voluntarily stepped down as ordered.
law, constitutional law yet the question is on the law on public officers
but requires resolving the other issues first. Is X entitled to the salary he received? Should X reimburse Y of the
salary he received?
Our idea is that a de facto officer is entitled to the salaries for the
services rendered. Otherwise, it is unfair and unreasonable; it’s not a In Sampayan v. Daza, de facto officer is entitled to emoluments for
sound rule, not to give the person who has at least served 1 year. actual services rendered.
Yes? The answer is No.
Kung entitled siya di na siya mo-reimburse kay entitledd man siya. But
The answer is actually to determine first whether the officer is a de what about the principle, the exception to the principle laid down in
facto or a usurper. Sampayan vs. Daza…
De facto officer has a colorable compliance of the substantive and Q: A de facto officer is entitled to emoluments for actual services
procedural requirements and has apparent authority. Examples of a de rendered. What is the exception?
facto officer:
A: Exception is when there is a de jure.
- one who hasn’t taken oath; or
- one who is disqualified: held office but not Filipino citizen. Only Is that rule applicable in this problem? Do you consider Y as the de
after 2-3 years of holding office did the final decision come out jure officer?
declaring his citizenship (not Filipino) as Thai. There is colorable
compliance here. He even took oath. Sakto man ka sa imong answer na: Sir kana na principle Sampayan
mao na siyay exception but the incumbent can recover. Mao man na.
But in the case of the wife, dili sad siguro na mahitabo. Ang wife o, Kung naay incumbent, ang de facto ni hold siya sa office at his own
unsaon pa man ug substitute…humana man ang proclamation, risk and therefore whatever, emolument he may have received and
humana ang election. Niadto lang gyud ang wife kaya bi niya ug iyaha; naay de jure officer, the de jure officer is entitled to the salary. So i-
murag manager sa bangko iyahang bana. Siya’y ga-hawd-hawd didto. reimburse niya. Okay?
 Obviously, in the problem, the wife is a usurper.
But, the “incumbent” can recover!
What I’m trying to say is you should figure out one from the other -
 An incumbent of a public office may recover from a de
De Facto Officer vs. Usurper facto officer the salary received by the latter during the
time of his wrongful tenure, even though he (the de facto
A “de facto officer” has color of right or title to the officer) occupied the office in good faith and under color of title.
office or has apparent authority to hold the office and has
done so in good faith, while a “usurper” has neither lawful  A de facto officer, not having a good title, takes the salaries at his
title nor color of right or title to the office; the act of a de risk and must, therefore, account to the de jure officer for
facto officer is valid as if it was done by a de jure officer but whatever salary he received during the period of his wrongful
that of a usurper is absolutely null and void; the former may tenure.
be removed through a direct proceeding only.
 The Supreme Court has allowed a de facto officer to receive
Q: So is a de facto officer entitled to salaries? emoluments for actual services rendered but only when there is
no de jure officer.
A: Yes.
So kung may de jure officer, ang de jure officer ang entitled.
Salary of De Facto Officer
Q: Now, we go back to the problem. Do you consider Y as a de jure
 A de facto public officer cannot be made to reimburse officer? Is that the idea of a de jure officer?
funds disbursed during his term of office because his acts
are as valid as those of a de jure officer. A: You should distinguish a situation where there is an election contest
because in that situation, wala pay de jure diha. Okay? There is only a
 Moreover, as a de facto officer, he is entitled to de facto officer!
emoluments for actual services rendered.
[Sampayan vs. Daza, 1992] Ang idea ana na situation nga naay de jure and therefore mo-
reimburse si de facto, in a situation where, for example, like what
happened in Monserate case, PPA vs. Monserate, if two persons expiration of the term of the incumbent president, he is not allowed to
contest a particular position. Different ang election contest class make an appointment [note from DBL: this is the complete definition
because di man siya contest on who really is entitled but since it is an under the law, your answer shouldn’t stop in saying “…two months
election protest, it’s just a determination of who really won in the before election” include “…up to the expiration of his term”]. That is
election. the idea of midnight appointment.
But in a situation where, for example, ang nahitabo si Monserate: a The only exception is regular appointment if it is necessary to prevent
manager, may issue on whether a particular appointment of let’s say X any prejudice to health and public safety.
as branch or division manager, unya si Y, the one holding has not
been lawfully removed, for example, so wala xa na lawfully removed In the case of Nazareno v City of Dumaguete GR No. 177795,
and someone is placed in his office, so there is now a contest as to June 19, 2009, there is no specific prohibition similar to the midnight
who really is entitled to that office: the one that has been illegally appointment rule of the president, therefore a local chief executive like
removed or the one who had been unlawfully appointed. In that a governor or mayor may therefore, actually make midnight
situation, in reality, naa jud de jure, in the beginning wala man gud appointments; the only prohibition is that there is a civil service rule
nawa ang, in the example given, Y had never been removed from governing midnight appointments—the local chief executive can make
office because the removal was invalid. So naa nay nagkupot sa office midnight appointments provided that it is not done by bulk.
ba unlike in election nga wala pa my nagkupot ana, to be determined
pa mana by election. But in a situation where someone is already What happened in Nazareno, 60 plus or 80 plus positions were filled
holding an office and gi-remove siya illegally and someone is put in his up before the expiration of the term of the mayor, and because it was
place, then may contest na. So mao na ang situation nga naay de a violation of the civil service rule, it was disapproved by the civil
facto and de jure, in which case, a de jure officer is entitled to the service commission (CSC).
salaries. You should distinguish one from the other.
By the way, there are two levels of appointing authorities: it can either
In the example given, Y cannot be considered as a de jure officer be (1) Presidential or (2) Non-presidential appointment.
because he has not held the office. His right to hold the office is
dependent on the outcome of the election contest. Careful ka dha If presidential, there are also different groups of presidential
class. appointees. The first group (1a) requires confirmation by the
Commission on Appointments while other groups (1b) do not require
Q: Now, question, from whom can a de jure officer recover? From the such confirmation.
government or from the de facto officer?
For those appointees to be made by an appointing authority other
Who can recover and from whom? than by the president, like heads of office, it would require approval
from CSC. Like the appointments made by the city mayor in this case,
As a rule, the de jure officer cannot recover from the government, but disapproved by the CSC.
only from the de facto officer, the salary it had paid to the latter. But,
he can recover the salary from the government or the de facto officer, The question now here, considering that these illegally appointed
if the government continues to pay the de facto officer even after officers received salaries upon their appointment, and the CSC decision
notice of adjudication of the title to the de jure officer, the amount so became final only two years after, would these illegally appointed
paid after the adjudication and notice. (Mechem) officers be entitled to the salaries they received for two years or should
they return it?
A: This again comes from the authority in this matter, from his book
Q: What is the rule in regard to the salary of an officer whose
he said as a rule a de jure officer cannot recover from the government
appointment is later disapproved by the CSC?
but he should get the salary from the de facto officer.
Salary of officer whose appointment is later disapproved by

Ang exception lang daw, wala pa ni gi-ask sa bar, if the government
the CSC:
continued to disburse the salary to the de facto officer after knowledge
of the defect of the title to the office the de facto officer, estopped ang
 If the basis for disapproval is not “violation of civil service law,” say
government and therefore pwede ang de jure to demand from the
lack of qualification, the appointee is entitled to a salary.
government the payment of the salary.
This is to be tested yet by a SC ruling but this is an opinion of an  However, if the disapproval by the CSC is on the ground that the
expert, if the government continues to pay the de facto officer even appointment was made in violation of civil service law, the
after notice of adjudication of the title of the de jure officer of the appointing authority shall be personally held liable for the
amounts paid after the adjudication and notice. salary of the appointee. (Nazareno vs. City of Dumaguete, June
2009)
APPOINTMENT LATER DISAPPROVED; SALARY
A: You need to make the following qualifications: If the basis for
Q: Is there such a thing as a prohibition against midnight appointment disapproval is NOT a violation of the civil service law, but let’s say
made by local chief executive officials? [Same question/topic will also lacking in qualification, he is entitled to salary because he’s a de facto
be tackled in a later section] officer.
We know there’s a midnight appointment prohibition against the On the other hand, if there’s a violation of the civil service law, the
president. We just call it midnight, but the constitution is specific under appointing authority shall be personally held liable for the salary of the
Art VII sec. 15 that two (2) months before election and up to the appointee. If they get it from the appointees, chances are the salary
already paid out wouldn’t be returned (most probably they’ve spent it
in two to three years’ time). The best thing to do is to make the guilty qualifications in this case, sa qualifications sa Senators. Tanawon nimo
appointing authority liable to pay the salaries. Since it is a violation of ang qualification sa Senators, those are substantive qualifications. Ang
the civil service rules, the CSC can disapprove the appointment on two mandatory drug test is not substantive, it is procedural. So I don’t
grounds, first for lack of qualification, second for violation of civil think that the mandatory drug test requirement is an additional
service rules. qualification. Ako rah ni opinion ha, kinsa raman pud tawn ta mag
opine-opine.  Basta this is just my opinion. Mandatory drug test is
Go over case of “Re: Alleged Nullity of the IBP Election…”. Still about not substantive, it is procedural. Of course, it will depend on the
de facto and de jure officers. Nothing is new though. It’s just a substance on your body. Whether ma tested ka negative or positive, it
reiteration of existing rules. depends on the substance on your body.  Mao siguro nah ang
thinking sa Supreme Court. Mura man nig procedural rah, feel nako.
QUALIFICATIONS
QUALIFICATIONS TO OFFICE; WHEN TO POSSESS

WHO MAY PRESCRIBE QUALIFICATIONS:
(1) Constitution
Q: WHEN should a public officer possess the qualifications to the
(2) Congress
office? (Kanang pangutanaha murag overkill nasad siguro kay) It
o Limitations:
would depend on the position, Elective, Appointive, National or Local.
i. Congress cannot impose conditions of eligibility
inconsistent with constitutional provisions;
If Local (ELECTIVE), it depends on the qualification–
ii. Qualifications must be germane to the position
(“reasonable relation rule”)
Frivaldo Doctrine
iii. Cannot prescribe qualifications so detailed as to amount
to making an appointment in usurpation of executive
Unlike residence and age qualifications, the
power;
qualification of “citizenship” for local elective officials under
iv. Cannot prescribe qualifications in addition to those
the Local Government Code of 1991 must only be possessed at
prescribed exclusively by the Constitution
the time the candidate becomes “elective official” by his valid
(3) Delegate of Congress
proclamation and at the start of his term. (Frivaldo vs. Comelec
[1996])
*Constitution - with respect to Constitutional positions, obviously the
Constitution provides for the qualifications.
Citizenship (only) - upon assumption into office;
*Congress/By Law - expect the Congress to have stated or
Age – election day;
enumerated the qualifications.
Residency - certain period of time before the Election Day.
There are certain limitations though to the power of Congress in

Di gyud siya actually uniform. You can actually give a definitive answer
prescribing the qualifications; taken from the book of Mechem - basic
to that.
rules: Congress cannot impose conditions inconsistent with
Constitutional provisions. That is obvious. Qualifications must be
Of course APPOINTIVE, upon acceptance of the office, except to the
germane to the position (Reasonable Relation rule). The test is The
extent that appointment may be made temporarily, This is what brings
Test of Reasonableness, because sometimes, it is too detailed in a way
the confusion – that if the appointment is temporary, it is still valid
that it is tailored to just fit one person. It is hard to imagine for
because (by the way as you would see later on, is given to who has all
Congress to tailor qualifications to chosen individuals.
the qualifications, including civil service eligibility; but if he has all the
qualifications and what is only lacking is the civil service eligibility and
Our leading case here is the case of SJS vs. PDEA.
we are talking here of career service, meaning civil service eligible for
it is a merit test, temporary appointment is allowed provided one
SJS vs. PDEA (2008)
has all the qualifications and he only lacks civil service eligibility, he is
allowed to be appointed to the office on a temporary basis not to
The Congress cannot validly amend or otherwise modify the
exceed 12 months)
qualification standards for Senators, as it cannot disregard,
evade, or weaken the force of a constitutional mandate, or
KINDS OF APPOINTMENT (BY THE PRESIDENT)
alter or enlarge the Constitution.
Q. What are the three kinds of appointment to be made by the

Accordingly, Sec. 36(g) of RA 9165 [Mandatory Drug Test]
President? (BAR)
should be, as it is hereby declared as, unconstitutional.
A.
Naka remember mo atong Dangerous Drugs Act? Nga before ka maka 1. Ad interim appointment;
hold ug office, kinahanglan sa ka mo pass sa drug test. It was assailed 2. Appointment made by an Acting President; and lastly
as unconstitutional because it seems to be asking an additional 3. Temporary Appointment
qualification to hold the office. Therefore, the specific provision in the
law (RA. 9165), requiring for Mandatory Drug Test, before assumption The first kind of appointment is Ad interim appointment under Section
into office, is an additional qualification to that already provided for by 16 of Article VII. It is a permanent appointment as opposed to
the Constitution. As you know, Congress cannot provide for additional temporary appointment. Ad interim appointment is an appointment
qualifications if these qualifications are Constitutional in origin. made by the President when Congress is in recess. This is a permanent
appointment! It is valid until the disapproval by the Commission on
If I were to make a dissent on the findings of the court, ang Appointments, or until the next adjournment of the Congress. There is
no other basis of terminating the employment except for those two May a person be compelled to accept an office?
conditions, which by way are independent and separate events; so
disapproval by the Commission on Appointments or upon Generally, no. But an elected official who refuses without valid
adjournment of Congress, whether special or regular motive to be sworn in shall be held criminally liable under Sec. 234 of
adjournment. the RPC.
The second kind of appointment is an appointment made by an Acting Exception:

President. The appointment is valid only until the President, within Compulsory military and civil service under Sec. 4, Art. II of
90 days from assumption into office, disapproves the the 1987 Constitution and pursuant to the National Defense Act.
appointment.
A: It is a crime if you refuse without valid motive! Remember, must be
The third kind of appointment is in Section 14, of Article VII. It is an an elective official. An elective official, who refuses without
appointment that is temporary. This is the appointment which is an valid motive to be sworn in, shall be held criminally liable. This
exception to the “midnight-appointment-rule” which states that no is Section 234 of the RPC.
appointment should be made within a period of time and the exception
is when it prejudices the public safety and general welfare and General Rule: You cannot be compelled to act as that would be
therefore valid, provided it is temporary. So this is the meaning of involuntary servitude.
temporary appointment. But take note of section 234 …
The qualification should be possessed by the public officer not only

Exception: Military service and civil service in times of war.
upon assumption into office, or acceptance of the office (because
Conscientious objector does not apply since national defense is more
appointment by the way should be accepted), but the qualification
paramount. The doctrine is subordinated by a more compelling state
must be possessed during the entire incumbency of the public officer.
interest.
Even if he had been appointed and possessed all the qualifications, but
later on, because of supervening event, he fails to comply with all the
qualifications, his holding of the office is subject to a Quo Warranto
EFFECTS OF PARDON
proceeding. The Quo Warranto proceeding is not instituted by the Civil
Service Commission, but by the Government through the Solicitor
General. So that if you talk about specific citizenship and he is a local Effects of PARDON: On right to hold public office
government official, you apply the Frivaldo Doctrine. Citizenship for
local elective officials is not new to you. RPC:
Art. 36. Pardon; its effect. – A pardon shall not work the
PROPERTY QUALIFICATION NOT VALID
restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the
Q. In a distant past in the Bar exam, the question was about property
terms of the pardon.
qualification; is this valid? (BAR)
Is property qualification valid?

Monsanto vs. Factoran:
Maquera vs. Borra (1965): Property qualification is

 The pardon granted to petitioner has resulted in removing
inconsistent with the essence and nature of a republican
her disqualification from holding public employment but
system ordained in the Constitution and the principles of
it cannot go beyond that.
social justice underlying the same. This implies necessarily
 To regain her former post as assistant city treasurer, she
that the right to vote and to be voted for shall not be
must re-apply and undergo the usual procedure required
dependent upon wealth of the individual concerned. Social
for a new appointment.
justice presupposes equal opportunity for all.
A. As you know, it is not. This is well settled in the case of Maquera

(BAR) This case was asked in the bar many times. It distinguishes the
vs. Bora. Property qualification is inconsistent with the essence and
right to hold public office and the right to hold the specific public office
nature of a Republican System of government. This is our
(as an effect of pardon). The right to hold public office once granted is
understanding. There is no prohibition if we actually adopt a property
automatic but as to specific office, you cannot go back to your
qualification which by the way was the case in the past. But you know
previous office as a matter of right. You need to reapply.
already that the case of Maquera is our understanding now – that it is
against the idea of Republicanism and the principles of social justice.
What is only restored is the right to hold any public office but not the
right to go back to your previous public office.
ACCEPTANCE OF OFFICE
For example, you held a public office, were sued criminally, were
Q: And the other concern here is this, (that is why you were asked to
administratively removed and as a result of conviction and
read 234 of the RPC), may a person be compelled to accept an office? imprisonment, you can no longer hold the office. If you are granted
pardon you cannot go back to that public office. The right restored is
the right to hold public office in general, not to a specific public office
or your original position.
Aside from the principle that the effect of pardon does not
automatically give the grantee the right to hold the position he (public designation rather than appointment. It is not the term used which
officer) previously held, the other effect is as to the benefits. classifies whether such act is appointment or designation. Instead, one
must look at the circumstances to properly identify the nature of the
Example: A public officer was convicted and the penalty includes act.
perpetual disqualification from holding public office.
The title is appointment paper but the text says Mr. X, you are hereby
Q: If someone is granted pardon, is he entitled to the salaries and designated as etc. so the question now is, is this designation or
emoluments granted to the office? appointment. The rule is to look into the circumstances of the case,
whether it is appointment or designation. We will go to the designation
Effects of PARDON: On Benefits attached to the office later on.
A pardon looks to the future. It is not retrospective. It affords IV. And finally, appointment to be valid must comply
no relief for what has been suffered by the offender. It does not with five requisites.
impose upon the government any obligation to make reparation for
what has been suffered. This would explain why petitioner, though (1) That the appointing authority is vested with that authority to
pardoned, cannot be entitled to receive backpay for lost appoint either by the Constitution or by law;
earnings and benefits. (Monsanto vs. Factoran [1989])
(2) The appointee possesses all the qualifications and none of the
A: No. Jurisprudence teaches that Pardon is prospective, or it looks to disqualifications, and qualifications here include civil service eligibility.
the future and not retrospectively. Hence, no backpay shall be granted Again, as provided for by law or by the Constitution depending on the
because this comes within the purview payments made as reparation position involved.
for what has been suffered in the past.
(3) The position is vacant. When you say appoint someone, it
presupposes that you are to put that someone to a position. And
putting someone to a position presupposes vacancy. You cannot
APPOINTMENT; APPOINTMENT VS. DESIGNATION; validly appoint a person to a position that is not validly vacated.
PERMANENT VS. TEMPORARY APPOINTMENTS; CAREER VS. Therefore if we relate this to abolition of offices for example, we need
NON-CAREER SERVICE; ROLE OF CIVIL SERVICE to review our rules on valid abolition of office. Because if the abolition
COMMISSION (CSC); CAREER EXECUTIVE SERVICES (CES); of office is invalid, then the position is not rendered vacant. So even if
DISCRETION OF APPOINTING AUTHORITY
appointment was validly made in other respects, but there is no valid
vacancy, it can be nullified on that ground.
Appointment
(4) The appointment is approved by the CSC as a general rule,
because not all positions would require the approval of the CSC. Some
I. Essentially “Executive”; cf. “residual power of the President;
positions would not require the approval of CSC but the approval of
II. Appointment generally requires that it be “in writing”;
someone else, like those positions enumerated under Section 16 of
III. Different from “designation” (although some appointments
Article VII of the Constitution where certain positions are to be
would use the term “designate”; what controls is the nature);
appointed by the president with the confirmation of the Commission on
IV. Requires: (1) that the appointing authority is vested with that
Appointments. And later on you will see the difference between the
power; (2) the appointee possesses all the qualifications
authority of the CSC in this regard and that of Commission on
(including civil service eligibility) and none of the
Appointments.
disqualifications; (3) the position is vacant; (4) the
appointment is approved by the CSC; (5) the appointee accepts So exception to the CSC approval would be Presidential Appointees,
by taking the oath and discharges the functions. Members of the Armed Forces, Police Force, firemen, and jail guards
because they belong to the local government unit’s operational control
Basic Characteristics of the Power of Appointment of their local chief executive.
I. It is essentially executive (5) The appointee accepts by taking the oath and discharges the
functions.
If there is no law that identifies the appointing authority then the
appointing power is vested in the President because of the Residual
ROLE OF CIVIL SERVICE COMMISSION; VS. COMMISSION ON
Power of the President.
APPOINTMENTS
II. Appointment generally requires that it be “in writing”
Let’s take a look at this problem. I’m not sure if you are familiar with
the facts of the case.
This important because a public office is a public trust and there is
therefore a fiduciary relationship established the moment a person
occupies a said office. The people would be interested in knowing the
exact evidence of that fiduciary relationship and the best evidence that
the people can look into is the written memorial or appointment.
III. Appointment is different from designation.
But there is a caveat because some appointments use the term

“designate”, however it does not necessarily follow that the process is
Problem Role of CSC in Appointment: “Attestation only”
Mayor X appointed A as Administrative Officer II of Cebu City. • Civil Service Commission has no power of appointment
The appointment states that it was “permanent”. B questioned the except over its own personnel. Neither does it have the authority
appointment on the ground that he is next in rank being the to review the appointments made by other offices except only to
incumbent Administrative Officer I while A came from another ascertain if the appointee possesses the required qualifications. The
department or office of the City Hall. The CSC approved the determination of who among aspirants with the minimum statutory
appointment of A but with a notation that it was “Approved as qualifications should be preferred belongs to the appointing authority
Temporary”. CSC justified its action on the ground that B was better and not the Civil Service Commission. It cannot disallow an
qualified than A. appointment because it believes another person is better qualified and
much less can it direct the appointment of its own choice. (see Luego
A. Was the act of CSC proper? vs. CSC [1986]; Province of Camarines Sur vs. CA [1995])
B. How do you distinguish the function of CSC from the Commission
on Appointment’s? When you say attestation, to determine WON or to attest WON the
person is qualified or has disqualifications. This is because if you look
DBL: Dili. (asks for volunteer) at the power of CSC … what the SC mentioned in these cases was a
specific provision in the Civil Service Law that refers to the specific
Student: CSC’s function is to determine if the appointee has the power of the CSC to attest, by attesting, meaning just to determine
qualification. But it does not have the authority to substitute its own whether the person, the appointed person possesses the qualification
choice for the appointee sir. Because appointment is discretionary and none of the disqualifications.
power of the appointing authority
And this is important, because this is not found in the power of the CA.
DBL: If you say that the authority of the appointing authority is So the only reason why the role of the CSC is only limited to
discretionary then I would ask you to answer the second question. attestation, because of the Civil Service Law which fixes the discretion
Because if for example the president makes an appointment, but it is of the CSC. That is different from the CA because ang authority nila in
not approved by the CA (Commission on Appointment), for those approving or disapproving, confirming or not confirming the
positions that would require confirmation by the CA, is it not that the appointments of the President, is plenary. So the discretion of the
president has no other choice but to respect the decision of CA. So in Commission on Appointments is plenary while the Civil Service
that regard would the theory or rule that the appointing authority’s Commission is limited to attestation only.
power is discretionary would not be anymore be correct.
So it is not only the idea that the appointing authority is discretionary
DBL: di ba, mao ni imo answer, CSC’s function is limited only to the that would justify the answer that the act of the civil service
determination of WON the appointive applicant possesses the commission is improper.
qualifications and none of the disqualifications and you added a second
layer, that the appointing authority’s power is discretionary, so he has Q: The corollary question is what now is therefore is the nature of the
the discretion to decide not the CSC. Niya, period. appointment of A, is it temporary or still permanent?
What about the 2nd question? Ngano lagi ang president if mo appoint A: Again if you go back to the idea that the authority of the CSC is
siya, it would be subject to the confirmation of CA and he has to only to attest then the CSC cannot change the nature of the
accept the rejection of CA? Therefore it’s not the reason nga appointment. So if it had been or that the appointee had appointed
discretionary ang correct answer… Well, it is correct, but not the under permanent appointment status then that should be the nature of
perfect answer. (See cases of Lopez vs. CSC, Lapinid vs. CSC, his appointment and the civil service commission cannot override the
Luego vs. CSC.) nature of the appointment made by the appointing authority. That is
the part of the appointing authority’s discretion. TN; BAR
These are the 2 layers of your answer:
First -
Appointing Authority’s Discretion
• The appointing authority is given ample discretion in the

selection and appointment of qualified persons to vacant NEXT-IN-RANK RULE
positions, provided that the exercise thereof is in good faith
for the advancement of the employer's interest and not for the Q: What about the reasoning of B, that he is entitled to the position. Is
purpose of defeating or circumventing the rights of the employees B correct in saying that he is entitled to the position simply because he
under special laws or under valid agreements and provided further that is the incumbent Administrative Officer 1?
such prerogatives are not exercised in a malicious, harsh, oppressive,
vindictive or wanton manner, or out of malice or spite. (Lopez v. CSC A: This brings me to the concept of next-in-rank rule. This rule does
[1991]); Lapinid v. CSC [1991) not provide that the person next in rank is absolutely and by legal right
entitled to the appointment because when you say next in rank it
And then you’ve learned that the role of the CSC in appointment is refers only to preferential consideration for the promotion to the higher
limited only to attestation - vacancy.
“Next-in-Rank Rule” DBL: Very good. So aside from benefits, we talk about the security of
tenure.
• One who is next-in-rank is entitled to preferential consideration
for promotion to the higher vacancy but it does not necessarily Student: in temporary sir, his appointment is dependent on the
follow that he and no one else can be appointed. The rule discretion of the appointing authority. So as long as the appointing
neither grants a vested right to the holder nor imposes a ministerial authority allows, then he remains in the position. In other words, it is
duty on the appointing authority to promote such person to the next pleasure of the appointing authority.
higher position. Thus, an officer lower in rank but of superior
qualification may be promoted instead. (see also Luego vs. CSC) DBL: In other words, basically there is no security of tenure in the
status of an employee or officer who was merely been designated. So
The next in rank rule should also be distinguished from a situation for designation, there is no security of tenure. But in appointment,
where an office had been validly abolished and a new one had been there is security of tenure. That is correct. So you have to read the
validly established. Under the Civil Service Law the moment an office is cases of Santiago vs. COA, Sevilla vs. CA and Santos, and TESDA
abolished, so there are affected personnel, and a new one is created vs. COA in this regard. [TESDA digest in p. 14]
under the civil service law, those affected by the abolition of the office
are preferred when it comes to filling up the position in the newly “Appointment” vs. “Designation”
created office. The next in rank rule is irrelevant in that situation. In
fact there is no such thing as preferential consideration to a person • Appointment is the selection by the proper authority of an
who probably is the next in rank. individual who is to exercise the functions of a given office;
Example: if the newly created office assumes a higher position in the • Designation, on the other hand, connotes merely the imposition of
hierarchy. There will always be a person who can claim the next in additional duties, usually by law, upon a person already in the public
rank. But if the situation is that an earlier office is abolished and a new service by virtue of an earlier appointment (or election).
one is established, then we apply the civil service rule on giving = No Security of Tenure and No Additional Benefits.
preference not to the one who is next in rank but to those who had
been effected by the abolition of the office. (TN) (see Santiago vs. COA [1991]; Sevilla vs. CA Santos [1992]; TESDA
vs. COA [2014])
Questions:
So the effect would be there is no security of tenure in designation and
Distinguish: general rule, there is no additional benefits unless of course, additional
1. Appointment from Designation benefits are provided for by law. So that is one area that you need to
2. Permanent from Temporary master—Appointment vs. Designation.
3. Dismissal from Expiration of Term
4. Career vs. Non-Career Service
PERMANENT VS. TEMPORARY APPOINTMENT
APPOINTMENT VS. DESIGNATION Permanent vs. Temporary Appointment in Civil Service
In appointment, someone has not yet occupied an office; precisely Permanent – the appointee meets all the qualifications and
appointment siya, “designated” to an office; in designation, giving of requirements including the appropriate eligibility requirement (civil
additional function to one who is already in office. service eligibility requirement); it lasts until lawfully terminated.
DBL: What is the importance of telling the difference? Are there Temporary – the appointee meets all the requirements for the
significant rules that are significant to one and not the other? position except the appropriate civil service eligibility. It shall not
exceed 12 months and employment ends ipso facto with or without
Student: Salary- in designation, even if there are additional functions, qualified replacement. VS. “Co-terminus”
the salary remains the same because the designation pertains to single
office. Emoluments during retirement – there are no additional (See Pangilinan vs. Maglaya [1993]); Province of Camarines vs. CA
emoluments for designation, the exception is if there is a law which [1995])
requires or grants additional emoluments. The retirement should be
based on the highest salary. In a case, there was an issue on Student: Permanent appointment sir is extended to those persons who
designation and appointment. It was contended by the Commission on already possess the necessary qualifications. While temporary are
Audit that it should be the highest salary that should be made as basis extended to those who may not have yet possessed the necessary
for the retirement and should only be the only for which the person qualifications.
has been appointed. However, the rule is different because the
Exceutive Order provided that it should be based on the highest DBL: We need to fine-tune the answer. Because permanent and
salary—actual salary received without qualification as to designation or temporary appointees possess all the qualifications. The distinction is
appointment. that in permanent, civil service eligibility is already included. In
temporary, all qualifications must also be complied with. The only
DBL: Other than the benefits and emoluments, what other legal exemption is the civil service eligibility.
significance?
Let us say you are appointed to the position that would require you to
Student: Security of Tenure. be an LLB graduate, and then wala kay civil service eligibility. What I
know is that if you did not graduate with honors, I think you need to
pass the civil service exam in order to be a civil service eligible. So if
you possess all the qualifications like LLB, Filipino Citizen and all, Career from non-career service, you also have to take note of the
except the civil service eligibility, you can actually be appointed. But characteristics. The law will provide whether such a position is career
the appointment can only be temporary. or non-career.
In fact, it is also important for you to note the period of a temporary The Civil Service examination is the competitive exam that is referred
appointment—it should not exceed 12 months and in fact, this is to here. How to tell whether it is Career or Non-career, it depends on
automatic, ipso facto after 12 months, even if there is no one qualified the law that creates the office or position. And there are exceptions
to replace, the temporary appointment has to be terminated. however to competitive exam: policy-determining, primarily
confidential, and Highly technical positions.
Different ang co-terminus because while temporary ang co-terminus in
the sense that he serves at the pleasure of the appointing authority Competitive Examination
ang temporary lang is specific in the sense that 12 months ra sad siya.
Whereas ang co-terminus, kung 3 years ang appointing authority kay • The Constitutional provisions merely constitute the policy-
mayor man, then 3 years ang iyahang period sa employment. determining, primarily confidential, and highly technical
Temporary gihapon in that sense. One who is assuming an office in an positions as exceptions to the rule requiring appointments in the Civil
acting capacity, as you have read in the cases cited, is also possessing Service to be made on the basis of merit a fitness as determined from
a temporary appointment or position. So you have to distinguish competitive examinations.
between permanent and temporary appointment.
• Although exempt from competitive exam, they cannot also be
MIDNIGHT APPOINTMENTS removed without cause.
I mentioned the case of Nazareno vs. City of Dumaguete last time. So Usually for lawyers, we belong the either policy-determining, primarily
this is the Civil Service Resolution or rule that I have mentioned. Items confidential (kanang mga legal staff) and highly technical positions.
no. 3 (d) and 4 of CSC Resolution No. 010988 dated 4 June 2001.
There are third level positions such Undersecretary, Assistant
Is “MIDNIGHT APPOINTMENT” prohibited in LOCAL Secretary, etc as provided for here and may be identified by the
APPOINTMENTS? Career Executive Service Board (CESB).
Items No. 3(d) and 4 of CSC Resolution No. 010988 dated 4 Career Executive Service [CES]
June 2001, prohibits the outgoing chief executive from making “mass
appointments‖ after elections.” The term “mass appointments”‖ Third Level positions such as Undersecretary, Asst. Secretary,
refers to those issued in bulk or in large number after the elections by Bureau Director, Asst. Bureau Director, Chief of Dept. Service and
an outgoing local chief executive and there is no apparent need for other officers of equivalent rank as identified by the Career Executive
their issuance. (Nazareno vs. City of Dumaguete, June 2009). Service Board [CESB], all of whom are appointed by the President.
So this Civil Service resolution prohibits the outgong chief executive They have NO SECURITY OF TENURE, may be removed anytime
from making mass appointment after election. Wala nuon nagbutang unless they have been issued CESO rank by the President.
ug threshold as to how many. But mass apointments would refer to
those issued in bulk or in large number after the elections by an Never been asked in the Bar because you still have to look at the
outgoing local chief executive. listing of the Board as to these positions. That’s why I simply said third
level positions such as, so we can’t say that these are the only. What is
Pero naay qualification ha, which is “there is no apparent need for important is if these are the positions identified by the Board, they
their issuance.” And usually, there is really no apparent need. It is hard have no security of tenure and therefore can be removed anytime. The
to justify the appointment by bulk by an outgoing Local Chief only exception is when the President issues or gives a CESO rank to
Executive by reason of what, unsa man nah nga necessity kaha? It is the officer.
hard to imagine if that can really occur.
So there is not such a thing as a prohibition against midnight

appointment for Local chief Executive but what is prohibited only is
mass appointment if done so after the election and mass appointment HOLD-OVER PRINCIPLE
refers to appointment by bulk.
CAREER VS. NON-CAREER SERVICE
“Career” vs. “Non-career” Service
Career – characterized by: (1) merit and fitness test [competitive

exam] or highly technical qualification; (2) Security of Tenure; and (3)
Opportunity for Advancement to higher career position.
Non-career – characterized by (1) not based on competitive exam

nor highly technical qualification; (2) Tenure is limited by law or co-
terminus with appointing authority.
HOLD-OVER PRINCIPLE determine the presence or absence of this mental element by the
observable overt acts of the official. You have to analyze properly the
 A PUBLIC OFFICER WHOSE TERM OF OFFICE HAS EXPIRED OR problem if there is any indication of such malice or gross negligence.
WHOSE SERVICES HAVE BEEN TERMINATED IS ALLOWED TO One can be grossly negligent depending on the facts of the case.
CONTINUE HOLDING OFFICE UNTIL HIS SUCCESSOR IS
APPOINTED OR CHOSEN AND HAS QUALIFIED. DOCTRINE OF OFFICIAL IMMUNITY; EXCEPTIONS:
RATIONALE: PUBLIC INTEREST; PREVENT HIATUS IN - Motivated by malice

PUBLIC SERVICE - Gross Negligence amounting to bad faith
- Bad Faith
 RULES:
WHEN LAW PROVIDES FOR IT: INCUMBENT WILL CIVIL LIABILITY (DAMAGES)
HOLD OVER EVEN IF BEYOND THE TERM FIXED BY LAW UNTIL
SUCCESSOR IS CHOSEN/ APPOINTED  WHEN PERFORMING OFFICIAL FUNCTIONS, PUBLIC OFFICERS
ARE LIABLE ONLY IN CASE OF MALICE, BAD FAITH, GROSS
WHEN LAW IS SILENT: UNLESS EXPRESSLY OR NEGLIGENCE;
IMPLIEDLY PROHIBITED, INCUMBENT MAY HOLD OVER
 NOT LIABLE FOR “WRONG INTERPRETATION OF LAW”;
Hold-over principle as a general rule is not allowed. It is only allowed
 HEADS ARE LIABLE FOR ACTS OF SUBORDINATES ONLY WHEN
when the law allows holding office beyond a fixed term. Hold-over
HE HAS “AUTHORIZED BY WRITTEN ORDER THE ACT
principle is allowed by law as in the case of BARANGAY OFFICIALS.
COMPLAINED OF”
And there is implied prohibition to hold-over if there is a fixed term
because that is an indication that after the end of the term, the officer
 BUT: Section 24 OF LCG OF 1991 provides: Liability for
has to step down. But supposedly it is allowed to prevent a vacuum in
Damages. - Local government units and their officials are not
public office.
exempt from liability for death or injury to persons or damage to
property.
DOCTRINE OF OFFICIAL IMMUNITY

In the case of Lansang vs. CA, SC said when performing official
functions, public officers are liable only in case of malice, bad faith, or
For holding or detaining certain products, these officers of the BOC
gross negligence amounting to bad faith. These are the bases for
were sued for damages for the performance of their functions. Even if
holding public officials liable for damages.
they were sued in their personal capacity, what did the SC say?
(Farolan case)
DOCTRINE OF OFFICIAL IMMUNITY

THREE-FOLD LIABILITY RULE
It is the duty of the court to see to it that public officers are not
hampered in the performance of their duties or in making decisions for Three-fold Liability Rule
fear of personal liability for damages due to honest mistake. Whatever
damage they may have caused as a result of such an erroneous Basic in the law of public officersis the three-fold liability
interpretation, if any at all, is in the nature of a damnum absque rule, which states that the wrongful acts or omissions of a public
injuria. Mistakes concededly committed by public officers are not officer may give rise to civil, criminal and administrative liability. An
actionable absent any clear showing that they were motivated by action for each can proceed independently of the others. (Domingo v.
malice or gross negligence amounting to bad faith. After all, “evenu Rayala, G.R. No. 155831, 155840, 158700, February 18, 2008)
under the law of public officers, the acts of petitioners are protected
by the presumption of good faith.” (Farolan v. Solmac Marketing Corp.,
G.R. No. 83589, March 13, 1991) For a singular act, a public officer may be held liable, either:
This is related to the DAP Case: WON the Secretary of Budget and 1. Administratively - whether he should be disciplined or
Management should be held liable for the wrong interpretation of the removed from office
idea of spending a budget or certain appropriation for another purpose *Disciplined: penalties like suspension, reprimand
different from the appropriation made by Congress. and other forms of administrative sanctions
2. Criminal Liability - if the acts of the officer constitute a crime
The justification supposedly was, they were SAVINGS. But the SC in 3. Civil Liability - if acts of officer constitute a ground for
the DAP case ruled that savings can only be determined at the end of damages
the year or the lapse of December 31 of a particular year and that is
when the government can tell whether there are savings or not. So the Any of these 3 can proceed independently of one another. Sa bar
executive cannot for example determine in the middle of the year such exam, this has been asked many times. Usually ang situation kay naay
appropriation as savings until the end of the year. However, the criminal liability, unya acquitted or dismissed. And then later on, either
interpretation of the Secretary was different. Should the latter be held administrative or civil liability ang gi-file thereafter. Unya ang ground
liable for its wrong interpretation? No. The reasoning here is given by sa motion to dismiss would be the acquittal sa criminal case, and
the Supreme Court in the case of Farolan. (Refer above) therefore cannot be held liable administratively or civilly. You know
how to address that problem already.
And of course as you know since this is a mental element, you need to
Q: Ngano naa may Threefold Liability Rule? Explain why this principle LIABILITY OF SUPERIOR OFFICERS FOR ACTS OF
exists. And why is it that one action can proceed independently of the SUBORDINATES
others?
A: Q: What is the reasoning of the Arias doctrine?

1. Quantum of evidence is different
2. Different causes of action A: A superior should not be held liable for any irregularities, omissions
committed by subordinates and cannot be considered in conspiracy
Quantum of Evidence required is different automatically with the subordinates. Because the standing policy is
that … [quoting below]
Criminal – proof beyond reasonable doubt
Administrative – substantial evidence LIABILITY FOR ACTS OF SUBORDINATES
Civil – preponderance of evidence
• ARIAS DOCTRINE (1989):
But so what if lahi ilang requirements? Tanawn nimu ang hierarchy of We would be setting a bad precedent if a head of office plagued
proof required. So sayon ra kaayo na ma-justify. One may have been by all too common problems - dishonest or negligent subordinates,
acquitted for failure to prove guilt beyond reasonable doubt, but the overwork, multiple assignments or positions, or plain incompetence is
same person may be held civilly or administratively liable because of suddenly swept into a conspiracy conviction simply because he did not
the lower requirements of evidence needed. personally examine every single detail, painstakingly trace every step
from inception, and investigate the motives of every person involved in
Different Causes of Action a transaction before affixing, his signature as the final approving
authority.
Kung ato ning balihon, pananglitan, not liable siya civilly. So ni-ingon
na ang court in a civil case, so this person, the public officer under the Under the Arias doctrine, he is not supposed to examine extensively
facts is so established not liable unya ikiha siya criminally. the record before he affixes his signature in approving a particular
project.
Q: Is it a sound argument to say, wala man gani siya na civilly liable sa
preponderance of evidence then logically, he cannot be convicted? But if we take a look at the case of Cesa vs. the Ombudsman,
which by the way cited the earlier case Alfonso vs Office of the
DBL: so dili lang di-ay na about the burden of proof requirement. President, and in relation to the much later case of Bacasmas vs.
Sandiganbayan.
Student: they also have different causes of action.
In the case of Cesa…this is a Cebu City case, there were request for
DBL: for me that is the better answer, different causes of action. salary advances, approved by the cash division, then occupied by
Bacasmas. And then the City Treasurer at that was Eustaquio Cesa and
Q: What is a cause of action?
the City Administrator was Atty. Allan Gaviola. So ang policy sa
approval of cash advances would be mo prepare ang Head sa Cash
A: There is an act or omission that is in violation of a right. So there is
Division sa mga forms and then there will be three boxes to be signed
invasion of right and that is determined by law. And because there are
by the Head of the Cash Division, the second box to be signed by the
different causes of action, different law ang nag govern. Of course,
City Treasurer and the third box to be signed by City Administrator. So
criminal law – revised penal code; Civil case – generally the Civil Code;
three signatures.
administrative lain sad.
Kaning si Cesa ni invoke sa Arias doctrine because city treasurer man
For me it’s not only the burden of proof requirement. As I have said
siya and he said ang iyang signature would only depend on whether
kung balihon nimo dili man mo follow.
the cash division head has also approved the release of the cash
advances. On the other hand, ang city administrator would also sign if
Remember, however, the exception to civil liability can still prosper
he finds there the signatures of the city treasurer and the head of the
even if there is acquittal because one exception is when the acquittal is
cash division. In both cases of Cesa and the City administrator Gaviola,
founded on the fact that the act as alleged had not in fact been
the Arias doctrine was not applied.
committed by the accused. Kung ma-o nay basis sa acquittal then wala
say basis for civil liability. But this is quite complicated because there
Issue on both cases is that whether or not the superior can be held
are also what we called independent civil actions and actions that are
criminally liable in conspiracy with the subordinates.
not independent. So dili na fixed rule ba class nga three-fold liability
automatic sad.
The difference of both cases, the Cesa and Santillano, is that in Cesa,
if public official’s foreknowledge of facts and circumstances that
suggests irregularity (the irregularity is not apparent).
PRESUMPTION OF REGULARITY OF PERFORMANCE;
EXCEPTIONS  ALFONSO DOCTRINE (2007);
 Reiterated in CESA (2008):
A public official's foreknowledge of facts and circumstances
[Not discussed. Delos Santos case digest in p. 15] that suggested an irregularity constitutes an added reason to exercise
a greater degree of circumspection before signing and issuing public
documents. By failing to prevent the irregularity that a superior
had reason to suspect all along or to take immediate steps to
rectify, the superior will be held liable.
Ok then, that should be settled.
Whereas in Santillano case, the irregularity is apparent because in LIABILITY FOR ACTS COMMITTED OUTSIDE OF DUTY
that case there is a project and a contractor. The project which is
supported by a 4.5m budget released for that particular project but the
completion cost only amounts to 3m plus. This involves the difference Q: Is a public officer liable for acts not related to their office?
between the budget released and the completion cost. Secondly, the
documents supporting the project are not voluminous unlike in arias I’m sure you won’t be surprise by the rule. It’s hard to distinguish noh
case which the irregularity cannot be discovered easily; irregularity is the private and public life of a public officer. It’s really hard to
not apparent; irregularity cannot be expected to be discovered right distinguish so “acts that have nothing to do with their functions will
away. still be a basis for a disciplinary action”.
If the irregularity is apparent and the files are not bulky or voluminous, For example, a school teacher borrowing money and failed to pay----
the superior is required to check and determine whether or not there is every time sir sends a demand letter, the last paragraph of my
an irregularity. (Santillano case governs); but if the irregularity is not demand letter i ingun nako “we reserve the right to initiate
apparent, Cesa and Bacasmas case will govern. Irregularities cannot administrative action or actions before the office of the ombudsman
be seen but there are facts and circumstances that would suggest for your failure to honor a just obligation”. Kay may SC decision na
irregularity. Public official’s foreknowledge of facts and circumstances man ana failure to pay a a valid or just debt or obligation is actionable
that suggested irregularity constitutes an added reason to exercise a for those who are in public employment. Pwedi ka ma disciplina for
greater degree of circumspection before signing and issuing public non-payment of debt, so maka ingun ka, so may labot ani sa akung
documents. pgka maestra ani sa akung pagka borrower, because it’s really difficult
to distinguish the public and private life of a public officer or employee,
But in the case of Bacasmas vs. Sandiganbayan, ang involved man so in fact if we talk about dishonesty for example, in order to warrant
gud to ug cash advances nya according to the law on cash advances, d dismissal need not be committed in the course of duty by the person
i class kanang cash advances aprobahan mana class kung na charged, so it refers to the person, not to the act now.
liquidated ang earlier cash advances common na siya nga practice, so
kung ikaw ang taga cash division kung naay mu request ug cash DISCIPLINE: Dishonesty committed outside of duty
advance mg prepare ka, ikaw nga city treasurer even if ni sign ang
head sa cash division kahibaw man ka nga cash advance na you are • Dishonesty, in order to warrant dismissal, need not be committed in
familiar with the policy before nmu approbahan ang cash advance, ang the course of the performance of duty by the person charged.
earlier cash advances duly liquidated, and that’s a very simple task to
do, pag tan-aw nimu unsa mani cash advance, unsa man to kani adto • The private life of an employee cannot be segregated from
na liquidated ba ni, tan.awa kuno b, ug wala ayaw ug sign, very simple his public life. Dishonesty inevitably reflects on the fitness of the
ok? officer or employee to continue in office and the discipline and morale
of the service. (Remolona vs. CSC [2001]
Ayaw ug hide sa principle sa ARIAS because that is a very simple thing
to do that’s why in ingun ang SC in Bacasmas, there was gross
negligence amounting to bad faith, in fact there was kuno conspiracy, AUTHORITY TO INVESTIGATE ACTS OF PUBLIC OFFICERS
you know why? It did not happen one time lang and that’s an added
fact mao wala gyud ni tu-o ang SC nga ARIAS doctrine ang i apply, ok?
So it had been for several years cash advance! cash advance! Nya Finally, we have the aspect on the authority to investigate acts of
unliquidated ang earlier cash advances, ok? So mao na siya class. public officers.
Bacasmas vs. Sandiganbayan There is no rule, by the way, that only the Ombudsman can
(July 10, 2013) investigate. Actually, any investigative office can investigate any public
offcer. Naa lang siya’y primary BUT NOT exclusive authority.
Petitioners cannot hide behind our declaration in Arias v.
So this is how the SC stated this rule:
Sandiganbayan that heads of offices cannot be convicted of a
conspiracy charge just because they did not personally examine every
Authority to Investigate Acts of Public Officers
single detail before they as the final approving authorities, affixed their
signatures to certain documents. The Court explained in that case that
The Constitution, Section 15 of the Ombudsman Act of 1989 and
conspiracy was not adequately proven, contrary to the case at bar in
Section 4 of the Sandiganbayan Law, as amended, do not give to the
which petitioners’ unity of purpose and unity in the execution of an
Ombudsman exclusive jurisdiction to investigate offenses committed
unlawful objective were sufficiently established.
by public officers or employees. The authority of the Ombudsman to
investigate offenses involving public officers or employees is
Also, unlike in Arias, where there were no reasons for the
concurrent with other government investigating agencies such as
heads of offices to further examine each voucher in detail, petitioners
provincial, city and state prosecutors. However, the Ombudsman, in
herein, by virtue of the duty given to them by law as well as by rules
the exercise of its primary jurisdiction over cases cognizable by the
and regulations, had the responsibility to examine each voucher to
Sandiganbayan, may take over, at any stage, from any investigating
ascertain whether it was proper to sign it in order to approve and
agency of the government, the investigation of such cases. (ALFREDO
disburse the cash advance.
ROMULO A. BUSUEGO, petitioner, vs. OFFICE OF THE OMBDUSMAN
[digest available in p. 15]
[MINDANAO] [and] ROSA S. BUSUEGO, respondents., G.R. No.
196842, October 09, 2013)
I already mentioned there are rules on liquidation on previous cash
[digest available in p. 16]
advances before another set of request for cash advance be approved.
So for those cases that are cognizable by the Sandiganbayan, the were, in fact, merely designated with additional duties, which
Ombudsman has the primary jurisdiction and to implement or to put designation did not entitle them to additional EME. InDimaandal
teeth to this primary jurisdiction of the Ombudsman for cases that are v. COA, we held that designation is a mere imposition of
triable by the Sandiganbayan (Salary Grade 27), the Ombudsman may additional duties, which does not entail payment of additional
take over at any stage investigations by the government. Pwede siya benefits. Since the TESDA officials were merely designated with
ka take-over but this does not mean that his jurisdiction is exclusive. It additional duties, the ruling in Cantillo v. Arrieta on de
could happen that the investigation was started by the prosecutors facto officers need not be discussed.|||
and then it is taken over.
2) The Director-General's blatant violation of the clear provisions of
[END of CLASS DISCUSSION] the Constitution, the 2004-2007 GAAs and the COA circulars is
equivalent to gross negligence amounting to bad faith. He is
required to refund the EME he received from the TESDP Fund for
himself. As for the TESDA officials who had no participation in the
DIGESTS OF RECENT JURISPRUDENCE approval of the excessive EME, they acted in good faith since they
had no hand in the approval of the unauthorized EME. They also
honestly believed that the additional EME were reimbursement for
TESDA v. COA, G.R. No. 204869, March 11, 2014
their designation as project officers by the Director-General.
Being in good faith, they need not refund the excess EME they
Facts:
received.
Upon post audit, the TESDA audit team leader discovered that for the
calendar years 2004-2007, TESDA paid Extraordinary and
Delos Santos v. COA, G.R. No. 198457, August 13, 2013
Miscellaneous Expenses (EME) twice each year to its officials from two
sources: (1) the General fund for locally-funded projects, and (2) the
Facts:
Technical Education and Skills Development Project (TESDP) Fund for
This case is about the controversy of the Tony N’ Tpmmy Health
the foreign-assisted projects.||| The payment of EME was authorized
Program (TNT) which seeks to aid indigent patients in Vicente Sotto
under the General Provisions of the General Appropriations Acts of
Memorial Medical Center (VSMMC) in providing medicines for free. This
2004, 2005, 2006 and 2007 (2004-2007 GAAs), subject to certain
program was funded by the former Congressman Tony Cuenco,
conditions, among others, only to the ranks specified and that
pursuant to a MOA with VSMMC. It was agreed, inter alia,
miscellaneous expenses should not exceed P50,000 for each office of
that: (a) Cuenco shall identify and recommend the indigent patients
each of those officials.
who may avail of the benefits of the TNT Program for an amount not
exceeding P5,000.00 per patient, except those with major illnesses for
The audit team issued Notice of Disallowance No. 08-002-101 (04-
whom a separate limit may be specified; (b) an indigent patient who
06) disallowing the payment of EME amounting to P5,498,706.60 for
has been a beneficiary will be subsequently disqualified from seeking
being in excess of the amount allowed in the 2004-2007 GAAs. In
further medical assistance; and (c) the hospital shall purchase
addition, the EME were disbursed to TESDA officials whose positions
medicines intended for the indigent patients from outside sources if
were not of equivalent ranks as authorized by the Department of
the same are not available in its pharmacy, subject to reimbursement
Budget and Management (DBM), contrary to the provisions of the
when such expenses are supported by official receipts and other
2004-2007 GAAs. It indicated the persons liable for the excessive
documents. When COA found out about the falsification and forgeries
payment of EME: the approving officers, payees and the
on the medicine prescriptions, VSMMC Administration headed by
accountants.|||
VSMMC Chief Delos Santos initiated a fact – finding committee to act
TESDA’s argument: TESDA insists on its interpretation justifying its
on the matter which yielded the finding that VSMMC was blinded by
payment of EME out of the TESDP Fund. It argues that the 2004-2007
the TNT office and the staff of Cuenco. However, the Special Audit
GAAs did not prohibit its officials from receiving additional EME
Team of COA held the following people solidarily liable for the
chargeable against an authorized funding, the TESDP Fund in this
disallowed funds supposedly as payment for the vaccines and
case, for another office to which they have been designated.
medicines amounting to P3M: (a) for Delos Santos, in her capacity as
Medical Center Chief, for signing and approving the disbursement
Issue:
vouchers and checks; (b) for petitioner Dr. Josefa A. Bacaltos, in her
1) WON TESDA is justified in granting Project Officers
capacity as Chief Administrative Officer, for certifying in Box A that the
additional EME despite the fact that they were not included
expenses were lawful, necessary and incurred in her direct
in the ranks mentioned in the GAA
supervision; (c) for Antoni, in her capacity as Chief of the Pharmacy
2) If the answer is in the affirmative, who should be held liable
Unit, for approving the supporting documents when the imputed
to reimburse funds illegally released?
delivery of the medicines had already been consummated; (d) for
petitioner Maureen A. Bien, in her capacity as Hospital Accountant, for
Ruling:
certifying in Box B of the disbursement voucher that the supporting
1) No. TESDA’s authorization of granting EME to project officers has
documents for the payment to Dell Pharmacy were complete and
no legal basis. The position of project officer is not among those
proper.|||
listed or authorized to be entitled to EME, namely, the officials
In defense, they raised this argument: VSMMC was merely a passive
named in the GAA, the officers of equivalent rank as may be
entity in the disbursement of funds under the TNT Program and, thus,
authorized by the DBM, and the offices under them. The
invoke good faith in the performance of their respective duties,
underlying principle behind the EME is to enable those occupying
capitalizing on the failure of the assailed Decisions of the CoA to show
key positions in the government to meet various financial
that their lapses in the implementation of the TNT Program were
demands. As pointed out by COA, the position of project officer
attended by malice or bad faith.|||
is not even included in the Personnel Service Itemization or
created with authority from the DBM. Thus, the TESDA officials
Issue:
WON VSMMC can be presumed to be regular in the performance of its
functions under the MOA of TNT, thus cannot be held liable for the Thereafter, the voucher is forwarded to City Accountant Edna C. Jaca
disallowed funds (Jaca) for processing and pre-audit. She also signs the voucher to
certify that there is adequate available funding/budgetary allotment;
Ruling: that the expenditures are properly certified and supported by
NO. VSMMC may not invoke the presumption of regularity because it documents; and that previous cash advances have been liquidated and
has violated an explicit rule. accounted for. She then prepares an Accountant's Advice (Advice).
Jurisprudence holds that, absent any showing of bad faith and malice, This Advice is returned with the voucher to the Chief Cashier for the
there is a presumption of regularity in the performance of official preparation of the check. After it has been prepared, she affixes her
duties. However, this presumption must fail in the presence of an initials to the check, which Cesa then signs. Afterwards, City
explicit rule that was violated. For instance, in Reyna v. CoA (Reyna), Administrator Gaviola approves the voucher and countersigns the
the Court affirmed the liability of the public officers therein, check.
notwithstanding their proffered claims of good faith, since their actions
violated an explicit rule in the Landbank of the Philippines' Manual on The voucher, the Advice, and the check are then returned to the Cash
Lending Operations. In similar regard, the Court, in Casal v. Division, where Gonzales signs the receipt portion of the voucher, as
CoA (Casal), sustained the liability of certain officers of the National well as the Check Register to acknowledge receipt of the check for
Museum who again, notwithstanding their good faith participated in encashment.
approving and authorizing the incentive award granted to its officials
and employees in violation of Administrative Order Nos. 268 and 29 Upon receipt of the check, Gonzales encashes it at the bank, signs the
which prohibit the grant of productivity incentive benefits or other voucher, and records the cash advance in her Individual Paymaster
allowances of similar nature unless authorized by the Office of the Cashbook. She then liquidates it within five days after payment.
President. In Casal, it was held that, even if the grant of the incentive
award was not for a dishonest purpose, the patent disregard of the A report of those cash advances liquidated by Gonzales is called a
issuances of the President and the directives of the CoA amounts to Report of Disbursement (RD). An RD must contain the audit voucher
gross negligence, making the ["approving officers"] liable for the number, the names of the local government employees who were paid
refund [of the disallowed incentive award]. using the money from the cash advance, the amount for each
Just as the foregoing public officers in Reyna and Casal were not able employee, as well as the receipts. The RDs are examined and verified
to dispute their respective violations of the applicable rules in those by the City Auditor and are thereafter submitted to the Cash Division
cases, the Court finds that the petitioners herein have equally failed to for recording in the official cash book.
make a case justifying their non-observance of existing auditing rules
and regulations, and of their duties under the MOA. These officials now invoke the Arias Doctrine as defense.
Petitioners' acts and/or omissions as detailed in the assailed CoA Issue: WON the petitioners’ invocation of the Arias Doctrine is correct
issuances and as aforedescribed reasonably figure into the finding that
they failed to faithfully discharge their respective duties and to Ruling:
exercise the required diligence which resulted to the irregular
disbursements from Cuenco's PDAF. In this light, their liability pursuant NO. They are incorrect. Petitioners' acts not only show gross
to Sections 104 and 105 of the Auditing Code, as well as Section 16 of negligence amounting to bad faith, but, when taken together, also
the 2009 Rules and Regulations on Settlement of Accounts, as show that there was conspiracy in their willful noncompliance with
prescribed in CoA Circular No. 2009-006, must perforce be upheld. their duties in order to defraud the government.|||
Truly, the degree of their neglect in handling Cuenco's PDAF and the
resulting detriment to the public cannot pass unsanctioned, else the Not only were petitioners unified in defrauding the government, but
standard of public accountability be loosely protected and even they were also unified in not reporting the negligence of their cohorts
rendered illusory.||| because of their own negligence. Cesa himself admitted knowing that
Gonzales had unliquidated cash advances, yet he signed the vouchers.
Bacasmas v. Sandiganbayan, G.R. No. 189343, 189369, He also failed to inform the other officials that they should not sign the
189553, July 10, 2013 vouchers and tolerated their negligence when they affixed their
signatures thereto. Petitioners, through their admissions before the
Facts: Sandiganbayan, all knew that there were irregularities in the vouchers;
still they failed to correct one another, because they themselves signed
The following Cebu City Government officials, who were held liable for the vouchers despite the glaring irregularities therein.
the P9M accumulated shortage in the City’s funds from 20 September
1995 to 5 March 1998 from the cash and accounts of the paymaster, Petitionerscannot hide behind our declaration in Arias v.
Luz Gonzales| take part in the process of approving and releasing cash Sandiganbayan that heads of offices cannot be convicted of a
advances described as follows: conspiracy charge just because they did not personally examine every
single detail before they, as the final approving authorities, affixed
A written request for a cash advance is made by paymaster Luz their signatures to certain documents. The Court explained in that case
Gonzales (Gonzales), who then submits it to Cash Division Chief that conspiracy was not adequately proven, contrary to the case at bar
Bacasmas for approval. Once the latter approves the request, she in which petitioners' unity of purpose and unity in the execution of an
affixes her initials to the voucher, which she forwards to City Treasurer unlawful objective were sufficiently established. Also, unlike in Arias,
Cesa for his signature in the same box. By signing, Bacasmas and Cesa where there were no reasons for the heads of offices to further
certify that the expense or cash advance is necessary, lawful, and examine each voucher in detail, petitioners herein, by virtue of the
incurred under their direct supervision. duty given to them by law as well as by rules and regulations, had the
responsibility to examine each voucher to ascertain whether it was Note: Arrangement is chronological according to class sessions. You may see
proper to sign it in order to approve and disburse the cash advance. repetitions and/or scattered transcripts of the same topic throughout the
material. This is because discussions were conducted across two distinct periods:
pre- and post- mock bar. Segregation was done only on the subject level: Local
ALFREDO ROMULO A. BUSUEGO, petitioner, vs. OFFICE OF THE
Government Law (Public Corporation) and Public International Law.
OMBUDSMAN (MINDANAO) [and] ROSA S. BUSUEGO,
respondents., G.R. No. 196842, October 09, 2013
LOCAL GOVERNMENT LAW
Facts:
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)

{PRE-MOCK BAR, August 29, 2014}
Concubinage under Article 334 of the Revised Penal Code; (2) violation
of Republic Act No. 9262 (Anti-Violence Against Women and Their First in my presentation would be the 2 kinds of corporation. Primarily,
Children); and (3) Grave Threats under Article 282 of the Revised a corporation can be classified as either private or public. This is
Penal Code, before the Office of the Ombudsman against her husband, fundamental. You will see later on that there are other nuances that
Alfredo, with designation Chief of Hospital, Davao Regional Hospital, we should need to know. So this definition I gathered from one of the
Apokon, Tagum City.||| eminent authors in law of municipal corporations, Judge Dillon. By the
way, there are about 3 or 4 well known authorities in local government
Ombudsman issued a resolution finding probable cause to indict law. I made use of their opinions as well in trying to effectively deliver
Alfredo and mistress for Concubinage. In the same resolution, it held the course to my students. So from time to time you will see that I will
that the motion of Alfredo to refer this case to the Office of the City be quoting from foreign authors. How did I come to know that these
Prosecutor, grounded on the fact that the criminal charges imputed foreign authors are indeed authorities on the matter. I surveyed
are not in relation to office||| was belatedly filed. Supreme Court decisions from 1901-present. And these authors are
consistently quoted: Machellin, Dillon, Poley...
When the matter was brought to SC, Alfredo claims that the
Ombudsman should have referred Rosa's complaint to the Department By definition, a private corporation is -
of Justice (DOJ), since the crime of Concubinage is not committed in
relation to his being a public officer. ||| Kinds of Corporation, in general:
Issue: WON the complaint was properly filed before the Office of the  A private corporation is one that is formed for some
Ombudsman private purpose, benefit, aim or end, such as a business
corporation formed and organized under a general law on
Ruling: corporation. It is created for private objects. (Dillon, supra.)
 A public corporation is one that is organized for
YES, the Ombudsman has primary jurisdiction over offenses government of a portion of a state, such as a local
cognizable within the Sandigabayan. government unit. It is created for public purpose. (Dillon,
supra.)
To reiterate for emphasis, the power to investigate or conduct
preliminary investigation on charges against any public officers or
employees may be exercised by an investigator or by any provincial or Of course a typical example is any private corporation organized under
city prosecutor or their assistants, either in their regular capacities or the corporation code of the Philippines. What is problematic however is
as deputized Ombudsman prosecutors. The fact that all prosecutors how to tell whether a corporation is public. Sayon ra manang to
are in effect deputized Ombudsman prosecutors under the OMB-DOJ determine private; while to determine whether a corporation is public
circular is a mere superfluity. The DOJ Panel need not be authorized requires another level of analysis. But by definition a public corpo is
nor deputized by the Ombudsman to conduct the preliminary …(pls refer to slide above). And an example of which, according to
investigation for complaints filed with it because the DOJ's authority to Judge Dillon, is a local government unit. So it is created for public
act as the principal law agency of the government and investigate the purpose. If you look at the definition you might be able to answer this
commission of crimes under the Revised Penal Code is derived from question …
the Revised Administrative Code which had been held in
the Natividad case [citation omitted] as not being contrary to the What are the tests in determining whether a “corporation” is public or
Constitution. Thus, there is not even a need to delegate the conduct of private?
the preliminary investigation to an agency which has the jurisdiction to
do so in the first place. However, the Ombudsman may assert its
primary jurisdiction at any stage of the investigation.||| How many tests are there? There are 2 tests in determining whether a
corporation would qualify as public corporation.
[END OF LAW ON PUBLIC OFFICERS] One is purpose test. Which means that we need to look into the
purpose for which a corporation is organized if whether it is
established for governmental purpose/public purpose. If the answer is
yes then under that test, the corporation is public.
The other test is the relationship test. Under which the question
BY: would be what is the relation of the corporation to the state. If the
Bayalas, Biton, Borres, Caminade, Cañada, Chan, Duran-Ybañez, Fookson,
Gallego, Gan, Judilla, Lao, Lesigues, Lulu, Lumapas, Ortezuela, Otero, answer is that the corporation would be established for the purpose of
Paglinawan, Robles, Salas, Sanchez, Tampus, Tapia, Ubod making the corporation an agent of the state in the performance of its
functions then it is public. So it’s not much of the purpose but the Dissent of J. Carpio
corporation’s relationship to the state. Meaning, it is intended to
perform the function of the government and therefore it is meant to be Indeed, the BSP performs functions which may be classified as
an agent of the state. If the answer is yes, then it is public. public in character, in the sense that it promotes “virtues of citizenship
and patriotism and the general improvement of the moral spirit and
I am sure you have encountered these precepts when you had read fiber of our youth." However, this fact alone does not automatically
the case of BSP vs. COA when we were studying administrative law. make the BSP a GOCC …
But we studied this case, in light of admin law, for the purpose of
highlighting the concept what is instrumentality of the state. And there  Authorities are of the view that the purpose alone of the
we learned that instrumentalities of the government include public corporation cannot be taken as a safe guide, for the
corporation. So the moment it is classified as public corporation, it is fact is that almost all corporations are nowadays created to
considered as instrumentality of the state. In which case, it is then promote the interest, good, or convenience of the public.
within the jurisdiction of Commission on Audit. So this problem is taken  The true criterion, therefore, to determine whether a
from the very facts of BSP vs. COA. corporation is public or private is found in the totality of
the relation of the corporation to the State. If the
Problem corporation is created by the State as the latter’s own
agency or instrumentality to help in carrying out its
The Boy Scouts of the Philippines (BSP) was created by C.A. No. governmental functions, then that corporation is considered
111 “to promote …the ability of boys to do useful things for public; otherwise, it is private.
themselves and others,…and to inculcate in them patriotism, civic
consciousness and responsibility, courage, self-reliance, discipline, and
kindred values, and moral values, using the method which are in There is a good reason for this, kung public purpose lang, ingon
common use by boy scouts.” BSP is not anymore a GOCC. The Justice Carpio, what about schools? Dba to educate is a governmental
National Executive Board of BSP no longer consists of several Cabinet function? Yes because it is one of the duties of the state. Dba
Secretaries, except the Secretary of Education, under R.A. No. 7278. education or hospitalization public purpose mana? So if we go by the
COA asserts jurisdiction over BSP contending that it is still a analysis of the majority opinion according to Justice Carpio, then
government agency. private schools and private hospitals should likewise qualify as public
Is BSP still an “instrumentality” of the government and perforce corporation if we go by the purpose test only. Therefore, it should not
under COA’s jurisdiction? be the only test, you should apply the relation test in that regard.
Now notably the Supreme Court in BSP vs. COA declared that BSP is a Justice Carpio mentioned a case decided in 2007 applying the relation
public corporation. It is a public corporation but what test was used by test -
the majority opinion? This means that you should take note the dissent
of Justice Carpio. The majority declared that it is a public corporation Applying the above test, provinces, chartered cities, and
and 2 reasons were given. 1st, It was declared in the law that created barangays can best exemplify public corporations. They are
BSP itself, Commonwealth Act no. 111, if you look at the title of the created by the State as its own device and agency for the
charter of BSP, it says “an act creating a public corporation to be accomplishment of parts of its own public works. (citing
known as Boy Scouts of the Philippines. The other reasoning of the Philippine Society for the Prevention of Cruelty to Animals v.
court was (2nd) it was created for a public purpose, and that public Commission on Audit [2007])
purpose was to inculcate upon the youth, virtues of citizenship and
patriotism. Kana kunu is public purpose. In other words the majority
opinion applied the purpose test. The true public corporation nga wala gyud debati class - local
government units; kung per se or objectively speaking atong hisgutan.
BSP vs. COA (2011) Because you know for a fact that sometimes we characterize things for
a limited purpose, and only for resolving a particular issue. But, if we
The BSP still remains an instrumentality of the national are to look at the corporation per se and classify it, not for any limited
government. It is a public corporation (this is declared in C.A. No. purpose but per se, then we go by the relation test.
111 itself) created by law for a public purpose, attached to the DECS
pursuant to its Charter and the Administrative Code of 1987. It is not Let’s look at Special Kinds of Corporations. This is important because
a private corporation which is required to be owned or this was asked in the bar, for one; and secondly, you should be aware
controlled by the government and be economically viable to justify also. There are 3 kinds:
its existence under a special law.
[See, however, the dissent of Justice Carpio.]
But what did Justice Carpio say in his dissent? Carpio said that yes, it
is true that it has public purpose but this fact alone does not make
automatically the BSP a public corporation (GOCC)…
Special Kinds of Corporations: Problem
1. Corporation De facto – the consent of the state is implied The Municipality of Badong was created in 1964 by Executive Order
rather than expressed, by the general consent to that kind of No. 123. In 1965, the case of Pelaez vs. Auditor General nullified E.O.
corporation, even though the conditions of incorporation are 123 on the ground that the creation of a municipal corporation is a
not substantially complied with. legislative, not executive, function. The officials of Badong argued that
2. Corporation by prescription – under the principles of its creation must be affirmed because of the “Doctrine of Operative
common law, where a body of men have been for a long Fact”. Rule on this contention.
time in the exercise of corporate powers, a presumption
arises of an ancient charter granted to their predecessors,
making the exercise of such powers by them lawful and You remember in the case of Pelaez v. Auditor General, 33 Executive
rightful, a lost grant or charter from the crown being Orders creating municipal corporations were declared by the Supreme
presumed. Teodorico C. Martin, Commentaries and Court as unconstitutional on the ground that the President cannot
Jurisprudence on Philippine Commercial Law (1986). create a municipal corporation; it is a legislative function.
3. Corporation by estoppel
Fletcher: “While as against the state a corporation cannot be What is interesting here is the argument of officials of Badong saying
created by the mere agreement or other act or omission of that the Municipality of Badong must be affirmed because of the
private persons, yet as between private litigants they may, Doctrine of Operative Fact. What’s wrong with the argument?
by their agreements, admissions, or conduct, place
themselves where they would not be permitted to deny the The Doctrine of Operative Fact applies only to the acts of the officers
fact of the existence of the corporation.” of the Municipality of Badong and not to its status. You don’t apply the
Doctrine of Operative Fact to make an unconstitutional act
constitutional. It’s a wrong application. The doctrine applies to the
I must have shown this in one of our exams in Local Government Law acts; dili i-declare nga valid ang corporation. Of course, it will be
- declared invalid if the desires to have it declared (as you know, it is an
option on the part of the state). But as to the effects, those will be
Bar Exam (2011) recognized as if the same were acts of officials of de jure corporations;
so considered valid.
Define/explain the following:
You know why that is important? Look at this question in the Bar exam
A. Doctrine of operative facts (1%) -
B. De facto municipal corporation (1%)
C. Municipal corporation by estoppel (1%) 2004 Bar Exam
Suppose that one year after Masigla was constituted as a municipality,

Just transpose the concepts of Corporation Law on the kinds of the law creating it is voided because of defects. Would that invalidate
corporation into municipal corporations. the acts of the municipality and/or its municipal officers?
ANSWER: (Mun. of Malabang v. Benito)
Let’s go then to the Kinds of Public Corporation -
Kinds of Public Corporation So specific siya sa acts. What is the answer? Doctrine of Operative
Fact, as established in Municipality of Malabang vs. Benito.
1. Quasi-public corporation – a public corporation that
renders public service or supplies public wants, such as “The Doctrine of Operative Fact” says the Supreme Court “recognizes
utility companies. It combines the elements of both public the existence of the law or executive act prior to the determination of
and private. Though organized for private profit, they are its unconstitutionality as an operative fact that produced consequences
compelled by law or contract to render public service. that cannot always be erased, ignored or disregarded. In short, it
(Dillon, supra.). E.g. public utility companies. nullifies the void law or executive act but sustains its effects. It
provides an exception to the general rule that a void or
2. Municipal corporations - body politic and corporate unconstitutional law produces no effect.
constituted by the incorporation of the inhabitants for
purposes of local government thereof. Recently referred to Here, you need to be careful; because had the question been, would
as “local governments”. Masigla qualify as a de facto municipal corporation, after the law
creating it had been voided? That’s a different question.
You remember that there are two reasons/justifications for the

It is called Quasi-public Corporation because in reality it is a private
doctrine of de facto municipal corporation: (1) Operative Fact Doctrine,
corporation. Those organized under Corporation Code of the
and (2) Doctrine of Prescription – that municipal corporations, even if
Philippines, so that’s a general law, so private sya. But it may be
created irregularly from the start may be entitled to recognition as de
characterized as quasi-public if it performs some public purpose
facto municipal corporation after a long period of time. Remember
functions.
Municipality of Jimenez vs. Bas, 40 years usa pa na question. Unsa
Let me show to you a problem that I did not show to you when you may gi-ingon sa Supreme Court? At least de facto siya. Galing lang na
were under me: de jure kay gi-recognize sa Ordinance or Appendix to the 1987
Constitution kay gilista as one of the local government units
constituting a particular legislative district. respect to component barangays, shall ensure that the acts of their
component units are within the scope of their prescribed powers and
So in the problem I gave, that’s almost the same - 1 year after, would functions.
it qualify as de facto? What I’m trying to say is this: pwede diay class
nga ang municipal corporation may not be declared even as a de facto Dili cya complete in the sense nga wala nag mention of autonomous
municipal corporation because di siya mu-qualify, like the case of
region ani sec. 4. So to be able to answer the real relationship
Andong. But even if the municipal corporation may not qualify as a de between the president and the autonomous region, we have to go
facto municipal corporation, we treat the acts differently. We apply further. so kana sec. 4 sa provinces, city, mun., and brgy. will be
Doctrine of Operative Facts insofar as the acts are concerned because applicable but in the case of autonomous region naa specific provision,
as observed di naman ta orthodox view insofar as the effects of Sec. 16.:
unconstitutionality are concerned. Unsa naman atong gi apply? Modern
view na. The orthodox code was used in the past. It was based on the Section 16. The President shall exercise general supervision over
Civil Code (1949 which took effect in 1950?). autonomous regions to ensure that laws are faithfully executed.
To recap: A municipal corporation may not qualify as de facto Because puede man gud nga pa-dramahon ra ka sa exam nya tagaan
municipal corporation but that doesn’t mean that its acts may not be ka ug basic distinction between province, city, municipality, and
honored as valid because we can apply also the Doctrine of Operative autonomous region kai in reality naa man sila distinction.
Fact.
In regard to the degree of the autonomy kai di ba naa distinction. Ang
But of course, obviously if mu qualify sya as de facto municipal LGU other than autonomous region is governed by the Local Gov.
corporation, with more reason nga ang acts kay mao mana ang effects Code and at the same time by their charters in so far as the provision
sa declaration of a de facto municipal corporation – that the acts of the is not inconsistent with the LGC. Ang sa autonomous region it is
de facto municipal corporation will be considered as acts of officials of goverened primarily by their Organic Act, nya unsa man difference?
a de jure municipal corporation. Kani mga prov., city, mun., and bryg. restricted ang power,mostly
delegated, but in the case of autonomous regions specific ang
Municipality of Malabang vs. Benito (1969) Constitution nga there are areas where autonomous region can have
E.O. 386 creating the municipality in question is a nullity pursuant to original power unlike in LGU na any other power can only be by
the ruling in Pelaez v. Auditor General and Municipality of San Joaquin delegation. Where can we see this? Sec. 20, mandated areas that
v. Siva. The E.O. therefore “created no office.” This is not to say, must be in the organic act:
however, that the acts done by the municipality of Balabagan in the
exercise of its corporate powers are a nullity because the E.O. is, in Section 20: Within its territorial jurisdiction and subject to the
legal contemplation, as inoperative as though it had never been provisions of this Constitution and national laws, the organic act of
passed. For the existence of E.O. 386 is “an operative fact which autonomous regions shall provide for legislative powers over:
cannot justly be ignored.” There is then no basis for the respondents’
apprehension that the invalidation of the executive order creating
1. Administrative organization;
Balabagan would have the effect of [..]settling many an act done in
2. Creation of sources of revenues;
reliance upon the validity of the […] municipality.
3. Ancestral domain and natural resources;
4. Personal, family, and property relations;
5. Regional urban and rural planning development;
As I have said, that is important or there is something we need to
6. Economic, social, and tourism development;
clarify in that regard. Mao man guy giingon sa SC aning Malabang vs.
7. Educational policies;
Benito. Kay ang EO 386 itself was declared by the SC in the Pelaez vs.
8. Preservation and development of the cultural heritage; and
Auditor General nga it created no office; but insofar as the effects,
9. Such other matters as may be authorized by law for the
ingon sila it is an operative fact which cannot just be ignored.
promotion of the general welfare of the people of the region.
Territorial and Political Subdivisions:
Is the following statement correct?
Regular LGU’s: Provincies, Cities, Municipalities, and
Barangays X City is an independent component city because it is beyond
Autonomous Regions: Muslim Mindanao and Cordilleras –Art. X, the supervision of the Province where it is situated, while Y city is a
Sec. 1 (Constitution) component city because the Province where it is situated exercises
Special LGU’s: Special Metropolitan Political supervision over it.
Subdivisions –Art. X, Sec. 11 (Consti.)
Question: What is the extent of the power of the President Incorrect. I gathered this the way my students answer nga naa mga
over the above political subdivisions? State your legal basis. misnomer ba. What makes independent component city is not the fact
that it is beyond the supervision of the province. That is the effect that
it is beyond the supervision. It is simply a consequence of its status as
We go to ART. 10 of the Constitution. As for this regular political an independent component city. The same is true with a component
subdivision ang answer nato would be sec.4 Art. 10: city , that it is within the supervision of the province, is simply a
consequence of its status as a component city. What makes it
independent component city or component city is not whether it is
Section 4. The President of the Philippines shall exercise general
under the supervision of the province.
supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities with
9009, an act amending section 451, LGC
Kinds of Cities: So what will happen now? My humble submission would be: the
moment we create a city under RA 9009, therefore complying with the
 Component City – not qualified to be highly urbanized; 100M income requirement, that city should be automatically
inhabitants can vote for provincial candidates and can run considered HUC. Why is that important? It is important because ang
for provincial elective posts = under the supervisory power idea man gud sa HUC is that is something to be converted pa ba out of
of the province an ordinary city, either from a component or independent city. Just like
 Independent Component City – independent in the in the past. How do we establish an HUC? Di ba by way of conversion.
sense that the charter prohibits the voters from voting for And Conversion would not require a law. It is different when you
provincial elective posts = outside the supervisory power of “convert” a component into an independent component, because you
the province (Abella v. COMELEC) need a law there (a law is required for conversion in that instance).
 Highly Urbanized City – independent from province by Likewise, a municipality to be converted to a city, the more reason that
reason of status = outside the supervisory power of the a law is required as well for its conversion.
province
BUT IF YOU CONVERT an ordinary city (which is either component or
independent city) into a Highly Urbanized City (HUC), WALAY LAW
First, we need to know what is a component city. Simple ang defintion REQUIREMENT FOR CONVERSION. What is required is merely an
sa CODE: a component city is a city that is neither independent application to the Office of the President , upon submission of the
component city or highly urbanized city. Mao gyud nay sakto. So una proof of compliance, for highly urbanized city status.(I’m talking about
nimu tanawon if ICC or HUC, otherwise , component city gyud na cya. the income of 50M and population of at least 250K). If ma comply na,
the President is mandated to issue a conversion within a period of 30
What is then an independent component city? What makes an days, no discretion ang President since it is mandated by law. Mao na
independent component city is a special provision found in the charter. ang process sa conversion.
When what is found in the charter is this prohibiton on the part of the
voters of that city from voting provincial elective posts and as Naturally ang effect would be if mag-create ka under 9009, you do not
interpreted in Abello vs. COMELEC, that also includes prohibition to have to go through the process of conversion. So that is something
run for provincial elective office. So the 2 prohibitions are from voting Congress should look into. So it does not make sense to say that..you
and from running in the provincial elective posts. Okay, so kung naa create a city out of a municipality. Unya 100M income requirement
na nga provision, that’s what makes a city an independent component complied with, so city naka…so what is the status now of the
city. Consequently, beyond the supervisory power of the province. municipality? Component city or HUC? Maka argue ba ka nga that
municipality cannot be a HUC kay wa man cya ni follow sa IRR na
Next, what is a highly urbanized city? Do we have to see in the charter dapat ka mag-apply ngadto sa office of the president… FOR ME THAT
if there is the same prohibition to vote or run just like in independent? IS A USELESS PROCEDURE if mu require pa ka anang application to
NO! We just have to look into the income of the city to determine if the office of the president. So that is one area that the court should
whether it is HUC. Income ra gyud! So what makes it as a HUC, and clarify.
beyond the power of supervision of the province is its STATUS. And its
status is determined by income. Another important principle. You remember this case? I’m talking
about a special situation in creating cities…
Confusingly though in the code (referring to the LGC, ana si sir libug
kay ang LGC kay murag hastily done by its framers, likewise katong RA Problem
9009 ni Pimentel hastily done pud) …di ba sa RA 9009, if a
municipality is to be upgraded to a component city, ang income In 1998, by virtue of RA No. 8528, the City of Santiago, Isabela
requirement kay di ba 100Million na man (previously before RA 9009, was converted from an independent component city to a component
income requirement lang to become a Compoent is 20M). Mas lisud ni city. The constitutionality of RA No. 8528 was assailed on the ground
karun. Di lang 100M ang income gi kinahanglan, nangailangan pud ang of lack of provision of the same law submitting the same for
RA 9009 na the “100million” should be locally generated. Meaning ang ratification by the people of Santiago City in a proper plebiscite. The
internal revenue allotment should not be taken into account in issue was whether the downgrading of Santiago City from an
computing the 100Million. [Transcribers’s explanation: if 90 million independent component city to a mere component requires the
ang locally generated income nimo then na kay 20 million na IRA, approval of the people of Santiago City. Decide.
supposedly ni-exceed na ang imong income sa 100M requirement so
qualified naka. However pursuant to RA 9009, ang IRA is not to be
taken into account, thus ang katong 20M should not be added to the There are 2 possibilities: whether you upgrade a city or downgrade a
90M] city. Kanag pag-upgrade or pag-downgrade, it could be for a political
reason.
What is RA 9009? It is an act amending section 451 of LGC. Specific
man pud cya. Amending sec. 451. Now if you look at the code (Although kanang mga politicians, pwede gud na pina-agi “for the
kanang 451 it is the “city” requirement. So ang uban na provision dili benefit of the constituents”. Nya mu-tuo pud ta dayun. But sa tinuod
na cya necessarily apil sa amendment sa RA 9009.(so the amendment naa gyud na political complexion. For example during the time of
is specific and it does not apply to all provisions of the LGC but only a former Gov. Gwen Garcia, diba naa man toi isyu na “dili man gyud
specific provision-sec 451, just take a look sa law nalang to be sure). mapildi si Gwen sa province”.. aha! Based on a study, murag pildi man
So for highly urbanized city, ang income requirement is still 50million cya kung Cebu City lang ang basehan sa botar. So nganu kaha sa
gihapun. HUC in the LGC is still 50 million, kay specific man ang RA probinsya taas ang rating ni Gwen pero diri sa city gamay man.. Mao
tong ni float ang idea ba na what if Cebu City should be converted to a
component city para lang gyud mu-botar. So i-downgrade.. so diba dili Umali vs. COMELEC (April 2014)
ba na for political purposes.)
While conversion to an HUC is not explicitly provided in Sec. 10,
So unsa diha ang issue? The issue is on the plebiscite. So first issue is- Article X of the Constitution, xxxx the conversion of a component
WON plebiscite is required. Second issue -who should participate in city into an HUC is substantial alteration of boundaries. As the
such plebiscite. phrase implies, “substantial alteration of boundaries” involves and
necessarily entails a change in the geographical configuration of a local
Kbaw naman mo kanang mga easy problems in the bar na kato gani government unit or units. The phrase “boundaries” should not be
mu-carve out ug territory from the mother province. Di ba if mu carve limited to the mere physical one, referring to the metes and bounds of
out ka from mother province then the entire province should the LGU, but also to its political boundaries.
participate not merely the constituents of the new territory (political
units directly affected). And as interpreted by the SC in Tan vs.
COMELEC ang phrase “affected” would be as a result of reduction in This is the opposite. UPGRADE. From being a CC into a HUC, so
territory, reduction in population, and most importantly a reduction in kinanglan careful ka. Not all upgrades will you apply Umali vs.
economic aspect (INCOME). Comelec. Dapat, squarely applicable siya; from a CC converted into
HUC. So di ni therefore mu apply, if the upgrade will be from ICC
So kung bu-akun nimo ang Cebu Province, North ug South. So the upgraded into HUC. Do you know why? The SC said, in what areas
South being a new province, the North province will also participate. gani mu required ang plebiscite? Double Ten. In cases of CREATION,
Mao na ng nahitabu sa Tan vs. COMELEC. Kato na cyang Negros DIVISION, MERGER, and the last one would be SUBSTANTIAL
Oriental ug Occidental.. nya nagcreate ug bag-o..kato Negros del Sur ALTERATION OF BOUNDARIES. Do you know where upgrading of CC
pero wala gi apil ang Occidental Negros. So gi-nullify sa SC ang to HUC falls under these circumstances? Not creation according to the
plebiscite. SC.
In this case, this is an actual case…so by virtue of a law, the city of Not unlike a 2004 Bar question, where 80 brgys, 30 sa west, 50 sa
Santiago, Isabela was converted from an ICC to a mere component so, east. Ang 30 left sa ilang economic development ni carve out and
DOWNGRADING siya. So it was questioned because there was no made themselves a new municipality. The first question would be is
provision in the law requiring plebiscite. plebiscite required? The answer would be yes because this involves
creation.
So was plebiscite required in this case? This is an old case.
In this case of Umali, the reason for upgrading is SUBSTANTIAL
Miranda vs. Aguirre (Sept. 1999) CHANGE OF BOUDARIES. If you upgrade a CC to HUC, plebiscite is
required not because of creation, but because of substantial change of
The Supreme Court ruled that plebiscite was required even in boundaries.
cases of “conversion”.
So kana diay “substantial change of boundaries” dili lang na physical,
It observed that the common denominator in Section 10, Article X of pwede sad POLITICAL boundaries. Tinood ba na? Because if you
the 1987 Constitution is the material change in the political and convert CC to HUC, wa may na change sa iyang physical territory.
economic rights of the local government units directly affected as well Same ra gyapon. Pero nay political change. Why? Beyond supervision
as the people therein. It is precisely for this reason that the naman siya sa province. Dba CC siya before, so part siya sa territory sa
Constitution requires the approval of the people in the political units province. Dba? Because CC man siya. So part siya sa territory sa
“directly affected.” province. Mao bitaw Collection sa component city sa real property
taxes dunay share ang province. Because the real properties found in
the CC is also found in the province because component man siya. The
SC: Plebiscite is required. But the question is, according to the court, same is true with municipalities. Pero the moment it becomes HUC,
asa man ang plebiscite i-hold? The SC said, dira rapud sa Santiago diba beyond na siya sa supervision sa province, so politically
City, sila man ang affected. Sila kuno ang directly affected. We will try (ideally/theoretically) kuno, na-carve out siya from the territory of the
to analyze this case no if correct pa ba gyud na diha dapita. This SC province.
ruled that plebiscite is required in this kind of conversion.
And therefore, balik ta sa plebiscite, and therefore, ang province diay
Dalia rana timan-an class kung plebiscite requirement. Double TEN. affected. So instead of in the case of Miranda vs, Aguirre - didto lng sa
Section 10, Article X 1987 constitution, arong maka pang hambog ta. city involved, downgrading; ang upgrading entire province man
Let’s try to imagine that you’re participating in a plebiscite and then affected kay ma separated na daw siya politically, to that extent
you will drop 2 tens in the ballot. directly affected gihapun ang mother province.
So kani diay siya, sa pag downgrade, kato rapud Santiago City. So Umali vs. COMELEC is a new case to remember, this involves
conversion, upgrading but be careful, dili generic upgrading,
NOW THIS IS THE UPDATE. UMALI VS COMELEC, APRIL 2014
component city into HUC, because if it is independent component city
unya i-convert into HUC, ang iya reasoning sa court dili na mu-apply
kay ang ICC beyond naman daan supervision of the province. (Sir
comments: Nindot kaayo na siya pang-MCQ!)
Another update is the case of Cagas vs. COMELEC. You have the
provinces of Davao del Sur and a new proposed Davao was supposedly
created called Davao Occidental. About 5 or 6 municipalities, including
Digos mulahi cla sa Davao del Sur, tawgun na daw silag Davao the case of province. However, the exception was given under the IRR.
Occidental.
The 2011 case ruled that there is no rhyme and reason why the
What happened was there was a law. The law, as expected, scheduled province has no exception when there is an exception in the case of
the plebiscite 120 days from the signing of P-Noy. So mu-come out iya other LGUs. Thus, in case of a province, it may not comply with the
schedule around August of 2013, if you follow the statute creating land area requirement if it consists of islands; it only needs to comply
Davao Occidental. So based on the law fixed ang sched, kay under with the income requirement. In the case of Province of Dinagat, its
the LGC within 120 days. True enough, the law creating Davao inhabitants did not reach 250,000 and its land area did not also reach
Occidental fixed a date, it fell on 2nd week of August 2013. Unya kay 2,000 sq.km.
barangay election man to pag-Oct 28, 2013. So niingun ang COMELEC
dili mi mu-hold ug plebiscite anang August kay duol na ang October, 2009 Bar
ato lang i-synchronize sa barangay elections para maka-save ug
resources. It was questioned; you can’t undo the mandate of law. The The Municipality of Bulalakaw, Leyte passed Ordinance No.
law said August. 1234, authorizing the expropriation of two parcels of land situated in
the poblacion as the site of a freedom park, and appropriating the
The COMELEC can postpone the holding of a Plebiscite (and funds needed therefor. Upon review, the Sanggunian Panlalawigan of
election) to another date Leyte disapproved the ordinance because the municipality has an
existing freedom park which, though smaller in size, is still suitable for
The COMELEC has “exclusive charge of the enforcement and the purpose, and to pursue expropriation would be needless
administration of all relatives to the conduct of elections for the expenditure of the people’s money. Is the disapproval of the ordinance
purpose of ensuring free, orderly and honest elections.” The text and correct? Explain your answer. (2%)
intent of Section 2(1) of Article IX(C) is to give COMELEC “all the
necessary and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful, and credible elections.” (Cagas I’m referring to the case of Moday vs. CA. The topic here is the
vs. COMELEC, GR No. 209185, October 23, 2013) extent of the review power of the Mother Sanggunian. As you know,
component cities and municipalities are subject to the supervision of
the province. One way of realizing this relationship of supervision is by
But the SC affirmed the plenary power of the COMELEC. Ngano asking component units to submit their ordinances and resolutions
gibutang nako ang election nga plebiscite man unta ni sa creation sa approving a local development program. As a rule, all ordinances are
Davao Occidental? Because what was applied by the court was the reviewable while resolutions are not. However, there is one kind of
provision in the Constitution (Sec. 2 Par.1, Article IX-C) that the resolution which can be reviewed: one approving a local development
COMELEC has all the necessary and incidental powers for it to achieve program. The idea here is coordination. But it is important for you to
free honest orderly and credible election, that’s one. Second, under the know the extent of the reviewing power of another Sanggunian.
omnibus election code, nay provision sa postponement of election,
therefor, the power to postpone has already been delegated to the Mother Sanggunian’s REVIEW POWER:
COMELEC by Congress via Omnibus election code, so duha ka reason:
 Grounds:
1. Plenary power when it comes to conduct of the election. If by Sangguniang Panlalawigan:
2. Congress has already allowed the COMELEC, under the 1. ULTRA VIRES (Sec. 56(c), LGC) [2009 Bar]
Omnibus Election Code, to postpone the election if the
grounds stated therein, are present. (such as force majeure, If by Sangguniang Panlungsod/Bayan:
when it was really difficult or impossible to hold the election, 1. CONSISTENT WITH LAW
etc.) 2. CONSISTENT WITH CITY/MUN. ORDINANCES (Sec. 57,
LGC)
So it was difficult probably because of the gap between August to
October. Of course, it’s a sound policy to synchronize such activity
with the regular elections of the barangay. But, I don’t know if the difference between these two provisions is
deliberate. If you come to think of it, the grounds under Sec. 57 would
The case of Navarro vs. Court of Appeals involves a particular still be considered ultra vires.
provision in the IRR which provides for exemption as to compliance of
the land area requirement for province. Application to the problem: If you apply this to the problem, the
authority of the Sangguniang Panlalawigan is not without limitation. It
Creation of an LGU will require generally three criteria but there are is limited is whether it is ultra vires or not. In the problem, there is a
certain LGUs where only two criteria are required; the constant there is question as to the power to expropriate. The power to expropriate is
income requirement. In the case of a province, it needs to comply with indeed a power that any LGU may exercise so therefore it is intra vires,
the - not ultra vires. So, considerations outside of that are beyond the
power of the reviewing Sanggunian. In this case, the reviewing
1. income requirement of 20M, which includes the IRA, AND Sanggunian does not say that the Municipality of Bulalakaw does not
have the power to expropriate because Sec. 19 of the LGC grants such
2. either a)population of 250,000 inhabitants (not registered voters)
power to all LGUs. On the contrary, the Sangguniang Panlalawigan’s
OR b) land area of 2,000 square kilometres.
reason is rather a political question: because the municipality has an
existing freedom park which, though smaller in size, is still suitable for
In the case of municipalities and component cities, there is an
the purpose, and to pursue expropriation would be needless
exception: the land area requirement need not be complied with if the
expenditure of the people’s money. It is therefore not an ultra vires
municipality consists of one or more islands. There is no exception in
ground. It is about wisdom, in other words, thus not a valid ground. So, basically these are the steps in determining whether a national
government’s project in the locality is valid.
Compare with VETO POWER OF Local Chief Executive
1. Three requirements: Consultation, Prior approval by the
 Grounds: Sanggunian, and relocation site if there are settlers who will
1. ULTRA VIRES be affected.
2. PREJUDICIAL TO PUBLIC WELFARE 2. 2 conditions are met:
(Sec. 55, LGC) a. National government program to be implemented in the
locality
- Thus if GOCC, not applicable (Lina vs Pano)
For the veto power, there is still the ground of being ultra vires. But b. The program belongs to any of these:
there is also the ground that it is prejudicial to public welfare, this is a (1) may cause pollution;
very broad ground to veto an ordinance. (2) may bring about climatic change;
(3) may cause the depletion of non-renewable resources;
LGU’s and National Agencies (with Project Implementation (4) may result in loss of crop land, range-land, or forest
Functions) cover;
(5) may eradicate certain animal or plant species from the
 “Prior Consultation Before Implementation”: face of the planet; and
No project or program shall be implemented by (6) other projects or programs that may call for the eviction
government authorities unless the consultations in Sections 2(c) and of a particular group of people residing in the locality
26 of the LGC and prior approval of the Sanggunian concerned where these will be implemented.
obtained, provided that occupants affected shall be given relocation
site (Sec. 27, LGC). If you are asked a problem like in Lina, how many levels will your
answer be? At least 2. Number one: national government project. Ang
PAGCOR not part of national government kay GOCC siya. Number two:
There is a rule that requires prior consultation and prior approval of Lotto is not one of those mentioned in the slides in sec 26 and 27. This
the Sanggunian for projects that have to be implemented by the doctrine is already affirmed thrice. Well-settled na.
National Government in the locality. There are three requirements
here: LOCAL POLICE POWER
1. Consultation Local Police Power

2. Prior approval
3. Relocation site if there are settlers that will be affected.  THE “GENERAL WELFARE CLAUSE”:
Case in point is Lina vs Pano, involving lotto. Sec. 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily
Lina, Jr. vs. Pano (2001) implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
Section 27, in relation to Section 26, LGC applies only to those which are essential to the promotion of the general
programs by the “national government” and not applicable to welfare.
programs by “government owned or controlled corporations (GOCCs)”,
like PCSO.
Lawful means, lawful subject ra jud nah ang local police power.
The projects/programs mentioned in Sec. 27 should be
interpreted to mean projects/programs whose effects are among those
enumerated in Secs. 26 and 27, to wit, those that: (1) may cause
pollution; (2) may bring about climatic change; (3) may cause
the depletion of non-renewable resources; (4) may result in
loss of crop land, range-land, or forest cover; (5) may
eradicate certain animal or plant species from the face of the
planet; and (6) other projects or programs that may call for
the eviction of a particular group of people residing in the
locality where these will be implemented. (see also Province of
Laguna case (2005) and Bangus Fry Fisherfolk vs. Lanzanas (2xxx))
The argument was that there was no prior consultation nor prior
approval of the Sanggunian before lotto may be allowed in their
locality. But the SC said that Sec. 27 is not applicable. Why? First, Sec.
27 applies only to programs by the National Government. In this case,
the lotto was a program of PAGCOR, which is not the National
government but rather a GOCC. Second, Sec. 27 would only apply to
these areas or kinds of projects (see enumeration above).
Requisites for Validity of Local Police Power should not unduly burden, or it should not be unduly oppressive upon
individuals.
Tatel vs. Mun. of Virac:
Grabi naman sad. Hain naman atong privacy ani, yatig magduwa tag
1. must not contravene the Constitution AND statute pingpong sa atong lawn nya mag short lang tag busloton? 1 meter
2. not unfair or oppressive (also a constitutional gud, makita ta anang 1 meter oi. Lakaw lakaw ka didto nyag nay
requirement) nagpingpong, tanaw nato ngara busloton bya na atong short usahay
3. not partial or discriminatory (also a constitutional sa balay. Makitan nyang unsay color sa atong jockey. Mayra ug
requirement) nothing, kay obvious unsay color. Pero kung naa, aw mahibawan na
4. not prohibit, but only regulate lawful trade (see: De la nuon nga red! Hain naman nang privacy nato ana laliman kang 1
Cruz vs. Paras where an ordinance prohibited the operation meter nga concrete naa 100% solid unya kung mulapas na sa 1 meter,
of night clubs) 80% see thru pa gyud! Magbutang kag lungag lungag, unsaon kaha
5. consistent with public policy (because of the na pagkwinta sa building official ani no? Matik matikon siguro niya kun
requirements of valid delegation of legislative power) see: pila kabuok lungag, in relation to, diba naa man nay design ang mga
(Lim vs. Pacquing) where it was found out that the “national fences? Buang jud ning styla.
policy”was for National Government, not for LGU’s, to grant
“franchises” for operation of jai-alai. LGU’s can only regulate Declared invalid by the Supreme Court. This is the case, Fernando vs.
but not grant operation of jai-alai. St. Scholastica College. In this case, niintroduce nasad ug concepts sa
6. not unreasonable (also a constitutional reqt.) (See: constitutional law, kay of course this is a constitutional law precept.
Balacuit case where an ordinance penalized movie houses Two tests applied, Rational Relationship Test and Strict Scrutiny.
that charged full payment for admission of children between
7-12) Two (2) Tests are usually applied:
xxx also applies “lawful subject” and “lawful means” 1. Rational Relationship Test
requirements! 2. Strict Scrutiny Test
Using the rational basis examination, law or ordinances are upheld if

Most important requisite is number 4. Asked many times in the bar. they rationally further a legitimate governmental interest.
You have to identify first if there is a law declaring a trade or business Governmental interest is extensively examined and the availability of
illegal. If there is none, the most that the govt can do is regulate it and less restrictive measures is considered.
not prohibit it. But if the trade had been declared illegal by law, the
lgu’s should also prohibit it because they are mandated to comply with Applying strict scrutiny, the focus is on the presence of compelling,
mandatory statutes. rather than substantial, governmental interest and on the absence of
less restrictive means for achieving that interest. [Fernando vs. St.
The other requisites are included in the lawful subject and lawful Scholastica’s College, G.R. No. 161107, March 12, 2013]
means requirements. Lawful subject: the activity is a valid subject of
regulation because it affects the public and not just a private group.
Lawful means: the means employed is reasonably necessary for the Pero ato ato lang, mejo sayop gamay ang Supreme Court kay di man
accomplishment of the purpose of the law AND not unduly oppressive na all the time nga mag apply kag strict scrutiny. You apply only the
upon individuals. strict scrutiny test or the doctrine of strict scrutiny when they relate to
fundamental freedom. Pero not fundamental gani, you don’t apply the
Problem strict scrutiny. Because the constitutional law precepts, borrowed man
na from the United States. In the U.S., ila man nang gi dichotomize
The City of Marikina passed an ordinance which regulates the when to apply rational test and when to apply strict scrutiny test, it
construction of fence as follows: depends on the freedom involved. Kung fundamental freedom, speech,
religion, press, privacy, and other related high valued freedom,
“The standard height of fences or walls allowed under this ordinance doctrine of strict scrutiny.
are as follows:
(1) Fences in the front yard – shall be no more than one (1) Which means two things. Number 1, the government is mandated to
meter in height. Fences in excess of one (1) meter shall be establish a compelling state interest, okay, to justify the regulation of
of an fence type, at least eighty percent (80%) see-thru.” the freedom. Compelling state interest ang girequire.
The objective of the ordinance is “to discourage, suppress or Second, presumption of constitutionality will not apply. Meaning, the
prevent the concealment of prohibited or unlawful xxxx.” Is the moment there is an allegation of a suppression of a high valued
ordinance valid? freedom, you apply the doctrine of strict scrutiny which means instead
of the one alleging the unconstitutionality, proving its
unconstitutionality, it becomes the duty of the state or government to
Problem above is the Fernando case. Will the means employed prove that there is a compelling state interest to justify the regulation.
accomplish the objective of the law? Yes it will. But is that the least So the presumption of constitutionality will not apply, if that is the
intrusive means? Overbreadth doctrine in the White Light Corporation situation.
case.
But for non-fundamental non-high valued freedom, you apply the
So mao na. Unsa man nang lawful means? It will reasonably rational relationship test. Ang requirement lang is not compelling state
accomplish the purpose of the law. Ang twin requirement niya kay it interest, but a valid or legitimate governmental purpose. Unya ang
presumption of constitutionality continues to apply. Dapat giclarify na if you apply Section 447 of the LGC.
sa Supreme Court. In any case, mao kuno na ato gamiton when we
analyse cases. AC ENTERPRISES, INC. VS. FRABELLE PROPERTIES
CORPORATION (NOV. 2, 2006)
Valid ang pag apply sa strict scrutiny test because privacy man pud
gud na sa mga establishments especially mga residence and houses. Under Section 447(a)(3)(i) of RA No. 7160, the Sangguniang
So privacy sya, high valued freedom sya. Panlungsod is empowered to enact ordinances declaring, preventing,
or abating noise and other forms of nuisance. It bears stressing,
Unsa may mga non-high valued freedom for example? Your right to however, that the Sangguinan cannot declare a particular thing
ride a motorcycle with or without helmet, because right to life, dili na as a nuisance per se and order its condemnation. It does not
sya high value. Ug gusto ka mamatay, na hala. Pero right to life sa have the power to find, as a fact, that a particular thing is a nuisance
tanan, high value. Pero kung imong own right to life, di na na sya high when such thing is not a nuisance per se; nor can it authorize the
value. extrajudicial condemnation and destruction of that as a nuisance which
it its nature, situation or use is not such.
So correct na sya diri no. Iya gi apply ang rational basis examination,
mao na sya. Kung strict scrutiny, less restrictive means. Those things must be determined and resolved in the ordinary
courts of law. If a thing be in fact, a nuisance due to the manner of
So in 2010 bar, pwede na nimo answer answeran: its operation, that question cannot be determined by a mere resolution
of the Sangguniang Bayan.
2010 Bar
Note: Rule III, Section IV of PAB Resolution 1-C, Series of 1997 as
The Sangguniang Panglungsod of Pasay City passed an
amended, which categorically states that “Except where such
ordinance requiring all disco pub owners to have all their hospitality
would constitute a pollution case, local government units shall
girls tested for the AIDS virus. Both disco pub owners and the
have the power to abate nuisance within their respective
hospitality girls assailed the validity of the ordinance for being violative
areas…”
of their constitutional rights to privacy and to freely choose a calling or
business. Is the ordinance valid? Explain. (5%)
There is this power to enact ordinances declaring, preventing, or
abating noise and other forms of nuisance. But it cannot declare a
specific thing as nuisance per se. (2 kinds, per se or per accidents).
So what do you think is the objective of the ordinance? Public health?
Kani siya kai foul odor, fluid substance.
General welfare? The objective is lawful, the governmental purpose is
lawful. Unsa man ni sila? Hospitality girls, working in disco pub. Is that
Q: Industrial waste, per se or per accidens?
a lawful subject of regulation? Yes. Because ni cater man sila sa public.
Ilang services. Way problemang lawful subject. A: Per accidens kai di mana siya nuisance kung imong ma dispose
properly. So if imong I dispose improperly, it becomes a nuisance so
Ari kang lawful means. Reasonably necessary to accomplish the
per accidens.
purpose of the law? It may be necessary. But is it reasonable? Is there
a crime if you are tested positive of AIDS? AIDS doesn’t matter. So you Sa nuisance per se, dili pwede ang sanggunian. That’s the ruling of the
can argue along that line. It’s I think for me noh unduly oppressive court.
upon individuals. Depende kun napa bay mga hidden facts diha. So
you can argue along that line class. So kung nuisance per se siya, you have a specific provision in the PAB
(Philippine adjudication board) resolution 1-C series of 1997. That in
This one is another police power question: except in pollution cases, local government units shall have the power
to abate a nuisance within their respective area. Pero kung pollution,
2010 Bar PAB. Kai dili mana siya nuisance per se, per accidens.
ABC operates an industrial waste processing plant within Laoag Q: Unsa manang mga nuisance per se?
City. Occasionally, whenever fluid substances are released through a
nearby creek, obnoxious odor is emitted causing dizziness among A: dogs who have rabies. So pwede na i-abate even without a specific
residents in Barangay La Paz. On complaint of the Punong Barangay, court order. And the local government unit can do that because that is
the City Mayor wrote ABC demanding that it abate the nuisance. This per se. pero kung activity that is not considered by its very nature as
was ignored. An invitation to attend a hearing called by the nuisance, so per accidens siya, only the court can abate.
Sangguniang Panlungsod was also declined by the President of ABC.
The city government thereupon issued a cease and desist order to stop Kung pollution, naa tay pollution adjudication board.
the operations of the plant, prompting ABC to file a petition for
injunction before the Regional Trial Court, arguing that the city Problem
government did not have any power to abate the alleged nuisance.
Decide with reasons. Talisay City Vendors Association (TCVA) filed a case of
mandamus compelling the City Government of Talisay to close a road
Kahinumdum pa mo class ako a ning gi ask sa inyo? Or maybe e near the Talisay City Public Market from vehicular traffic contending
discuss ko na ining abot nato sa powers of the Sanggunian. Because that the road is too small for vehicles, especially four-wheeled vehicles,
here, this is the case of AC Enterprises. Familiar or dili? A Sanggunian such that vehicular traffic prevents small vendors from selling in the
cannot declare an act nuisance. It is a judicial function. The sidewalk. If you are the judge, will you issue a writ of mandamus?
sanggunian cannot consider by mere resolution an act nuisance. Kana
Q: opening, closing of road, mandatory or discretionary? In another case, epidemic, so there is an ordinance that can extend
outside the territorial boundaries of the City – important rule.
A: Favis case, diba? It is discretionary. So mandamus will not lie if the
function is not ministerial. So if it is discretionary and therefore not
ministerial, mandamus will not lie.
LOCAL EMINENT DOMAIN POWER
Exercise of Police Power, discretionary!
There are 3 aspects which are justiciable -
A mayor cannot be compelled by mandamus to issue a business
permit since the exercise of the same is a delegated police power What may be reviewed by the Courts:
hence, discretionary in nature. This was the pronouncement of this
Court in Roble Arrastre, Inc. v. Hon. Villafor (2006) where a Judicial review of the exercise of eminent domain is limited to the
determination was made on the nature of the power of a mayor to following areas of concern:
grant business permits under the Local Government Code. (a) the adequacy of the compensation,
(b) the necessity of the taking, and
(c) the public use character of the purpose of the taking.
Q: what makes opening and closing a road discretionary, not [Dela Paz Masikip case, citing Bernas]
ministerial and therefore not subject to mandamus?
A: (dapat ang reason i-provide sa imong answer) if you close or open So the issue of genuine necessity is justiciable. Why is that so?
a road, that is an exercise of police power. And the exercise of police
power is discretionary. So a mayor in this case of Roble Arrastre v. We distinguish between expropriation by the National Government and
Villaflor, a mayor cannot be compelled by mandamus to issue a those by the LGUs.
business permit. Because a business permit diay dili na taxation, but it
is regulation. Although naay fees, it is primarily regulation. And Issue is a political question if the expropriation was done by the
because it (business permit) is regulatory in character, it is police National Government where the law for example, Congress, has
power. Take note of that. judged the purpose as public and there is therefore need to initiate
expropriation. Courts cannot override the wisdom if what is involved is
In the example, closure so na combine ang opening and closing road. necessity if Congress exercises expropriation through their original
So important ato kai discretionary siya kai police power siya. So jurisdiction.
business permit, police power also, then it is discretionary as well.
If the expropriation is done by the LGU, delegate, exercising its power
One final point for local police power is this - as such, the Court will always have the power to inquire if the delegate
has exercised its power within the delegated authority. Courts can
Is local police power subject to territorial limitations? inquire into the genuine necessity. It is NOT a political question.
Discussion raba nato, why do we need to require territory under the 2011 Bar
code if we create a local government unit? It should be described with
its metes and bounds. So generally, may technical description siya. The city government filed a complaint for expropriation of 10 lots
The idea that ordinances, power of LGUs are generally territorial. to build a recreational complex for the members of the homeowners’
association of Sitio Sto. Tomas, the most populated residential
A: local police power ordinances take effect only within its territory. compound in the city. The lot owners challenged the purpose of the
But there are exceptions. expropriation. Does the expropriation have a valid purpose?
Indeed the corporation boundaries, I took this from 3 U.S. cases

supporting the idea that corporation boundaries mark the limit for the “Genuine Necessity”, required!
exercise of police power of the municipality. But in many cases, and in
the areas of preservation and public health, the municipality is granted  De la Paz Masikip vs. City of Pasig (2006):
police power beyond its boundaries.
Where the taking…is done for the benefit of a small
Territorial Limitations community which seeks to have its own sports and recreational facility,
notwithstanding that there is such a recreational facility only a short
The corporation boundaries usually mark the limit for the distance away, such taking cannot be considered to be for public use.
exercise of the police power of the municipality. But in many The Court defines what constitutes a genuine necessity for public use…
instances, for the preservation of the public health especially,
the municipality is granted police power beyond its
boundaries. Thus, it has been held that the municipality may exercise In dela Paz Masikip, there is a sports facility near a private subdivision,
police power in the protection of the territory …to insure cleanliness, the residents of the Subdivision wanted their LGU to expropriate the
and prevent any business and conduct likely to corrupt the fountain of sports facility. The Court struck down the LGU’s power to do that since
water supply for the city. The same principle was applied in a case they said that there was no genuine necessity. The Court explained
allowing a municipal corporation to establish a quarantine beyond what was genuine necessity for public use for Local Government; but
municipal boundaries and thus protect the citizens from epidemic of for National Government, Congress decides what is genuine necessity.
any contagious or infections disease. (Citations omitted)
Local Eminent Domain terms of payment, as well as the area.
Specific Requirements: (Sec. 19, LGC and Jesus is Lord Christian It is clear in the implementing rules -
School vs. City of Pasig case)
Meaning of “Valid and Definite Offer”
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local ARTICLE 35. Offer to Buy and Contract of Sale - (a) The offer to
government unit, to exercise the power of eminent domain buy private property for public use or purpose shall be in writing. It
or pursue expropriation proceedings over a particular private shall specify the property sought to be acquired, the reasons for its
property. acquisition, and the price offered.
(b) If the owner accepts the offer in its entirety, a contract of sale
2. For public use, purpose, or welfare, or for the benefit shall be executed and payment forthwith made.
of the poor and the landless. (cf. Sec. 33 of xxx IRR) (c) If the owner or owners are willing to sell their property but at a
price higher than that offered to them, the local chief executive
3. There is payment of just compensation, as required under shall call them to a conference for the purpose of reaching an
Section 9, Article III of the Constitution, and other pertinent agreement on the selling price. …When an agreement is reached by
laws. the parties, a contract of sale shall be drawn and executed.
4. A valid and definite offer has been previously made to

the owner of the property sought to be expropriated, but It shall not only be in writing, but it shall also specify the property and
said offer was not accepted. the reason for its acquisition…the reason shall become relevant later
on if the reason is either not accomplished, abandoned, or
changed…and then the price offered. So that is how the Implementing
What constitutes public use purpose? Rules narrated the requirements for a valid and definite offer.
Examples of Public use: socialized housing, construction or extension (2) The offer can be given to the registered owner. It doesn’t
of public roads or streets, construction of public buildings, have to be the actual owner, because it is possible that the registered
establishment of parks, playgrounds, plaza, construction of artisan owner is really not the owner. But you cannot require the LGU to go
wells, establishment of cemeteries. beyond what appears in the title. So, whoever is registered then the
offer made to him, even if later on a court decision will say another
What is common among these? Proprietary functions. person actually owns it, this (court decision) doesn’t matter. Whoever
is the registered owner as appearing in the title, the offer must be
Do not get confused with the public purpose requirement of made to him/her.
expropriation and the Governmental and Proprietary functions
of the LGUs. Because even if the maintenance of a public market, etc. (3) And of course there is proof that the offer is rejected.
are proprietary functions, these are still for public purpose when
talking of expropriation. And then there are also these requirements on more specifically in
cases of urban housing, low-cost housing, we have 2 additional
{August 30, 2014} requirements:
There are specific requirements for the exercise of Local Eminent Local Eminent Domain, cont’d …
Domain (see previous slide). But as you have already learned, the
general requirements for the exercise of Local Eminent Domain also
have to be complied with. Add: Filstream International, Inc. vs. CA and City of Manila,
G.R. 125218, January 23, 1998 (in re: expropriation for urban
Under Sec. 19, you have specific requirements: ordinance, public use, development and housing)
and then obviously you have just compensation. I would just like to
make mention of #4. As you have already learned, this is peculiar to 5. Priorities in the acquisition of land shall be complied with as
Local Government Units expropriating. This is not found in the mandated by RA 7279 (Urban Development and Housing Act
requirements for the exercise of Eminent Domain by the National of 1992) (meaning: private lands should be last in the
Government. selection of land!) (Sec. 9 of RA 7279)
4. A valid and definite offer has been previously made to 6. Expropriation shall be resorted to only when other
the owner of the property sought to be expropriated, but modes of acquisition have been exhausted (Sec. 10,
said offer was not accepted. RA 7279)
So, 3 components here: (1) There must be a prior valid and Making private lands as the last option: The complaint should also
definite offer. specify that there are no other lands that can be acquired for the
housing project. Kung naa pa, then that will be fatal to the cause of
In fact, the SC was very exacting that the requirements of valid and action of the LGU.
definite offer as found in our Obligations and Contracts should be
complied with. So it should be specific as to price, as to area, etc. It’s And then also, the other requirement is that expropriation shall be
not a valid and definite offer if the price is not even mentioned in resorted to only when other modes of acquisition have been
exhausted. If you look at Sec. 10 of RA 7279, there are other ways of Republic vs. Lim (2005)
acquiring the property.
The landowner is entitled to recover possession of the
The rule that if a property expropriated is agricultural, once it is property expropriated if the government fails to fully pay just
expropriated, it will be converted into other use. The problem with this compensation to the owner within a period of five (5) years
is the law on conversion might be relevant. And so is it required that from the finality of the judgment in an expropriation
the LGU concerned should first get the approval of the DAR before proceeding.
expropriation will be considered a valid act on the part of the LGU?
Province of Camarines Sur vs. CA: After 5 years from finality of judgment if there is no payment, the SC
said that the landowner will be entitled to repossess the property. In
The LGC does not require that LGU’s must first secure the approval of fact this is a landmark case.
the Department of Agrarian Reform (DAR) for conversion of lands from
agricultural to non-agricultural before they can institute expropriation The other possible situation is that what if after expropriation,
proceedings. Neither does the CARL provide that the power of the LGU
to expropriate agricultural lands is subject to the control of the DAR. a) the expropriator abandons the original purpose
Besides, determination of public use is “legislative”, not “executive” b) expropriator will not pursue that public purpose but it will be
(e.g. thru the DAR). devoted to another public purpose
Is there a remedy available to the landowner? This is important

The case of Province of Camarines Sur vs. CA says that there is no law because before, there was a 1921 case of Fery v. Municipality of
that requires a prior approval to be attained from DAR before this can Cabanatuan where the SC through an American judge ruled that the
be done. (Once expropriated, agricultural land becomes either moment the expropriator obtains the expropriated property in fee
residential, or industrial, commercial.) [BAR] simple, meaning without condition, then the expropriator becomes an
absolute owner of the property. This means that the expropriator can
use the property either for the public purpose for which it was
originally intended or not even use it all, meaning abandon the original
JUST COMPENSATION purpose.
Now on the matter of determining just compensation, when do you SC however modified that ruling in at least 2 cases. One is the case of
reckon the value of the property? In a situation where the taking Anunciacion Vda. De Ouano v. Republic.
precedes the filing of the complaint, or the filing of the complaint
precedes the taking. Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011)
If we talk about expropriation by the National Government, it will be If the genuine public necessity of expropriation of private land ceases
governed by the Rules of Court. So if it is the Rules of Court, it would or disappears, then there is no more cogent point for the government’s
appear that the FMV of the property shall be based on the FMV of retention of the expropriated land. The same legal situation should
property at the time of the taking or at the time of the filing of hold if the government devotes the property to another public use very
complaint, whichever came first. (Because the earlier value is much different from the original or deviates from the declared purpose
cheaper.) to benefit another private person.
But, if it is an expropriation by a Local Government Unit, the Code is

specific: it is at the time of the taking. Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011), cont’d
City of Cebu vs. Dedamo (2002) The taking of a private land in expropriation proceedings is
always conditioned on its continued devotion to its public
 While Sec. 4 of Rule 67 of the Rules of Court provides that purpose. As a necessary corollary, once the purpose is
just compensation shall be determined at the time of the terminated or peremptorily abandoned, then the former
filing of the complaint for expropriation (or, time of taking owner, if he so desires, may seek reversion (return), subject of
whichever came first), such rule cannot prevail over RA course to the return, at the very least, of the just compensation
7160, which is a substantive law. received. The notion that the government, via expropriation
proceedings, acquires unrestricted ownership for a fee simple title to
 Sec. 4, Rule 67 (time of filing of complaint or taking, the covered land, is no longer tenable.
whichever came first) vs. LGC: at the time of “taking”.
Of course, the just compensation will be returned. So that was an

What happens if there is no payment of just compensation, if the option in 2011. Earlier in 2010 the SC mentioned of Fery v.
expropriator fails to pay? What is the remedy available to the Municipality of Cabanatuan that there was a need to revisit that Fery
landowner? case. SC said that at that time, two reasons were given:
1. Apparently, the SC justices who resolved it were Americans.

The case was decided under the auspices of American
jurisprudence. 1921
2. Since then, 1935, 1973 and 1987 Constitution were passed
and have been consistent that any taking of private property a) Go back to the elements. Was there a prior valid and definite
must be for public use and there must be just compensation. offer? Was it offered to the registered owner? Was it
rejected? Was the requirement on public purpose complied
So that public purpose requirement is a condition. Unlike in the with?
case of Fery that there used to be a distinction as to what was b) Republic v. Lim, 5 years
the decision of the court in the expropriation proceeding: whether c) Vda. De Anunsacion case or MCIAA v. Lozada.
was it conditioned or not? If conditioned then it was not received
in fee simple but if it was a silent decision on the expropriation
then the property was absolutely acquired by the expropriator,
hence fee simple. 2011 Bar
But now in 2010 and 2011, that idea of acquisition in fee simple won’t When the State requires private cemeteries to reserve 10% of
apply today because any expropriation is always burdened with public their lots for burial of the poor, it exercises its:
purpose requirement and that is the condition.
(A) Eminent domain power.
MCIAA vs. Lozada, Sr. (2010) (B) Zoning power.
(C) Police power.
Reversing “Fery vs. Municipality of Cabanatuan” (1921): (D) Taxing power.
“The expropriator should commit to use the property pursuant

to the purpose stated in the petition for expropriation filed, CORPORATE POWERS
failing which, it should file another petition for the new
purpose. If not, it is then incumbent upon the expropriator to 2009 Bar
return the said property to its private owner, if the latter
desires to reacquire the same.” The Municipality of Pinatukdao is sued for damages arising from
injuries sustained by a pedestrian who was hit by a glass pane that fell
from a dilapidated window frame of the municipal hall. The
In Vda. De Anunsacion case, abandoned. In this one there is a need municipality files a motion to dismiss the complaint, invoking state
for a new petition for the new public purpose, even if it is still public. If immunity from suit. Resolve the motion with reasons. (3%)
not then it is incumbent upon the expropriator to return the said
property to the private owner, if he so desires. So, 2 important cases,
2010 and 2011. Very good subject of bar exam question this year. A: When it comes to immunity from suit principle, one way of granting
or giving consent to be sued is express consent and there are two
Even before the 2010 and 2011 cases, this is the question in 2009 - statutes or laws that expressly grant that consent to be sued. One is
the Local Government Code of 1991 itself, a general law, under section
2009 Bar 21, the right to sue and be sued. It also found in every charter of the
local government units. It is no longer an issue whether a municipality
Filipinas Computer Corporation (FCC), a local manufacturer of can be sued.
computers and computer parts, owns a sprawling part in a 5,000-
square meter lot in Pasig City. To remedy the city’s acute housing This is related to your property law - properties of local government
shortage, compounded by a burgeoning population, the Sangguniang units may be held in governmental or proprietary capacity.
Panglungsod authorized the City Mayor to negotiate for the purchase
of the lot. The Sanggunian intends to subdivide the property into small Corporate Powers, cont’d…
residential lots to be distributed at cost to qualified city residents. But
FCC refused to sell the lot. Hard pressed to find a suitable property to “to acquire and convey real and personal property”
house its homeless residents, the City filed a complaint for eminent
domain against FCC. LGU’s properties may be held in:
(a) If FCC hires you as lawyer, what defense or defenses would (1) Governmental capacity (property for public use), or
you set up in order to resist the expropriation of the (2) Proprietary capacity (patrimonial property)
property? Explain. (5%) [Rabuco vs. Villegas]; Art. 423 of NCC
(b) If the Court grants the City’s prayer for expropriation, but
the City delays payment of the amount determined by the
court as just compensation, can FCC recover the property Q: But how to tell if it is governmental or proprietary.
from Pasig City? Explain. (2%)
(c) Suppose the expropriation succeeds, but the City decides to A: There are two norms which you can actually use, one is through the
abandon its plan to subdivide the property for residential Civil Code and the other is the general norm on the law of municipal
purposes having found a much bigger lot, can FCC legally corporations. It is up to the SC which of the norms to apply but most
demand that it be allowed to repurchase the property from likely it would be the more specific provision under the civil code,
the City of Pasig? Why or why not? (2%) Article 424. Roads, bridges, ports, those are properties declared as
belonging to public dominion.
Answers:
Two (2) norms that may be used: Reclaimed Properties
The capacity in which property is held is, however, dependent  Submerged lands are properties of public dominion,
on the use to which it is intended and devoted. There are two norms absolutely inalienable and outside the commerce of man.
that may be used in classifying properties as public or private: 1)that This is also true with respect to foreshore lands. (Sections 2
of the Civil Code, and 2) that obtaining under the Law of Municipal and 3, Article XII of the 1987 Constitution)
Corporations. (Province of Zamboanga del Norte vs. City of  Hence, it is only when the submerged and foreshore lands
Zamboanga, G.R. No. L-24440, March 28, 1968.) are actually “reclaimed” that they become alienable
lands of public domain which can now be disposed of in
The Civil Code classification is embodied in Arts. 423 and 424. accordance with law. [Chavez vs. Public Estates Authority
Under the norms obtaining in the law on municipal corporations, to be (2003)]
considered public, it is enough that the property be held and devoted  R.A. No. 1899 authorized municipalities and chartered cities
for governmental purposes like public administration, public education, to reclaim foreshore lands. But all reclamation projects are
public health, etc… administered and under the authority of the PRA (formerly,
???) and now subject to the approval of NEDA.
The third test, is just a general norm under the law on Municipal
Corporation, we go by the purpose test. Procedure
LGU’s properties, cont’d… There are 2 options available on the part of the proponent of the
project.
How do you know whether the property is “public” or
“patrimonial”? 1. Pwede niya i.reclaim ang foreshore land at its own expense;
or
Some Tests: A. Art. 424, NCC (road, etc.) 2. He can enter into a joint venture with private person first
B. How acquired? (If private fund was used, like in the case of Filinvest.
patrimonial; if public fund, governmental)
C. Purpose for which the property is acquired or held. Before the physical reclamation, you need to get a permit. In the past,
you secure it from the National Housing Authority. In 2006, it was
Note: “Title” does not matter, because even if in the name of LGU, if in transferred to Philippine Reclamation Authority (PRA). Just last year,
reality it came from the national government for public purpose, then Nov. of 2013 ang final approval, dili na sa PRA, sa NEDA na. NEDA is
it is held “in trust” for the State. composed of the President as the chairman.
Now the process would be, pa approve ang plan first sa PRA and then
Problem the final approval would be NEDA. Pero ang function sa PRA mao ra
gihapon, siya ang mag.administer sa reclamation.
Filinvest, a realty firm, visited the Office of the Mayor of Mandaue City.
After all the requirements are complied with and the fees are paid, we
Filinvest is interested in establishing a commercial and industrial zone
now proceed to the physical reclamation of the foreshore land. The
in Mandaue City where it can build malls, hotels, sports facilities, and
DENR with then issue a special patent to the PRA and then the PRA
other commercial establishments. The site, about 200 hectares,
will then ask for reimbursement kay public land pa man siya, after the
consists, however, of submerged and foreshore lands. The Mayor also
actual reclamation, there will be a title to be issued, an original
thought of establishing in the site a new City Hall and a “One-Stop
certificate of title. And then the PRA has 2 options, i.reimburse ang
Government Center” where all local government offices will be located.
nag.develop. Either bayran niya through a reclaimed land, which is
Aware that submerged and foreshore lands are public lands, the Mayor
always the case. The moment the title is transferred to the LGU it
is now asking you, the City Attorney, on how to assist Filinvest in its
ceases to be a public land and now a private land. Mao nang gitawag
business plan and how to realize the Mayor’s plan of a new City Hall
na patrimonial upo reclamation. And when it becomes a reclaimed
and a one-stop government center. How will you advise the Mayor?
property, then it be disposed of.
A: The law on reclamation mentions that, first you have to distinguish

between submerged and foreshore lands. Why? If we are talking about
reclamation of public lands, the law allows local government units to
reclaim only foreshore lands. The National Government of course is
allowed to reclaim even submerged lands. Unsa may kalahian sa
foreshore ug submerged? Foreshore sa dagat, submerged could be
anywhere else. So pwedeng mg.reclaim ang National government even
inland, even submerged sa water. If Local government, limited only to
foreshore lands. Unya only Municipalities and chartered cities ang
allowed.
Requisites for Validity of Contracts entered into by LGU’s VII. Liability for Damages
A. The local government unit must have the power to enter  Art. 34, NCC: subsidiary liability of LGU for liability of local
into the particular contract; police force in re: refusal or failure to render aid or
protection to any person in case of danger to life or property
B. Pursuant to Section 22(c) of the Local Government Code,
there must be a prior authorization by the Sanggunian  Art. 2189, NCC: liability of LGU’s for defective condition of
concerned, and a legible copy of the contract shall be roads and other public works under LGU’s control and
posted at a conspicuous place in the provincial capitol or supervision which results to (a) death and (b) injuries to
the city, municipal, or barangay hall; persons.
C. In accordance with Secs. 46 and 47, Chapter 8, Subtitle B,  Art. 24, LGC: LGU’s not exempt from liability for death or
Book V, 1987 Admin. Code, if the contract involves the injury to persons or damage to property.
expenditure of public funds, there should be an actual
appropriation and a certificate of availability of funds
by the treasurer of the local government unit (Except in the N. Bacalso is a national road; North reclamation road is also a national
case of a contract for supplies to be carried in stock) road; SRP. Daghan national road. But the moment these national
roads traverse a locality then it is subject to control and supervision in
D.The contract must conform with the formal requisites of regards to the maintenance of the public work. Ang pag improve kay
written contracts prescribed by law; duty sa DPWH but maintenance-repairs for example, if you look at the
What happens if there is non-compliance? LGC, no distinction if municipal or national. Basta lang within territorial
jurisdiction of the LGU, the city or municipal engineer has jurisdiction
As a rule, when the contract is entered into without compliance with A in regard to the maintenance of the public works. Usually sa bar
and C (power, and actual appropriation and a certificate of availability counter argument kay national road. As you know, it is not what is
of funds) the contract is null and void. Therefore not subject to any required in the code. Nigawas nas 2011 bar about damages.
ratification.
But if it is B and D (prior authorization and the formal requisites) it is

ratifiable. This is confirmed in the case of Land Bank vs. Cacayuran, 2011 Bar
a 2013 case.
A collision occurred involving a passenger jeepney driven by
Effects of Non-compliance with Requisites Leonardo, a cargo truck driven by Joseph, and a dump truck driven by
Lauro but owned by the City of Cebu. Lauro was on his way to get a
When a contract is entered into without compliance with (A) load of sand for the repair of road along Fuente Street, Cebu City. As a
and (C) requisites, the same is ultra vires and is null and void. Such result of the collision, 3 passengers of the jeepney died. Their families
contract cannot be ratified or validated. filed a complaint for damages against Joseph who in turn filed a third
party complaint against the City of Cebu and Lauro.
Ratification of defective municipal contracts is possible only Is the City of Cebu liable for the tort committed by its
when there is non-compliance with (B) and (D) requirements. employee?
Ratification may either be express or implied.
San Fernando La Union vs Firme case, distinguish government from

Two (2) Kinds of Ultra Vires Acts: proprietary. Section 24 of the LGC did not provide a distinction. So my
distinction was to give the precepts under the San Fernando La Union
An act which is outside of the municipality’s jurisdiction is Case, governmental siya because it was delivery of and repair of
considered as a void ultra vires act, while an act attended only by roads, so it is governmental therefore, imong argument would be not
an irregularity but remains within the municipality’s power is liable pero Article 24 no distinction. Niingon pa gyud ang Art 24 nga
considered as an ultra vires act subject to ratification and/or ang officers ug LGU kay not exempt from liability arising out of
validation. To the former belongs municipal contracts which (a) are negligence of employees. This is to assume that Lauro is a regular
entered into beyond the express, implied or inherent powers of the employee kay kung special agent sad siya, as elucidated in Meritt v
LGU; and (b) do not comply with the substantive requirements of law Government of the Philippine Islands. The government already
e.g., when expenditure of public funds is to be made, there must be consents to be held liable if the damage is caused by a special agent.
an actual appropriation and certificate of availability of funds; while to And a special agent is one who performs a function not pertaining to
the latter belongs those which (a) are entered into by the improper his office. We are assuming here that Lauro is a regular employee.
department, board, officer of agent; and (b) do not comply with the
formal requirements of a written contract e.g. Statute of Frauds. (Land Problem
Bank vs. Cacayuran, G.R. No. 191667, April 17, 2013)
The Sangguniang Panlungsod (SP) of Carcar City ordered the
construction of a wooden stage for a play during its fiesta celebration.
LIABILITY FOR DAMAGES The stage, however, collapsed causing serious physical injuries to the
participants of the play. The participants sued Carcar City and all its SP
members for Damages. May the suit prosper? If yes, who should be
held liable?
In the past, good examples of offenses involving moral turpitude
include violation of BP 22 even if it is malum prohibitum. The manner
Fiesta celebration is proprietary is you apply San Fernando La Union. by which BP 22 is violated, naa na siya’y element of KNOWLEDGE of
The question is who shall be held liable, the City or the members of the INSUFFICIENCY OF FUNDS. This element, which is by the way
the Sanggunian who ordered the construction of the wooden stage. presumed, according to the Supreme Court, when the check is
Separate and Distinct personality rule—since the LGU has a separate deposited within a period of 90 days, there is a presumption of
personality, then the precept of separate and distinct personality of the knowledge of the insufficiency of funds makes the offense one of
corporation from the officials shall also be applied. So the members of moral turpitude even if malum prohibitum.
the SP may not be held liable because the LG of Carcar possesses a
distinct and separate personality. Then, the phrase within 2 years after service of sentence is applicable
to BOTH disqualifications, in other words, whether moral turpitude or
LOCAL ELECTIVE OFFICIALS for a penalty of one year or more imprisonment. Meaning, this is NOT
a perpetual disqualification.
You know the ruling of the SC in Frivaldo already. Then the matter of
residence, you already know that domicile is synonymous with “Within 2 years from service”
residence. The animus animus also you know already. Animus
manendi, revertendi, non revertendi. The phrase “within two (2) years after serving sentence” should
have been interpreted and understood to apply both to those who
In 2012, X was convicted of violation of B.P. Blg. 22 (Bouncing have been sentenced by final judgment for an offense
Checks Law) and was sentenced to serve a maximum of six (6) involving moral turpitude and to those who have been
months of imprisonment. X wants to run for Governor of the Province sentenced by final judgment for an offense punishable by one
of Cebu in the 2016 elections. (1) year or more of imprisonment. The placing of comma (,) in the
provision means that the phrase modifies both parts of Sec. 40(a) of
A. Is X disqualified to run for local position by reason of his the Local Government Code.
conviction?
B. Will your answer be the same if X had instead applied for [MORENO vs. COMELEC (2006, En Banc)]
and was granted probation?
SO you need to know when he served and finished serving his

1st Question: Is X disqualified to run for local position by reason of his sentence because you count 2 years from the service of the sentence.
conviction? Mao nang layo kayo ang gap sa problem (2012 and 2016) because
you still have to qualify pa man:
A: The relevant section is Section 14 on Disqualification. It is important
to talk about this because there is an update. But first, the basics. 1. Whether the conviction is already final or not
2. Whether the sentence has already been served or not.
Let’s take a look at the relevant provision.
So you count two years after service of sentence because after that,
Disqualifications (Sec. 40, LGC) he reacquires the right to hold public office and therefore be qualified
again.
1. Sentenced by final judgment for (1) offense involving
moral turpitude or (2) offense punishable by one (1) 2nd Question: Will your answer be the same if X had instead applied for
year or more of imprisonment, within two years after and was granted probation?
service of sentence.
A: Diba, kung mu-apply ka for probation, there is already conviction?
Within the period to appeal, you file for probation instead of appealing.
The first disqualification of a local elective official is when he is If mu-appeal ka, you can’t avail of probation. So if your probation is
SENTENCED BY FINAL JUDGMENT. In the problem, that is tricky granted by the court? Are you still disqualified even if you availed of
because he was only SENTENCED to serve a maximum of 6 months of probation?
imprisonment. It is not definite that the decision is already final.
The court said that disqualification disappears AFTER two years from
What is the implication here? service of sentence. According to the court in the Moreno case, this
therefore required that there is a service of sentence which means that
This is important to highlight important qualifications. Sentenced by if there is no service of sentence, the two years does not begin to run
final judgment. That is important. For what? Conjunctive word “or”. and Section 40 does not apply because if you are granted probation,
you are exempt from serving the sentence. That is the effect. This is
So in an OFFENSE INVOLVING MORAL TURPITUDE, do not include the already qualified under Moreno vs COMELEC.
one year because it is “or”. So it’s either:
1. The offense involves moral turpitude only, regardless of

how long the penalty is (here, the nature of the offense is
important), or
2. The offense is punishable by one year or more than one
year of imprisonment. (this time around, disregard the
nature of the offense)
Effect of Probation: Dual citizenship should be interpreted as dual allegiance.
This is as good a time as any to clarify that those who have not Problem
served their sentence by reason of the grant of probation which, we
reiterate, should not be equated with service of sentence, should not A is a former natural-born Filipino who became an American by
likewise be disqualified from running for a local elective office because naturalization. A, who wanted to run for Mayor in X Municipality, then
of the two-year period of ineligibility under Sec. 40(a) of the Local availed of RA 9225, took his oath of allegiance and renounced his
Government Code does not even begin to run. (Moreno vs. COMELEC, foreign citizenship. However, A retained his American passport for his
2006) three trips to the Philippines before the elections. A filed his certificate
of candidacy for Mayor. M, his opponent, questioned his candidacy
because he was still using his American passport. A argued that his
Under the code 2 years after the service of sentence, qualified again filing of certificate of candidacy effectively renounced his foreign
after 2 years of service of sentence. The new issue now is what if the citizenship pursuant to the Mercado vs. Manzano ruling. Is A correct?
kind of crime committed carries with it the accessory penalty of
perpetual disqualification. Does section 40 (a) still apply? That from 2
years of service of sentence of service, qualified again? Or should the In the above problem, A is a former natural born Filipino who became
Local government code yield to the revised penal code of perpetual an American by naturalization. He availed of RA 9225, the reacquisition
disqualification to hold public office. and retention act of 2003 which is only applicable for natural born
Filipinos.
To answer this, we have the case of Jalosjos VS Comelec June 18,
2013. So if you are a natural born Filipino who were naturalized and therefor
lost Filipino citizenship by naturalization shall not be deemed to have
Art. 40 of the LGC and Perpetual Disqualification to Hold lost their Philippine citizenship because under common wealth act no.
Public Office in RPC 63 naturalization in a foreign country results in loss of Philippine
citizenship. But when RA 9225 was enacted it declared that this will
While Section 40(a) of the LGC allows a prior convict to run for not be the case provided the person will comply with the requirement
local elective office after the lapse of two (2) years from the time he of taking the oath under RA 9225. After 2003 and you are a natural
serves his sentence, the said provision should not be deemed to born Filipino who will have yourself naturalized to another country, you
cover cases wherein the law imposes a penalty, either as will not be losing your Philippine citizenship but you will retain your
principal or accessory, which has the effect of disqualifying Philippine citizenship that is why it is reacquisition and retention.
the convict to run for elective office. (Jalosjos vs. COMELEC, GR Reacquisition for those who got naturalized before the effectivity of RA
No. 205033, June 18, 2013) 9225 and retention for those who will be naturalized after RA 9225
provided you will take that oath under the law.
The other disqualifications: What happened in this question is that A availed of RA 9225 then he
took the oath of allegiance and renounced his American citizenship but
Disqualification, cont’d… still he was using his American passport. After availing of RA 9225, he
filed his certificate of candidacy. And you remember your Mercado VS
2. Removed from office as a result of administrative Manzano… Si Manzano, declared by the SC that his filing of COC
case (prospective application only; any “office” [see effectively renounced his American Citizenship, showing that he had
Osorio case 2004]); only one allegiance to the Republic of the Philippines. So A invoked
Manzano case.
3. Convicted by final judgment for violating the oath of
allegiance to the Republic; But the SC ruled in Maquiling vs. COMELEC, July 2, 2013 -
4. Those with dual citizenship. (Manzano vs. Mercado: Maquiling vs. COMELEC (April 16, 2013; July 2, 2013)
should be interpreted as “dual allegiance”). See also
Cordora (2009) Arnado, by using his US passport after renouncing his American
citizenship, has recanted the same Oath of Renunciation he took.
Section 40(d) of the Local Government Code applies to his situation.
The other disqualifications are the removal office as result of an He is disqualified not only from holding the public office but even from
administrative case. Any case basta you are removed from office, you becoming a candidate.
will be disqualified provided that the removal from office whether
elective or appointive office as a result of an administrative case The use of foreign passport after renouncing one’s foreign
happened after the effectivity of the local government code of 1991. citizenship is a positive and voluntary act of representation as
Because if you are removed from office as a result of an administrative to one’s nationality and citizenship; it does not divest Filipino
case in 1990 or even 1991 kai ang code ni take effect Jan. 1, 1992. It citizenship regained by repatriation but it recants the Oath of
should not be considered as a disqualification on the fact of removal Renunciation required to qualify one to run for an elective
because the old code did not have this provision. It is a new provision position.
in the Code of 1991. So only those who were removed from office
administratively during the effectivity of the Local Government Code
shall be disqualified by reason of that removal. So dual allegiance siya.
As to the question, ngano wla gi-apply ang Mercado vs. Manzano? Dili
diay to effective renunciation of citizenship? G- abandon na ba? SC example, it would be considered considered as voluntary resignation
Clarified. Arnado's category of dual citizenship is that by which foreign and will not interrupt the consecutiveness of the service of the term.
citizenship is acquired by applying for naturalization. Unlike in
Manzano, he acquired dual citizenship by BIRTH. So involuntary to sya. Another important rule is the effect of SUSPENSION. This is an on-
So dili stricto an rule. Because they are not required to take the oath going question even amongst those who are already practicing law.
of renunciation. The mere fact of filing of COC carries with it the The case of Aldovino involved PREVENTIVE SUSPENSION. Preventive
implied renunciation of foreign citizenship. But kung dual citizen ka by Suspension does not interrupt the consecutiveness, it does not
naturalization, there is a requirement to take an oath of allegiance to interrupt the term. If one is preventively suspended, he is merely
the Republic of the Philippines and you are required to personally prevented from exercising the functions, but the officer still holds the
renounce foreign citizenship. And in Mercado, the SC warned that the office. There is no interruption of the term.
moment you renounce your foreign citizenship, it must be coupled with
overt acts compatible with renunciation. In Arnado, it is not therefore a What if suspension was imposed as a PENALTY? This happened to
sincere renunciation of American Citizenship. Gov. Gwen (Garcia) who was penalized with suspension months before
the expiration of her third term. Will she be allowed to run for a 4 th
So you distinguish how he acquired dual citizenship, by birth or by term? Is there an interruption to the consecutiveness if suspension
naturalization. was imposed as a penalty?
Arnado’s category of dual citizenship is that by which foreign My (Atty. Daryl Bretch Largo’s) humble opinion is this—under the
citizenship is acquired through a positive act of applying for Code, when one is suspended, the suspension being a penalty, a
naturalization. This is distinct from those considered dual citizens by temporary vacancy is created. The one who occupies the position of
virtue of birth, who are not required by law to take the oath of the suspended official will merely be Acting (in an acting capacity).
renunciation as the mere filing of the certificate of candidacy already
carries with it an implied renunciation of foreign citizenship. Dual For me, there is no distinction between mere preventive suspension,
citizens by naturalization, on the other hand, are required to take not and suspension as a penalty. The reasoning of the Supreme Court in
only the Oath of Allegiance to the Republic of the Philippines but also Aldovino was that preventive suspension merely barred the official
to personally renounce foreign citizenship in order to xxxxxx candidate from discharging his functions. Is this not the same idea when one is
for public office. suspended? I don’t think there is removal from office, otherwise, if the
penalty of suspension really causes removal, meaning you are taken
out of your post, it should create a permanent vacancy.
FUGITIVE FROM JUSTICE
You can also argue otherwise, that it would no longer constitute a
Rodriguez vs. COMELEC (1996) penalty if the official is not removed, that is possible. When you step
down as a result of an order of the penalty of suspension, you can
“Fugitive from justice” includes not only those who flee after conviction argue that you are removed from your office within the period of
to avoid punishment but likewise who, after being charged, flee to suspension therefore effectively interrupting the term. I have yet to
avoid prosecution. The definition thus indicates that the intent to see a definitive ruling of the Court in that regard. This is a “wait and
evade is the compelling factor that animates one’s flight from see” situation. But going back, insofar as preventive suspension is
a particular jurisdiction. And obviously, there can only be an concerned it does not interrupt the term.
intent to evade prosecution or punishment when there is
knowledge by the fleeing subject of already instituted The following are the bar questions relating to this that came out:
indictment, or of a promulgated judgment of conviction.
2008 Bar
Not only fleeing after conviction to avoid punishment but also fleeing
after being charged to avoid prosecution. But it’s a question of intent
Abdul ran and won in the May 2001, 2004, and 2007 elections
at the end of the day.
for Vice-Governor of Tawi-Tawi. After being proclaimed Vice-Governor
3-TERM LIMIT RULE in 2004 elections, his opponent, Khalil, filed an election protest before
the Commission on Elections. Ruling with finality on the protest, the
The “Three Term Limit Rule” COMELEC declared Khalil as duly elected Vice-Governor though the
decision was promulgated only in 2007, when Abdul had wholly served
Elements: 2004-2007 term and was in fact already on his 2007-2010 term as
Vice-Governor.
1) That the official concerned has been elected for three
consecutive terms in the same local government post
and a) Abdul now consults you if he can still run for Vice-Governor
of Tawi-Tawi in the forthcoming May 2010 elections on the
2) That he has fully served three consecutive terms. premise that he could not be considered as having served a
Vice-Governor from 2004-2007 because he was not duly
elected to the post, as he assumed office merely as a
The problems revolve around whether there was interruption. It can presumptive winner and that presumption was later
be either voluntary or involuntary. If ordered for example by COMELEC overturned when the COMELEC decided with finality that he
or any other governmental entity, then such interruption is considered had lost in the May 2004 elections. What will be your
INVOLUNTARY. This interrupts the running of the “consecutiveness”. advice?
Otherwise, if the interruption was voluntary, either through resignation
or abandonment, through the transfer to a different position for
2011 Bar speak of. He is not a candidate. So who is now entitled to this? The
“second” placer. You do not reject him. Therefore, the VM cannot
Adela served as mayor of Kasim for 2 consecutive terms. On her insist to be installed as the Mayor. This is in Election Law.
third term, COMELEC ousted her in an election protest that Gudi, her
opponent, filed against her. Two years later, Gudi faced recall
proceedings and Adela ran in the recall election against him. Adela In Local Government Law, you can offer this explanation. Jalosjos v.
won and served as Mayor for Gudi’s remaining term. Can Adela run COMELEC.
again for Mayor in the next succeeding election without violating the 3
term limit?
Svetlana Jalosjos vs. COMELEC (June 25, 2013)
Let me go straight to another update—take note of Ong vs. Alegre. The rule on succession in Section 44 of the Local Government
One person. Three terms. The middle term was disputed. The final Code cannot apply in instances when a de facto officer is ousted from
resolution of the COMELEC was that the person elected during the office and the de jure officer takes over. The ouster of a de facto
middle term was not the winner but such decision was released only officer cannot create a permanent vacancy as contemplated in the
after the third term. Was there an interruption? According to the Local Government Code. There is no vacancy to speak of as the de
Court, there was no interruption. The term was fully served but it was jure officer, the rightful winner in the elections, has the legal right to
served in a de facto capacity. Thus, whether the official was de facto assume the position.
or de jure, for as long as the term was fully served, the full service of
the term is counted.
If election contest lang and not based on eligibility, so like fraud etc.,
there is no de jure or de facto. In this case, there is de jure and de
facto so cannot apply to instances when a de facto officer is ousted
2011 Bar from office and the de jure officer takes over. The disqualified
candidate from the very beginning (his COC is void ab initio; he not a
Alfredo was elected municipal mayor for 3 consecutive terms. candidate) cannot create a permanent vacancy to trigger succession.
During his third term, the municipality became a city. Alfredo ran for Since there is no permanent vacancy, it cannot trigger succession. The
city mayor during the next immediately succeeding election. Voltaire Vice Mayor cannot insist. The rightful winner in the election (“second”
sought his disqualification citing the 3 term limit for elective officials. placer) will get the position.
Will Voltaire’s action prosper?
Concurrent Jurisdiction with Ombudsman

ANSWER: Lataza vs. COMELEC (asked in the 2005 Bar)—Alfredo is
DISQUALIFIED. An interpretation allowing a fourth term in the new In administrative cases involving the concurrent jurisdiction of two or
city would effectively allow him to serve for 18 years. The reasoning of more disciplining authorities, the body where the complaint is filed
the Supreme Court was that even if it was a new city, the mayor would first, and which opts to take cognizance of the case, acquires
still be serving the same territory (same territorial jurisdiction) and the jurisdiction to the exclusion of other tribunals exercising concurrent
same inhabitants. The spirit behind the three-consecutive-limit rule is jurisdiction.
really to prevent service of more than 9 consecutive years. A contrary
ruling would be a circumvention allowing the service of 18 years. Under RA 7160, the Sangguniang Panlungsod or Sangguniang Bayan
has disciplinary authority over any elective barangay official. Since the
Disqualified even if it’s a new city because the official will be serving complaint against petitioner was initially filed with the Office of the
the same territorial jurisdiction and same inhabitants and besides it will Omdusman, the Ombudsman’s exercise of jurisdiction is to the
circumvent the spirit of the 3 term limit rule. exclusion of the Sangguniang Bayan whose exercise of jurisdiction is
concurrent. (Alejandro vs. Office of the Ombudsman, GR No. 173121,
April 3, 2013)
Problem
Disciplinary proceeding. Option on the part of the private complainant.
X, Y, and Z were the candidates for Mayor in Municipality of If you want to sue a local government official under the Ombudsman,
ABC. Y had earlier filed a petition for the cancellation of X’s certificate apply the Ombudsman Law; otherwise, apply the Local Government
of candidacy on the ground that X failed to comply with the 6-month Code. Look at Sec. 60 for the grounds of disciplinary action (grave
residency requirement. During the election, and while the abuse of authority etc.) then file it before the appropriate office. In the
disqualification case was still pending, X received the highest number case of cities and provinces, file it with the Office of the President. All
of votes followed by Y. Thereafter, the COMELEC disqualified X. W, the others, go to the Provincial Board. Go to Sec. 60 and 61. It’s very
elected Vice-Mayor insisted that he should become the Mayor. Should important.
W be allowed to assume the office of the Mayor?
Aguinaldo Doctrine
Solbad na ni sa Election Law. Note that the ground for disqualification -mere fact that misconduct is committed in the prior term regardless if
affects eligibility. Therefore, any decision that will affect the eligibility it was known to the voters or not, upon re-election, it will operate as a
of the candidate would have the effect rendering the Certificate of condonation of the misconduct. Principle of Condonation.
Candidacy is null and void ab initio. Therefore, the supposed candidate
will be considered as no candidate at all. You do not apply the
rejection of the second placer rule because there is no first placer to
Practice of Profession elected for mayor. So when he ran in the 2001 elections, his candidacy
was questioned on the ground that such was already his 4th
 All LCE’s cannot practice profession nor engage in any consecutive term.
occupation other than the exercise of their functions as
LCE’s. Borja, Jr. v. COMELEC (1998)
 SP Member can practice profession or engage in any
occupation except during session hours, with certain Private respondent was first elected as vice- mayor, but upon the
limitations to lawyers on grounds of conflict of interests. death of the incumbent mayor, he occupied the latter’s post for the
 MDs may practice profession even during officer hours in unexpired term. He was, thereafter, elected for two more terms. The
case of emergency w/o comp. Court held that when private respondent occupied the post of the
mayor upon the incumbent’s death and served for the remainder of
the term, he cannot be construed as having served a full term as
May a Mayor practice a profession? contemplated under the subject constitutional provision. The term
General Rule: No. served must be one “for which [the official concerned] was
Unless: Mayor is a doctor of medicine even during office hours elected.”
provided he receives no compensation.
Answer:
SP members including the Vice Mayor can practice profession with

First, X was not elected when he became mayor in 1993. Second, he
limitations involving usually conflict of interest cases.
was elected, but for the position of vice-mayor. So when he assumed
Example: They cannot defend accused in a criminal case where the
the position of vice-mayor, he was not elected as mayor. So there was
private complainant is the LGU in which he is a Sanggunian member.
no consecutiveness in this case. The term served must be one for
which the official concerned was elected.
The Sanggunian has no subpoena and contempt power. Negros
Oriental Case. Remember that also. It has been asked in the bar many
times.
Problem No. 2
{September 5, 2014}
1988-1995: X was elected and served as Mayor for 2 consecutive
When you were under me in Local Government Law, there were terms
several cases that illustrate the application of the 3 term limit rule as
1995: X was re-elected and started serving as Mayor
applied to different scenarios. In 2013, the case of ABUNDO VS.
COMELEC summarizes the basic scenarios on the rules on three term 1997: COMELEC ruled that X was not validly proclaimed and X stepped
limit rule. down as ordered by the Comelec.
1998 elections: Was X barred to run as Mayor?

If you look at the elements of the three term limit rule, there is this
element that the official must be elected, had been elected for three
consecutive term and in the same position, second, there is full service
for three consecutive terms. Answer:
The “Three Term Limit Rule” This is with the element of consecutiveness. So there was interruption.
The idea of interruption connotes involuntariness on the part of the
Elements: official. It was involuntary when X step down because he was ordered
to step down. An example of voluntary renunciation of office is
1) That the official concerned has been elected for three resignation or abandonment. Here there is involuntary relinquishment
consecutive terms in the same local government post of office. This is the case of LONZANIDA VS. COMELEC. Petitioner
and did not fully serve 1995 – 1998 because when he step down in 1997, it
was involuntary relinquishment of office.
2) That he has fully served three consecutive terms.
Problem No. 1
1993: X, the Vice Mayor succeeded Y, the Mayor who died. X served as
Mayor until 1995.
1995-1998: X was elected and served as Mayor
1998-2001: X was re-elected and again served as Mayor
2001 Elections: Was X barred to run as Mayor?
This is based on the case of BORJA, JR. VS. COMELEC, the vice-
mayor succeeded Y who died, and the vice-mayor served as mayor
until 1995. That happened in 1993 and he served until 1995. For two
consecutive terms, X, then the vice-mayor and became the mayor got
Lonzanida vs. COMELEC (1999) Problem No. 4
Petitioner was elected and served two consecutive terms as mayor 1992-2001: X was elected and served as Mayor for 3 consecutive
from 1988 to 1995. He then ran again for the same position in the May terms
1995 elections, won and discharged his duties as mayor. However, his
2001 elections: X did not run; Y was elected Mayor
opponent contested his proclamation before the RTC, which ruled that
there was a failure of elections and declared the position of mayor 2002: Y faced recall election and X filed certificate of candidacy for the
vacant. The COMELEC affirmed this ruling and petitioner acceded to recall elections
the order to vacate the post. During the May 1998 elections, petitioner
Can X participate in the recall elections?
therein again filed his certificate of candidacy for mayor. A petition to
disqualify him was filed on the ground that he had already served
three consecutive terms. The Court ruled, however, that petitioner
cannot be considered as having been duly elected to the post in the Answer:
May 1995 elections, and that petitioner did not fully serve the
1995- 1998 mayoralty term by reason of involuntary The same rule in the earlier case, there was an interruption. Even for
relinquishment of office. one day, although it was legally impossible to be a private citizen in
just 1 day. But assuming that such happens, then apply the thinking of
the court, that such should serve as an interruption of the continuity of
service.
Problem No. 3
Socrates vs. COMELEC
1992-1998: X was elected and served as Mayor for 2 consecutive
terms
The principal issue was whether or not private respondent Hagedorn
1998: X ran as Mayor but lost to Y was qualified to run during the recall elections. Hagedorn had already
served for three consecutive terms as mayor from 1992 until 2001 and
2000: Y faced a recall election and X was elected in the recall election did not run in the immediately following regular elections. On July 2,
and served as Mayor 2002, the barangay officials of Puerto Princesa convened themselves
2001: Was X barred to run as Mayor? into a Preparatory Recall Assembly to initiate the recall of the
incumbent mayor, Socrates. On August 23, 2002, Hagedorn filed his
certificate of candidacy for mayor in the recall election. A petition for
his disqualification was filed on the ground that he cannot run for the
Answer: said post during the recall elections for he was disqualified from
running for a fourth consecutive term. The Court ruled in favor of
According to the court there was interruption in the continuity of his
Hagedorn, holding that the principle behind the three-term limit
service. The reason for the rule on interruption is that when he lost in
rule is to prevent consecutiveness of the service of terms, and
1998 and until he got elected in 2000 in the recall election, X was a
that there was in his case a break in such consecutiveness
private citizen.
after the end of his third term and before the recall election.
Adormeo vs. COMELEC (2002)
The issue was whether or not an assumption to office through Problem No. 5 (2005 Bar)
a recall election should be considered as one term in applying
the three-term limit rule. Private respondent was elected and 1992-2001: X was Mayor of a municipality for 3 consecutive terms
served for two consecutive terms as mayor. He then ran for his third
Before May 2001 elections: The municipality became a new city
term in the May 1998 elections, but lost to his opponent. In June
1998, his opponent faced recall proceedings and in the recall elections 2001 elections: X filed COC for mayor of the new city
of May 2000, private respondent won and served for the unexpired
Was X qualified to run for Mayor of the new city?
term. For the May 2001 elections, private respondent filed his
certificate of candidacy for the office of mayor. This was questioned.
The Court held that private respondent cannot be construed as having
been elected and served for three consecutive terms. His loss in the Answer:
May 1998 elections was considered by the Court as an
interruption in the continuity of his service as mayor. For The SC said NO. Number one, the argument that it was a new local
nearly two years, private respondent therein lived as a private government having a new personality would be a circumvention of the
citizen. mandate and spirit of the three-term limit rule as this rule is not only
mandated by the Code but also the Constitution. Otherwise, an
interpretation in favor of X would allow X to serve the same territory,
constituents and jurisdiction for 18 years. This was the ruling in
the case of Latasa vs Comelec.
Latasa vs. COMELEC (2003) Francis Ong case, cont’d …
 It can be seen from Lonzanida and Adormeo that the law The Supreme Court held that such assumption of office
contemplates a rest period during which the local elective constitutes, for Francis, “service for the full term”, and should
official steps down from office and ceases to exercise be counted as a full term served in contemplation of the
power or authority over the inhabitants of the territorial three-term limit prescribed by the constitutional and statutory
jurisdiction of a particular local government unit. provisions, supra, barring local elective officials from being elected and
serving for more than three consecutive term for the same position.
 Should petitioner be allowed another three consecutive
terms as mayor of the City of Digos, petitioner would then His proclamation by the Municipal Board of Canvassers of San
be possibly holding office as chief executive over the Vicente as the duly elected mayor in the 1998 mayoralty
same territorial jurisdiction and inhabitants for a total of election coupled by his assumption of office and his
eighteen consecutive years. This is the very scenario sought continuous exercise of the functions thereof from start to
to be avoided by the Constitution, if not abhorred by it. finish of the term, should legally be taken as service for a full
term in contemplation of the three-term rule (even if he was later on,
after the full term, declared that he was not the winner in the
election).
Problem No. 6

Problem No. 7
1998-2001: X was re-elected and served as mayor, but an election
protest was filed against X in 1998
2001-2004: X was re-elected and served as mayor, and the 1998
1998-2001: X was re-elected and served again as Mayor, but a protest
election protest was decided against X
was filed in 1998
2004 elections: Was X qualified to run as mayor?
2001-2004: X was re-elected and served again as Mayor, but in July of
2001, the 1998 protest was decided against X.
2004 elections: X filed COC for mayor but it was cancelled, although
First term: X was elected and served as mayor.
he won and was proclaimed Mayor
Second term: elected and served but a protest was filed but not yet May 17, 2007: X stepped down as mayor as ordered
decided.
2007: X was elected again as mayor
Third term: the COMELEC ruled with finality that he was not the Was X qualified to run as mayor for 2007?
winner in the second term.
So X contended that his disqualification in the second term should be

considered as an interruption. The SC said that even if you serve as a Dizon vs. COMELEC
de facto officer the term shall be counted against him. The case of
Franis Ong vs. Alegre. We concede that Morales occupied the position of mayor of Mabalacat
for the following periods: 1 July 1995 to 30 June 1998, 1 July 1998 to
Francis Ong vs. Joseph Alegre (2006) 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16
May 2007. However, because of his disqualification,
Petitioner Ong was duly elected mayor (San Vicente) in the May 1995 Morales was not the duly elected mayor for the 2004-2007
elections and again in the May 2001 elections and serving the July 1, term. Neither did Morales hold the position of mayor of Mabalacat for
1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. the full term.
The controversy revolved around the 1998-2001 term. Ong ran for
Morales cannot be deemed to have served the full term of
mayor of the same municipality in the May 1998 elections and actually
2004-2007 because he was ordered to vacate his post before
served the 1998- 2001 term by virtue of a proclamation initially
the expiration of the term. Morales’ occupancy of the position of
declaring him mayor-elect of San Vicente. But after the term 1998-
mayor from 1 July 2004 to 16 May 2007 cannot be counted as a term
2001, it was declared that Ong was not the real winner in the
for purposes of computing the three-term limit. Indeed, the period
elections. The question was whether or not Ong’s assumption of office
from 17 May 2007 to 30 June 2007 served as a gap for purposes of
as Mayor of San Vicente from July 1, 1998 to June 30, 2001, may be
the three-term limit rule. Thus, the present 1 July 2007 to 30 June
considered as one full term service.
2010 term is effectively Morales’ first term for purposes of the three-
term limit rule.
Problem No. 8 Aldovino vs. COMELEC (2009)
In 1994, 1997 and 2002: X was elected Punong Barangay Problem 10: Is the preventive suspension of an elected public official
an interruption of his term of office for purposes of the three-term limit
2004: X ran and won as municipal councilor, leaving his post as
rule?
punong barangay
A: “Interruption” of a term exempting an elective official from the
2007: X filed COC for the position of punong barangay (the same
three-term limit rule is one that involves no less than the involuntary
barangay)
loss of title to office. An officer who is preventively suspended
Is he qualified? is simply barred from exercising the functions of his office but
title to office is not lost.
Bolos vs. COMELEC. This case was about abandonment. That
abandonment is considered as voluntary renunciation
He said the 2002-2007 should not be counted because he was serving Problem 11
as a municipal councilor, so there was an interruption. The SC said
that there was in interruption but it was voluntary. Therefore, it should For four (4) successive regular elections, namely, the 2001, 2004,
not be considered an interruption in the continuity of his service. 2007 and 2010 national and local elections, A vied for the position of
municipal mayor. In both the 2001 and 2007 runs, he emerged and
Bolos, Jr. vs. COMELEC was proclaimed as the winning mayoralty candidate and accordingly
served the corresponding terms as mayor. In the 2004 electoral derby,
The Court agrees with the COMELEC that there was voluntary however the municipal BOC initially proclaimed as winner B, who, in
renunciation as Punong Barangay. The COMELEC correctly held: It due time, performed the functions of the office of mayor. A protested
is our finding that Nicasio Bolos, Jr.’s relinquishment of the B’s election and proclamation. A was eventually declared the winner of
office of Punong Barangay of Biking, Dauis, Bohol, as a the 2004 mayoralty electoral contest, paving the way for his
consequence of his assumption to office as Sangguniang Bayan assumption of office starting May 9, 2006 until the end of the 2004-
member of Dauis, Bohol, on July 1, 2004, is a voluntary 2007 term on June 30, 2007, or for a period of a little over one year
renunciation. and xxxx month. Was A qualified to run for the 2010 elections?
All the acts attending his pursuit of his election as municipal councilor
point out to an intent and readiness to give up his post as Punong
Abundo vs. COMELEC. Unlike in the case of Ong vs Alegre, he was
Barangay once elected to the higher elective office. He knew that his
able to serve a portion of the term of 2007 for a couple of months.
election as municipal councilor would entail abandonment of the
Was A qualified to run for the 2010 elections? Diba pag 2004 wa man
position he held, and he intended to forego of it. Abandonment, like
siya ni daog. Ni assume lang siya ug office pag hapit na mu end ang
resignation, is voluntary.
term. Should it be counted against him? If we say that B was a de
facto officer beginning 2004 until May 9 2006 and the capacity of a de
facto officer serving an office is to be counted against him. Then,
Problem No. 9 conversely, it should not be counted against the de jure officer
because he did not in fact serve the term. So it was in this case that
X was elected mayor 3 times during the terms: 1998-2001, 2001-2004 the SC narrated all possible scenarios involving the three term limit
and 2004-2007 rule. The 2-year period during B was serving as mayor is considered as
an interruption which effectively removed A from the ambit of the
In September 2005, X was ordered “preventively suspended” by the three-term limit rule. This is a new case.
Sandiganbayan
In 2007, X filed a COC and ran for mayor. Abundo, Sr. vs. COMELEC (2013)
Was X qualified to run for the 2007 elections? The consecutiveness of what otherwise would have been
Abundo’s three successive, continuous mayorship was effectively
broken during the 2004-2007 term when he was initially deprived of
This is the case of Aldovino vs COMELEC. Preventive suspension title to, and was veritably disallowed to serve and occupy, an office to
was not considered as an interruption because when we speak of an which he, after due proceedings, was eventually declared to have been
event that should cause an interruption it should refer to an the rightful choice of the electorate. The two-year period during
involuntary loss of title. When one is preventively suspended you which his opponent, Torres, was serving as mayor should be
are simply barred from discharging functions. There is no considered as an interruption, which effectively removed
corresponding loss of title so it should not be considered as loss of Abundo’s case from the ambit of the three-term limit rule.
title.
The 2013 case of Abundo, Sr. vs. COMELEC summarized the

prevailing jurisprudence on issues affecting consecutiveness of terms
and/or involuntary interruption.
So if you have not read the other cases, you just read Abundo vs.
COMELEC.
[UPDATE ON ELECTION LAW: Another update in Election law by Local Autonomy
the way was in the news 3 or 4 days ago, the SC nullified the rule on
computation or limitation/restriction on the airtime campaign. So, Limbona vs. Mangelin Now, autonomy is either decentralization of
instead of the more stringent totality rule, meaning aggregate bah, administration or decentralization of power.
gibalik to per station. Murag overbreadth to. I have not read the case
yet but I can only surmise it’s more of unreasonable restriction to the There is decentralization of administration when the
freedom of expression. Overbreadth because if the concern of the central government delegates administrative powers to political
COMELEC is to prevent rich candidates from abusing or taking subdivisions in order to broaden the base of government power and in
advantage of airtime during their campaign, there is still a limitation to the process to make local governments “more responsive and
that noh. So dili diay necessary nga i-aggregate, pwede ran a per accountable,” and “ensure their fullest development as self-reliant
station. Anyway, your fear is addressed by a different provision which communities and make them more effective partners in the pursuit of
is limitation on election expenditure. (See GMA Network, Inc. Vs. national development and social progress.”
Commission on Elections/ABC Devt. Corp. Vs.
COMELEC/Manila Broadcasting Co., Inc., et al. Vs.
COMELEC/Kapisanan ng mga Brodkaster ng Pilipinas, et al. Vs. It was in here that the SC explained two concepts of autonomy. One is
COMELEC/Radio Mindanao Network, Inc. Vs. COMELEC G.R. the decentralization of administration and the other is the
No. 205357/G.R. No. 205374/G.R. No. 205592/G.R. No. 205852/G.R. decentralization of powers. Decentralization of power is not being
No. 206360. September 2, 2014 )] applied or implemented in our jurisdiction. The SC mentioned or makes
this comment, now the autonomy is either decentralization of
administration or decentralization of power. The SC was simply
referring to the general idea of autonomy meaning autonomy in any
{POST-MOCK BAR, September 26, 2014} particular jurisdiction.
LOCAL GOVERNMENT LAW Limbona case, cont’d …

(Municipal Corporation Law)
Decentralization of power, on the other hand, involves an
Questions: abdication of political power in favor of local government units
declared to be autonomous . In that case, the autonomous
What is “local autonomy”? government is free to chart its own destiny and shape its
future with minimum intervention from central authorities.
True or False: According to a constitutional author, decentralization of power
1. The National Government exercises general supervision over amounts to “self-immolation,” since in that event, the autonomous
a Province. government becomes accountable not to the central authorities
2. The National Government exercises general supervision over but to its constituency.
the ARMM.
But it was clarified later on in the case of Pimentel that in the

1. False. why? Philippines the kind of decentralization that is being applied or
implemented is decentralization of administrative powers. There is no
Student: it is the president that exercises general supervision. total abdication of political powers on the issue.
Atty: Ah, it wrong to say national gov’t? So, we have to specify the Remember I mentioned relevant provisions in the Constitution in Art.
agency in the national gov’t or authority in the national gov’t that for 10 on the extent of the President over autonomous region? So may
who exercises the power of general supervision. Ok? You were right if basis ta for saying that the President exercises general supervision.
it were the president then the statement becomes true. Because in so
far as congress is concerned, it can be considered as one of control
because in the first place the LGU is created by law and therefore its
existence and powers are derived from Congress. The President Administrative Powers or Political Powers?
exercises general supervision only. Of course the SC exercises judicial
review over acts of LGU. What is the kind of decentralization adopted or practiced in the
Philippines?
2. False.
Pimentel v. Aguirre, GR No. 132988, July 19, 2000: Under the
What would be the correct statement? I’m asking this question Philippine concept of local autonomy, the national government has not
because there is a need to clarify WON all gov’t units, including ARMM completely reqlinquished all its powers over local governments
or autonomous region for that matter, are under the general including autonomous regions. Only administrative powers over
supervision of the President. Let us say, the President exercises local affairs are delegated to political subdivisions. Thus,
general supervision over LGU, included ba na ang ARMM? Considering policy-setting for the entire country still lies in the President
that there seems to be a difference in the level or degree of autonomy and Congress.
between the LGUs (provinces, cities, municipalities and barangays) and
the autonomous regions. So this is again a reminder. (Also cited in Kida vs. Senate, October 18, 2011)
I am talking about the case of Limbona vs. Mangelin.
Problem Specific Criteria
Confident that Municipality of Consolacion can qualify as a new Barangays: Population

city under existing laws, its officials ask you whether the whole Municipalities: Income, Population & Land Area
Province of Cebu will participate in the plebiscite that will be conducted CC: Income & Population OR Land Area
(assuming that they succeed in persuading Congress to pass a law HUC: Income & Population
converting Consolacion into a city). What will be your advice? Province: Income & Population OR Land Area
In downgrading (like from independent component city to component Question

city) there is a need for plebiscite. Who will participate? That specific
city (its inhabitants). In the LGC of 1991, a municipality may be created with less
than 50 sq. kms. if it is an island. Under the LGC of 1991, however,
If it’s a case of upgrading, (involving a highly urbanized city) the there is no such exception when it comes to creation of a province
Supreme Court ruled in the case of Umali, that if you upgrade, it will which normally requires at least 2,000 sq. kms. May the implementing
become independent of the province. If it’s a component and it rules of the LGC of 1991 provide for a similar exception?
becomes independent or a highly urbanized city, it’s beyond the
supervision of province, and since it is beyond the supervision of the
province, it is not part of the province anymore, territorially speaking. Navarro vs. Ermita
In fact, it will not anymore contribute to the funds of the province. The
Supreme Court ruled that this is substantial alteration of boundaries. – this is a case involving a province, which has a different rule when
compared to a municipality in terms of land area requirement
Theoretically, you can qualify your answer, but legally, you cannot  Par. 2 of Art. 9 in the IRR of the LGC of 1991, which states
because when you create a city today, you need to take 100 million that “the land area requirement shall not apply where the
income in the past 2 preceding years. As was mentioned before, RA proposed province is composed of 1 or more islands” violates
9009 only amended the section about a newly created city but it did the LGC of 1991 and therefore null and void.
not any corresponding changes or amendments to that section about
highly urbanized city (which is still 50 million). This means that if you  Nowhere in the LGC is the said provision stated or
create a city today, legally, it can exist as a highly urbanized city implied. Under Sec. 461 of the LGC, the only instance when the
already because the requirement is just 50 million and it is then territorial or land area requirement need not be complied with is
beyond the supervision of the province of Cebu. Applying Umali when there is already compliance with the population
doctrine, mother province of Cebu should participate in the plebiscite. requirement.
Miranda vs. Aguirre (Sept. 1999)
2010 Navarro vs. Ermita, reversed in 2011!

The Supreme Court ruled that plebiscite was required even in
cases of “conversion”.
 SC through J. Nachura, ruled that Congress intended to
apply the exemption on land area requirements enjoyed by
It observed that the common denominator in Section 10, Article X of
municipalities and cities which have islands as territories to
the 1987 Constitution is the material change in the political and
the Province (Province of Dinagat)
economic rights of the local government units directly affected as well
as the people therein. It is precisely for this reason that the
 Note of J. Carpio’s Dissent that the majority opinion will
Constitution requires the approval of the people in the political units
allow the creation of a province with only one (1) unit (say a
“directly affected.”
municipality) instead of various component LGU’s.
Umali vs. COMELEC (April 2014)

Question:
While conversion to an HUC is not explicitly provided in Sec. 10,

For the purpose of determining compliance with the income
Article X of the Constitution, xxxx the conversion of a component
requirements for the creation and/or conversion of a local government
city into an HUC is substantial alteration of boundaries. As the
unit (LGU), what constitutes the “annual income” of an LGU?
phrase implies, “substantial alteration of boundaries” involves and
necessarily entails a change in the geographical configuration of a local
government unit or units. The phrase “boundaries” should not be
Again, clarification, RA 9009 increasing to 100M and restricting the
limited to the mere physical one, referring to the metes and bounds of
component to locally generated income, therefore excluding all other
the LGU, but also to its political boundaries.
sources not internally generated, like Internal Revenue Allotment (IRA)
applies only in the creation of a city. Meaning, if there is a creation of
a province or a municipality, we go back to the general rule that IRA,
being distributed or released automatically to all LGUs, is not subject
to any condition or restriction, and it can also be considered as forming
part of the gross annual income. So, regular siya kai regularly released
man. Caveat lang ni siya. Not yet tested sa SC ruling but I’m sure it’s
an important issue.
So, RA 9009 only applies to the creation of cities, and I don’t know if Problem
gi-overstretch nasad nako but I’m thinking also that it restricts the
manner of creating a city, because it mentions of two kinds of In preparation for the 2016 local and national elections, the
creations of cities. One, when you convert a municipality into a city COMELEC conducted investigations in order to ascertain the veracity of
and the other is when you make the city out of clustered barangays. reports of “ghost precincts”. Based on the investigations it conducted,
Ang ako lang thinking nga who knows, there’s another way of creating COMELEC discovered that there are no inhabitants in Barangay Diwata
a city, other than municipality converted into a city or cluster of in Municipality of Lazi, Siquijor. Consequently, the COMELEC removed
barangays made into a city. What if a province is to be converted into Barangay Diwata among the list of precincts in the Municipality of Lazi,
a city? Di na muapply ang RA 9009. Ingon si Pimental this is to Siquijor for purposes of the 2016 elections. Is the act of the COMELEC
prevent this mad rush into becoming a city para lang makakuha ug valid?
IRA, sila sad ga mad rush sad sila sa paghimo ug RA 9009. Just a
question.
The act of the Comelec in delisting a precinct would result to delisting
MERGER OF LGU’s a barangay because under the Omnibus Election Code, every barangay
must have at least one precinct. If that barangay is not provided with
Merger of LGU’s a precinct, it is equivalent to abolition of that barangay and this is not
the correct process of abolition. There is a specific requirement in
 Should territory to be annexed be “contiguous”? case of abolition of a local government unit, in particular a barangay.
 What will happen to the “corporate personalities” of the
merged units? The Omnibus Election Code mandates that every barangay must have
 What will happen to the ordinances of the merged units, will at least one precinct. If you remove a barangay from the list of
these ordinances be considered ineffective? precinct that would mean that you are not recognizing that particular
barangay. Supreme Court said, it does not necessarily follow that just
because there are no inhabitants at the time of the investigation that it
Let’s proceed to the basic distinction first. If you create a legislative is a ghost precinct because people move.
district, the requirement is that the district should be contiguous,
compact and adjacent. Pero a local government unit, is the only It could be possible that at the time of the creation of a barangay,
requirement contiguity? What’s the difference between adjacent and which could be many decades ago, there were inhabitant and when
contiguous? the Comelec conducted the investigation, the inhabitants transferred to
another barangay. Don’t you think it is possible? It is possible.
- In American law on municipal corporations, gidistinguish ang
adjacent and contiguous. Ang contiguous mas restrictive siya I mentioned earlier that abolition is not automatic because there is a
in the sense that the two LGUs should touch each other in process. Let me go to this next problem which is related to the issue
their boundaries. Adjacent only requires that the territories on abolition.
are near each other. Dili mag require ug touching. Contiguity
would require a higher threshold while adjacent is more Problem
general, pwede near. Of course, exception kung islands, dili
mana nimo ma require na contiguous. Barangay Pobre is the poorest of all barangays in the
- As to merger, there’s no specific provision in the law Municipality of Carmen mainly because of its rocky, hilly, and
whether contiguity is required, but American law states that mountainous topography. It thrives mainly on the IRA that it receives.
that should be a requirement insofar as the merger of LGUs Without the IRA, it could hardly pay even the honoraria of the
is concerned. So, territories that are merely adjacent but are barangay tanods.
not contiguous may not be merged.
1. Can it lawfully be abolished?
What will happen to the corporate personality of the merged units? 2. If yes, what is the procedure for the abolition of Barangay
Pobre?
- Ma extinct na ang existence or personalities. Based on
American jurisprudence, they will lose their respective
corporate personalities and there is now just one corporate Abolition
personality.
Ground:
What will happen to the ordinances that were passed in the LGUs that When its income, population, or land area has been
have ceased to exist? irreversibly reduced to less than the minimum standards as
certified by the national agencies concerned. (Sec. 9, LGC)
- The rule again, based on American jurisprudence, is that
until and unless the new unit can come up with its own Note: Irreversible reduction to less than the minimum standard only
ordinance, then the respective ordinances of the merged offers a ground for abolition. Hence, a further act (law or ordinance)
units will continue to be effective, but only with respect to is still required to effect abolition. [DILG Opinion NO. 17 Series of
their own territories, until new ordinances shall have been 2006]
passed. Those are important considerations.
Remember the rule: the ground for abolition is irreversible reduction to

less than the minimum standards but income is not a criterion for the
creation of a barangay. This is a bit tricky but this is just a reminder. Jurisprudence, the territory to which the abolished LGU is
annexed, will have the right to dispose of the abolished
When its income, population or land area has been irreversibly LGU’s properties in order to pay off the abolished LGU’s
reduced to less than the minimum standards as certified by the obligations.
appropriate agency; income in barangay is irrelevant. No matter how
poor the barangay may be, it may not be considered right away as a Will the officers of the abolished LGU continue to exercise their
ground for the abolition. function?
But even if it is a ground for abolition, there is still a procedure. What - Certainly, they will not. The moment there is valid abolition
is the procedure? of an office, then there is no more relationship between the
public officer and the office itself.
First, there should be an ordinance of the Sanggunian Panlalawigan of
which the Municipality of Carmen is a part; This came out in the bar exam. Settlement of boundary dispute –
Next, what should be stated in the ordinance abolishing the barangay? 2005 Bar
Second, the ordinance should specify the territory to which this There was a boundary dispute between Dueñas, a municipality,
barangay will become part. As you know when you abolish a barangay, and Passi, an independent component city, both of the same province.
it does not mean it will disappear. Hence, the ordinance must specify State how the two local government units should settle their boundary
to which territory the barangay abolished will become part of. dispute.
This brings me to Section 9 and 10 of RA 7160 –

Before the Old Local Government Code of 1983, the Revised
 Section 9, RA 7160 x x x. The law or ordinance Administrative Code provided for two levels of boundary disputes. The
abolishing a local government unit shall specify the Provincial Governments were then allowed to hear and decide
province, city, municipality, or barangay with which settlement disputes.
the local government unit sought to be abolished will
be incorporated or merged. It was changed by the old Government Code where the
 Section 10, RA 7160. Plebiscite Requirement. No creation, Sanggunian of the mother province for example were not anymore
divison, merger, abolition, or substantial alteration of given the power to decide. In a very long time during the time of
boundaries of local government units shall take Marcos, any disputes as to boundary had to be filed in the Regional
effect unless approved by a majority of the votes cast Trial Court. Although there may be a requirement on exerting efforts
in a plebiscite called for the purpose in the political to settle a case, the Sanggunian panlalawigan did not have authority
unit or units directly affected. Said plebiscite shall be to decide sitting as a quasi judicial body or probably a judicial body
conducted by COMELEC within 120 days from the since this would require a specific decision on matters of law.
date of effectivity of the law or ordinance affecting
such action unless such law or ordinance fixes Under the Local Government Code of 1991, the Sanggunian
another date. can now decide and the Regional Trial Court will only have jurisdiction
if a decision by the Sanggunian has already been made.
In regard to abolition I have three (3) important questions: Steps in Settlement:
Questions 1st level: Amicable Settlement

2nd level: Sanggunian
 What will happen to the properties owned by the abolished 3rd level: Appeal to the RTC
LGU?
 What will happen to the obligations incurred by the
abolished LGU? Settlement of Boundary Disputes
 Will the officers of the abolished LGU continue to exercise
their functions? 1. It is mandated that boundary disputes between and among
local government units shall, as much as possible, be settled
amicably.
What will happen to the properties owned by the abolished LGU? They 2. Amicable settlement is within the jurisdiction of the
will not of course disappear. The relevant question there is, will there Sanggunian/s of the mother unit/s as a general rule.
be payment of compensation? Automatic absorb? If there will be 3. In case of failure to settle, the Sanggunian concerned tries
payment of compensation who will receive when the LGU is already the case.
annexed to another LGU? 4. Within the time and manner prescribed by the Rules of
Court, any party may elevate the decision of the
- Ownership of the properties will be transferred to the Sanggunian concerned to the proper Regional Trial Court
territory to which the abolished LGU is annexed. having jurisdiction over the area.
What will happen to the obligations incurred by the abolished LGU?

Bar question: State how two Local government units can settle their
- The rule therefore on obligations is that, obligations are boundary dispute.
shouldered or assumed. In fact, based on American
See Sec. 118 & 119 LGC lawful means requirement…
Two (2) Tests are usually applied:
LOCAL POLICE POWER 3. Rational Relationship Test

4. Strict Scrutiny Test
Local Police Power
Using the rational basis examination, laws or ordinances are upheld if
 THE “GENERAL WELFARE CLAUSE”: they rationally further a legitimate governmental interest.
Governmental interest is extensively examined and the availability of
Sec. 16. General Welfare. Every local government unit shall less restrictive measures is considered.
exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate, Applying strict scrutiny, the focus is on the presence of compelling,
or incidental for its efficient and effective governance, and rather than substantial, governmental interest and on the absence of
those which are essential to the promotion of the general less restrictive means for achieving that interest. [Fernando vs. St.
welfare. Scholastica’s College, G.R. No. 161107, March 12, 2013]
In the past (bar) you will be given an ordinance, and you will be asked On the first Test (Rational basis examination/Rational Relationship
to determine the validity of the ordinance. In many cases the Test), there are only two things to remember. Namely, these are the
ordinance involved a police power measure. following:
a) That there must be a “Legitimate Governmental Purpose” (e.g.

general welfare health, traffic, etc.), and
Requisites for Validity of Local Police Power
b) It is the “Least Intrusive means”
Tatel vs. Mun. of Virac:
- meaning, there must be no other means of accomplishment that are
7. must not contravene the Constitution AND statute available. Otherwise, it is considered to be an overbreadth (or not the
8. not unfair or oppressive (also a constitutional least intrusive).
requirement)
9. not partial or discriminatory (also a constitutional On the other hand, Strict Scrutiny Test requires a higher threshold. It
requirement) does not only require a legitimate governmental interest. It rather
10. not prohibit, but only regulate lawful trade (see: De la requires “compelling state interest”. Examples of which are on
Cruz vs. Paras where an ordinance prohibited the operation accounts of national security, maintenance of peace and order,
of night clubs) territorial integrity, etc.
11. consistent with public policy (because of the
requirements of valid delegation of legislative power) see:
(Lim vs. Pacquing) where it was found out that the “national
policy”was for National Government, not for LGU’s, to grant Q: Since there are two tests, when do apply one and not the other?
“franchises” for operation of jai-alai. LGU’s can only regulate
but not grant operation of jai-alai. A: The courts are guided by what the nature of the right, liberty or
12. not unreasonable (also a constitutional reqt.) (See: freedom is. It must be determined whether or not it involves “high
Balacuit case where an ordinance penalized movie houses value freedom”. If what is involved, is a high value freedom then Strict
that charged full payment for admission of children between Scrutiny Test must be applied. Otherwise, what is applicable is the
7-12) Rational Relationship Test.
High value freedom includes right to privacy, expression, religion and

13. xxx also applies “lawful subject” and “lawful means”
the like.
requirements!
Consequently, the burden of proving the unconstitutionality does not
lie on the one assailing it. Instead, the burden of proving the existence
Simplified by Supreme Court as:/All 6 are covered by: lawful
of compelling state interest belongs to the state. The presumption of
subject” and “lawful means”
constitutionality is not observed in this situation.
Lawful subject – any act that affects the public, not just a private
In the case of non-high value freedoms like socio-economic rights,
group or class; a lawful subject of regulation/ the act affects the public
business, etc., the test applicable is the Rational Relationship Test.
and therefore it is subject to regulation
Moreover, there is also a presumption of constitutionality of the
regulation.
Lawful means – the means employed in order to achieve or accomplish
the purpose of the law, shall be reasonable necessary and not unduly
These rules are also applicable to ordinances issued as police
oppressive upon individuals.
measures
Q: Do you know how to apply the second requisite of lawful means?
.
A: There are two tests usually applied to determine compliance on the
Lucena Grand Central Terminal, Inc. vs. JAC Liner (2005) Local Eminent Domain, cont’d…
As with the State, the local government may be considered as having Specific Requirements: (Sec. 19, LGC and Jesus is Lord Christian
properly exercised its police power only if the following requisites are School vs. City of Pasig case)
met: (1) the interests of the public generally, as distinguished
from those of a particular class, require the interference of the 5. An ordinance is enacted by the local legislative council
State, and (2) the means employed are reasonably necessary authorizing the local chief executive, in behalf of the local
for the attainment of the object sought to be accomplished government unit, to exercise the power of eminent domain
and not unduly oppressive upon individuals. Otherwise stated, or pursue expropriation proceedings over a particular private
there must be a concurrence of a lawful subject and lawful property.
method.
6. For public use, purpose, or welfare, or for the benefit
of the poor and the landless. (cf. Sec. 33 of xxx IRR)
Lucena Grand Central Terminal, Inc. vs. JAC Liner (2005)
Facts: There were certain terminals in the interior part of the city. The The specific requirements, diba you’ve learned this already. Just a
existence of these terminals was believed to be the cause of the traffic reminder, it’s now ordinance instead of resolution which was the
congestion. The solution was to have a terminal and make it a central requirement before in the old code.
terminal outside the city. Indeed it was implemented by the LGU but at
the same time it ordered through the ordinance that existing terminals
inside the city cannot operate as terminals anymore. Aggrieved, the
owners filed a case in court questioning the ordinance on the ground But the case of VM Paranaque is open to the possibility that even if a
that it took away from them their property without just compensation. resolution was passed in order to authorize the local chief executive to
The LGU countered by contending that it was an exercise of Local expropriate, if the resolution was passed following the procedure for
Police Power. passing an ordinance, it may comply with the requirements. So that’s
the important thing that you need to remember. So you cannot be
Issue: Was it a valid exercise of Police Power? strictly positivist with your approach that and law kay ordinance so
there’s no way that a resolution can take the place of an ordinance.
Ruling: No, it was an invalid exercise of Local Police Power. What the Supreme Court said in MV Paranaque was that if a resolution
was passed, but then again you would ask why would the Sanggunian
A valid exercise of Local Police Power presupposes that it is of lawful would pass that, but maybe only after realizing that the requirement
subject and lawful means. Furthermore, the lawful means requirement now is an ordinance. And the ordinance must be specific in the sense
holds that the means used to accomplish the subject must be that it should specify the particular private property. So you should not
reasonably necessary. have an ordinance that is too sweeping simply authorizing the local
chief executive mura bag general power of attorney ba, so it must be
In the present case, the means employed by the City was not specific over a particular private property. This is just a reminder kay
reasonably necessary. It is because there are other more conservative basin imo focus ang ordinance ra then ang other requirements
means available to resolve the issue on traffic congestion. To wit, it makalimot ka.
could have implemented strictly the traffic rules, or resorted to road-
widening—the City did not. Hence, the City’s act was an overbreadth.
CAVEAT: Most recent Jurisprudence now teaches that the Overbreadth City of Cebu vs. Dedamo (2002)
Doctrine should be merely contained to Freedom of expression cases.
 While Sec. 4 of Rule 67 of the Rules of Court provides that
just compensation shall be determined at the time of the
filing of the complaint for expropriation (or, time of taking
LOCAL EMINENT DOMAIN
whichever came first), such rule cannot prevail over RA
7160, which is a substantive law.
Heirs of Alberto Suguitan vs. City of Mandaluyong (G.R. No.
135087, March 14, 2000)
 Sec. 4, Rule 67 (time of filing of complaint or taking,
whichever came first) vs. LGC: at the time of “taking”.
Despite the existence of this legislative grant in favor of local
governments, it is still the duty of the courts to determine
whether the power of eminent domain is being exercised in
You know na noh nga ang reckoning point of the just
accordance with the delegating law. In fact, the courts have
compensation is the TAKING. Unlike in the case of expropriation of the
adopted a more censorious attitude in resolving questions
national government that the just compensation will have to be based
involving the proper exercise of this delegated power by local
on the fair market value of the property at the time of taking or filing
bodies, as compared to instances when it is directly exercised
of a complaint whichever comes first. Sa local government
by the national legislature.
expropriation, time of taking gyud. Specific. And then, immediate
possession would require a deposit. 15% of the fair market value
based on the current tax declaration. In the case of national
expropriation, how much is the deposit for immediate possession while
pending pa ag expropriation? That’s another important difference. You
should take note of that. The Rules of Court would require a deposit of
the value of the property . Meaning 100%. 100% gyud para nay common kuno aning 3 Consti class the requirement of public purpose.
immediate possession while the case is still pending. Maong niingon ang Supreme Court na, indeed correct si Lolo Bernas,
na while our constitutional law is basically patterned from that of the
Now Republic vs. Lim, familiar? US, we cut the umbilical cord.. karemember mo ana? Sakit sakit gyud
to. (hahaha) So kini, for obedience ra gud na gud. Kung applicable ang
Republic vs. Lim (2005) rule sa US, I apply nato. Pero kung tan-aw nato nay change in
circumstances or a different scenario, di nato iapply. We come up with
The landowner is entitled to recover possession of the our own. This is one example. So nachange na ang legal landscape. So
property expropriated if the government fails to fully pay just Supreme Court now says the expropriator should commit its use
compensation to the owner within a period of five (5) years pursuant to the purpose stated. Kay ug absolute owner ka, kining the
from the finality of the judgment in an expropriation disposition was unconditional. Sa Fery v Cabanatuan naai expection
proceeding. ang court na unless the expropriation proceeding provided for a
condition. Kung wala ang condition sa decision, absolute siya.
Unconditional. But now, Supreme Court said it is subject to the
condition .
MCIAA vs. Lozada, Sr. (2010) Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011), cont’d
Reversing “Fery vs. Municipality of Cabanatuan” (1921): The taking of a private land in expropriation proceedings is
always conditioned on its continued devotion to its public
“The expropriator should commit to use the property pursuant purpose. As a necessary corollary, once the purpose is
to the purpose stated in the petition for expropriation filed, terminated or peremptorily abandoned, then the former
failing which, it should file another petition for the new owner, if he so desires, may seek reversion (return), subject of
purpose. If not, it is then incumbent upon the expropriator to course to the return, at the very least, of the just compensation
return the said property to its private owner, if the latter received. The notion that the government, via expropriation
desires to reacquire the same.” proceedings, acquires unrestricted ownership for a fee simple title to
the covered land, is no longer tenable.
Either i-abandon ang public purpose or ilisan ug lain na purpose.

Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011) Interestingly, niingon ang Supreme Court na dapat mu-file kuno ug
laing information.
If the genuine public necessity of expropriation of private land ceases
or disappears, then there is no more cogent point for the government’s In case of Immediate Possession
retention of the expropriated land. The same legal situation should
hold if the government devotes the property to another public use very Before a local government unit may enter into the possession of the
much different from the original or deviates from the declared purpose property sought to be expropriated, it must (1) file a complaint for
to benefit another private person. expropriation sufficient in form and substance in the proper court and
(2) deposit with the said court at least 15% of the property’s fair
market value based on the current tax declaration. The law does
So the case of Fery v. Cabanatuan had been reversed. not make the determination of a public purpose a condition
Now remember pamo sa ruling sa Fery v Cabanatuan? Nag expropriate precedent to the issuance of a writ of possession. [Francia vs.
for a particular public purpose pero iyang gi abandon ang public Meycauayan (2008)]
purpose of the expropriation. Gi change niya for lain na public
purpose. So two purposes. Let’s say ni expropriate siya for public plaza
nya diay to giconvert niya to recreational facility. What was the ruling {September 27, 2014}
of the court in the case of Fery ? Para makasabot mo unsay gireverse.
In Fery v. Municipality of Cabanatuan, Supreme Court said the moment (Discussion of Mock Bar Exam question earlier raised by
the expropriator completed the expropriation and a certificate of title is Miguel Lumapas pertaining to the reclassification of land containing
issued pursuant thereto, the expropriator becomes kuno class an mineral oil deposits into commercial and ordering the oil
absolute owner or an owner in fee simple. Sa ato pa, he has all the establishments to transfer their properties and the Secretary of Energy
discretion on what to do with the property. So pwede niya I abandon assailing the same ordinance: The case of Social Justice Society vs
ang public purpose, pwede sad niya icontinue, pwede sad niya Chevron or Atienza (2008), involving the Pandacan Oil, something like
ireplace. Such that the original owner cannot necessarily recover the that. And the zoning ordinance was upheld as a police power measure.
property if the expropriator will not use it for the public purpose for Apparently the Supreme Court made a finding on the hierarchy of
which the expropriation was initiated. rights, chevron and those other oil companies affected, invoked the
right to property, kay business man, so property right daw. On the
Gireverse ni sa Supreme Court. First in MCIAA v Lozada, other hand, promotion of the right general welfare, involves the right
2010, second, Anunciacion Vda. De Ouano vs. Republic. Nya may of the locality to life. Between right to property or life, mo prevail ang
reasoning ang court. No. 1 ang Fery case penned by an American right to life. Kay ang right to life daw is irreplaceable. But you can
jusrtice, 1921 Spreme Court America nya gitrace sa Spreme Court ug replenish loss from property. Like love, irreplaceable, cannot be
unsa ba gyud diay ng sa US. Mao na ang conception sa US. Nya quantified. )
niingon dayon ang Supreme Court: Since 1921, we had the 1935
Consti, the 1973 Consti and then of course the 1987 Constitution. Nya
Problem requirements supposedly one time kay naa na man tong contract so-
icomply nimo ang requisites karon kay karon man nako pirmahan ang
The City of Cebu entered into a contract for services with DBL contract. Required ba nga mag certificate of availability of 90 million?
Corporation under which the latter will provide machineries, That is an important thing to consider. Or, 1.5million per month
equipment, and facilities for the dumping of garbage in a dumpsite. multiplied by 12 months every year kay ang meeting raba sa council,
The contract is for a term of 5 years at a rate of P1.5M per month. yearly man. Anah ba nah? The answer is per year. So it depends on
After two years, the City of Cebu, which was already under a new the contract class. If the obligation in the contract is to be complied
administration, stopped paying the monthly fees to DBL Corporation on with at one time, or payable one time lang, the certificate of
the ground that the contract was not authorized by the SP and not availability of funds should cover the exact amount. But if the expense,
covered by actual appropriation for the full amount of the contract. and therefore the obligation, will accrue over a long period of time,
May the City of Cebu be held liable to DBL Corporation? then the certificate of availability of funds does not have to cover the
entire project amount. Pwede siya as will accrue. So that is important
rule to remember.
Requisites for Validity of Contracts entered into by LGU’s
When to make actual appropriation for a contract:
A. The local government unit must have the power to enter
into the particular contract; The facts in the Osmeña case are not parallel to the facts in the instant
case. While in the former, the construction of the abattoir entailed the
B. Pursuant to Section 22(c) of the Local Government Code, payment in full of a fixed amount, the case at bar involved a contract
there must be a prior authorization by the Sanggunian for services still to be rendered which was payable on a monthly basis,
concerned, and a legible copy of the contract shall be just as in the Imus case. In the latter case, the Supreme Court did
posted at a conspicuous place in the provincial capitol or not declare the contract null and void ab initio for the reason
the city, municipal, or barangay hall; that appropriation for the project can be made subsequent to
the execution of the contract. (Quezon City vs. Lexber, Inc. 2001)
C. In accordance with Secs. 46 and 47, Chapter 8, Subtitle B,
Book V, 1987 Admin. Code, if the contract involves the
expenditure of public funds, there should be an actual This was the ruling of the court in Quezon City vs. Lexber. When to
appropriation and a certificate of availability of funds make actual appropriation for a contract. Distinguishing old cases
by the treasurer of the local government unit (Except in the Osmena and Imus cases, the first case, it involved payment in full of
case of a contract for supplies to be carried in stock) its amount. While in the latter case, it involved services and therefore
to be rendered not at one time and therefore payable on a monthly
D. The contract must conform with the formal requisites of basis. In the Imus case, it was not declared void ab initio even if it did
written contracts prescribed by law not cover the entire amount because the services were to be rendered
over a period of time. So as will accrue ang ma-cover sa budget.
Requisites for validity of contracts entered into by local government

units:
Alright. Kani, wala pa gyud nuon ni gi-ask since it was promulgated in
1. The local government unit must have the power to enter 2008. Remember this Quisumbing vs. Governor Garcia case?
into a particular contract; Resolution, or General Appropriation Ordinance? Resolution ang
2. there must be a prior authorization by the Sanggunian requirement, correct? Ohh.
concerned, the authorization is posted
3. there must be actual appropriation and certificate of Resolution or General Appropriation Ordinance?
availability of funds
4. the contract must conform with the formal requisites  Quisumbing v. Gov. Garcia (2008):
The fact that the Province of Cebu operated under a reenacted budget
Q: What will happen if one of the requisites is lacking? What will be in 2004 lent a complexion to this case which the trial court did not
the effect of the contract? apprehend. Sec. 323 of RA 7160 provides that in case of a reenacted
budget, “only the annual appropriations for salaries and wages
A: of existing positions, statutory and contractual obligations,
and essential operating expenses authorized in the annual
if absent ang 1 and 3 void, not subject to ratification (Doctrine of and supplemental budgets for the preceding year shall be
Estoppel will not apply) deemed reenacted.
if absent ang 2 and 4  voidable, subject to ratification
What I am asking you in the question is about actual appropriation and In this case, it was argued that pwede baya ug General Appropriation
certification of availability of funds. The question in the problem was, Ordinance because, asa man nah kuhaa ang funding, diba sa General
the contract is for five years at the rate of 1.5 million per month, Appropriation Ordinance? And what is required is authorization lang.
question: at the time that it is covered by the contract, is the LGU Prior authorization by the Sanggunian. Pero wala gi-specify kung unsa
required to state in the certificate of availability of funds that there will nga authorization. Resolution ba, or ordinance. That is the effect of
be (1.5m x 12 months x 5 years) 90million. combination of American and Civil law legal system. Kay kani man gud
nga mga words like prior authorization, American origin man gud nah.
Contract, kay usa ra baya ang contract unya mo-comply baya ka sa Dili specific ba as to the form. Unya for example, kanang mga posting
requirements on ordinances or resolutions, sa USA anah class, ang ila
rang requirement is that it shall be posted in a conspicuous place…or For defective public works: ownership is not the rule; only
in a manner…kanang mga ingon anah raba. Kita class, sobra ka supervision. (Sir says to check reviewers.)
specific. Ibutang gyud nga posted in three consecutive weeks…specific
gyud ba. In this case, gibutang nga prior authorization. Wala gyud
gibutang kung unsay form. Tan-awa ning Garcia, naa pay argument
nga: Is it not nga ang ordinance, gikan sa Sanggunian? Ang resolution, 2011 Bar
gikan sab sa sanggunian. Nganong dili man mu-take the form of a
resolution ang ordinance and consider it as a prior authorization? A collision occurred involving a passenger jeepney driven by
Leonardo, a cargo truck driven by Joseph, and a dump truck driven by
Ang problema class is this. The General Appropriation Ordinance Lauro but owned by the City of Cebu. Lauro was on his way to get a
usually, kay general gani, it cannot specify each and every project. load of sand for the repair of road along Fuente Street, Cebu City. As a
And you know, each and every project shall be covered with a specific result of the collision, 3 passengers of the jeepney died. Their families
contract. So kung mu-ingon ka ug road widening of Pelaez Street, filed a complaint for damages against Joseph who in turn filed a third
kana lang street daan, one contract nah nah. Over-pass in another party complaint against the City of Cebu and Lauro.
area, another project na pud nah siya, then another contract nasad. As Is the City of Cebu liable for the tort committed by its
a rule, every specific project covered by a contract, and because it is employee?
covered by a contract, it should likewise carry a specific and definite
resolution for that contract. Kay ang imung resolution specific man.
Example is a resolution authorizing the city mayor to sign a contract This copied the case of San Fernando La Union vs. Firme. So are
for the construction of an overpass. So specific siya. Unya ibutang pud they liable for damages for torts?
kung kinsa ang contractor. Lain-lain pa gyud gani nah. Pwede man nga
lain ang mu-trabaho sa cement, and lain pud ang sa earthmoving. Naa It was for the purpose of loading sand for governmental purpose. So in
man nang mga ingon anah. Daghan ang mga contractors nga this case you distinguish governmental from proprietary. If it is
involved. So lain-lain man nah nga contract so separate sad nah nga governmental it is not liable but for proprietary, liable. But under
authorization or resolution. Mao nga ni-ingon ang SC nga depende. If section 24 of the LGC there is no such distinction.
the general appropriation ordinance is specific as to the project, which
Problem
by the way does not happen kay imagina ninyo nga mu-ingon “15
million for road widening” pero walay gisulti nga street. Pero bisan ug
nag sulti pa ug street, it is not pa jud specific as to the type of the The Sangguniang Panlungsod (SP) of Carcar City ordered the
construction of a wooden stage for a play during its fiesta celebration.
project. Diba? So you remember this rule. This has never been asked
in the bar. The stage, however, collapsed causing serious physical injuries to the
participants of the play. The participants sued Carcar City and all its SP
members for Damages. May the suit prosper? If yes, who should be
held liable?
Should the appropriation ordinance, for instance, already
contain in sufficient detail the project and cost of a capital
outlay such that all that the LCE needs to do after undergoing the Apply the Torio vs. Fontanilla case, fiesta celebration is proprietary,
requisite public bidding is to execute the contract, no further but who will be held liable? The members of the SP will not be liable
authorization is required, the appropriation ordinance already because of the principle of distinct and separate personality.
being sufficient.
Since a LGU may be held liable for damages in some instances, we
need to know how to enforce monetary judgment. Our case in course
here is the municipality of Makati vs CA.
But that is more of a theoretical explanation by the court than actual
because lisud man na pangitaon sa general appropriation ordinance Enforcement of Monetary Judgment
nga specific.
1. Levy on the patrimonial properties of the judgment
On the other hand, should the appropriation ordinance local government unit;
described the projects in generic terms such as “infrastructure 2. When a municipality fails or refuses, without justifiable
projects”, “inter-municipal waterworks, drainage and sewerage, flood reason, to effect payment of a final money judgment
control, and irrigation system projects”, “reclamation projects”, or rendered against it, the claimant may avail of the remedy
“roads and bridges”, there is an obvious need for a covering of mandamus in order to compel the enactment and
contract for every specific project that in turn requires approval of the necessary appropriation ordinance,
approval by the sanggunian. and the corresponding disbursement of municipal
funds therefore.” (Mun. of Makati vs. CA)
Specific sanggunian approval may also be required for the
purchase of goods and services which are neither specified in
the appropriation ordinance nor encompassed within the
You cannot go straight to the funds of the LGU because as you know
regular personal services and maintenance operating
public funds will be taken from the public treasury only by law for
expenses.
congress and ordinance for local government officials
LIABILITY FOR DAMAGES
2005 Bar
In the May 8, 1995 elections for local officials whose terms were to 2011 Bar
commence on June 30, 1995, Ricky filed on March 20, 1995 his
certificate of candidacy for the Office of Governor of Laguna. He won, Alfredo was elected municipal mayor for 3 consecutive terms.
but his qualifications as an elected official was questioned. It is During his third term, the municipality became a city. Alfredo ran for
admitted that he is a repatriated Filipino citizen, and resident of the city mayor during the next immediately succeeding election. Voltaire
Province of Laguna. To be qualified for the office to which a local sought his disqualification citing the 3 term limit for elective officials.
official has been elected, what at the latest should he be: Will Voltaire’s action prosper?
(a) A Filipino citizen? Explain.

(b) A resident of the locality? Explain. (No discussion by Sir. He presumed we know this already)
For local elective officials, the applicable case is Frivaldo vs. 2011 Bar
COMELEC
Adela served as mayor of Kasim for 2 consecutive terms. On her
As ruled in Frivaldo the rule of retroactivity on the effects of third term, COMELEC ousted her in an election protest that Gudi, her
repatriation. So if you have been repatriated a year before the filing of opponent, filed against her. Two years later, Gudi faced recall
the certificate of candidacy the court in this case that it should be proceedings and Adela ran in the recall election against him. Adela
given a retroactive effect. It should retroact from the day of filing of won and served as Mayor for Gudi’s remaining term. Can Adela run
the application so by the time you filed for the certificate of candidacy again for Mayor in the next succeeding election without violating the 3
you are considered as a Filipino and you were elected and voted upon term limit?
he was already a Filipino.
Section 39 of the LGC qualifications of elective officials and not of Vacancies and Successions
candidates so an official is considered as an elective official upon
proclamation, taking oath and assumption of office. So at that moment Issues:
ang required nga mu possess sa citizenship requirement. Because
some other requirement has a specific reckoning point like the second 1. Meaning of “permanent vacancy”
question, 2. Method of “ranking”
3. Meaning of “last vacancy in the Sanggunian”
So an “elected” official is considered only an “elected” official upon
proclamation, taking oath and assumption of office. So at that moment
siya required mo possess sa citizenship requirement. Only citizen 2008 Bar
requirement because some other requirements, naay specific
reckoning point. Like the second question, the residency requirement: On August 8, 2008, the Governor of Bohol died and Vice-
it is 1 year on the day of election not noon of June 30. Governor Cesar became the Governor by operation of law. Accordingly,
Benito, the highest ranking member of the Sangguniang Panlalawigan
was elevated to the position of Vice-Governor. By the elevation of
Citizenship Benito to the office of the Vice-Govenor, a vacancy in the Sangguniang
Panglalawigan was created. How should the vacancy be filled?
- Natural-born or otherwise, including “naturalized”
citizen of the Philippines
It depends whether Benito is a member of a political party. First, you
Frivaldo Case: The qualifications in the LGC refer to that of need to know what are the instances of permanent vacancy (as shown
“Elective” Officials (and not of “candidates”), hence, these below). Second, you need to know the formula. Third, you need to
qualifications need to be possessed by the official not at the know who caused the last vacancy. (Also what is the meaning of last
time he filed his certificate of candidacy but at the time he vacancy in the sanggunian)
takes his oath of office and assumes his post. [2005 Bar
Exam]
Permanent Vacancy
Eligibility of Ecclesiastics to a Local elective position Official:

1. Fills a higher vacant position
 Section 2175 of the old Administrative Code stated: “In no 2. Refuses to assume office
case shall there be elected or appointed to a 3. Fails to qualify
municipal office ecclesiastics, soldiers in active 4. Dies
service, persons receiving salaries or compensation 5. Removed from office
from provincial or national funds, or contractors for 6. Resigns
public works of the municipality.” 7. Permanently incapacitated to discharge the functions
 In Pamil vs. Teleron (1978), the vote of 7 was not enough to of his office
declare the above provision unconstitutional.
Formula for ranking the Sanggunian members: Illustration:
Mayor: X (XXX)
Vice-Mayor: Y (PPP)
“Ranking”
Councilors:
A (KKK)
 Formula:
B (XXX)
C (PPP)
Votes Obtained
D (PPP)
______________________________________
E (KKK)
Total Registered Voters in each district
F (Independent)
(not votes cast)
(see Sec. 44, Victoria vs. COMELEC) G (YYY)
H (PPP)
Note: A tie between and among the highest ranking sanggunian
members shall be resolved by “drawing of lots.”
The death of Mayor X results in permanent vacancy. As a result, Y will
become the Mayor. Another vacancy will be created and that is the
Ang kuyaw lang diha ang “in each district” kay instead of votes cast office of the Vice-Mayor. So it will now be the highest ranking
sanggunian member who will become Vice-Mayor. So in the case, A
which is the usual way of computing like in the case of party-list, it is
votes obtained over votes cast for the party-list. Kani siya dili votes will the Vice-Mayor and then B will now be the highest ranking
councilor. Now we need to fill up the vacancy.
cast but “total registered voters in each district”. Technical siya nga
requirement.
B will come out as the number one councilor, and then si H will be the
7th councilor. Now, we will have to fill up the vacancy. Meaning, there
How do you break the tie between the highest ranking sanggunian
members? DRAWING OF LOTS. shall be someone who will be appointed to become councilor. Nya ang
rule class kay ingon ani man: that someone should come from the
political party if the one who caused the last vacancy has a political
Vacancy party. Mao na importante na makibaw ka who caused the last vacancy.
Our prospects would be: Mayor, because had he not died, wala’y
 How to fill up the vacancy? vacancy. The Vice-Mayor, because had he not assumed the post of the
Mayor, walay sa’y succession. The other prospect is A, because he
It depends on the kind of LGU and it depends on whether the succeeded the post of the Vice-Mayor. And finally, si H, kay ni-succeed
one who “caused the last vacancy” is a member of a political pud siya sa number 7 spot. So who caused the last vacancy? (Navarro
party or not. vs. CA)
If not a member of political party, the Sanggunian concerned In this case, it is A who caused the last vacancy. Si Councilor A. Since
“recommends” to either the President (Prov, HUC, ICC) or the A is a member of KKK political party, it is his party that will nominate.
Governor (CC & Mun), as the case may be. If a member of political The recording has to be this kind of interpretation is because the
party, the party of the official who “caused the last vacancy” shall purpose of the rule is to maintain party representation as willed by the
nominate to the President or the Governor, as the case may be. If in people in the election. As a result nga si A ni succeed sa post sa Vice-
the Barangay Sanggunian, since there is no political party, the Mayor, ang KKK party would lose a representative in the person of A.
Sanggunian concerned recommends to the Mayor. (See Sec. 45; So it is but a sound interpretation to say nga ang KKK ang maka
Farinas vs. Barba) appoint. Once appointed by the appointing authority, then i.restore
ang party representation in the Sanggunian.
It depends on the LGU because mag depende man gud kinsay mo

Navarro vs. CA (2001)
appoint.
Provinces, HUC’s – President
The reason behind the right given to a political party to
All others – Governor except for Barangay
nominate a replacement where a permanent vacancy occurs in
Barangay – Mayor
the Sanggunian is to maintain the party representation as
willed by the people in the election.
By appointment man ang pag fill-up sa vacancy. So for example (refer
to the illustration below), Mayor X died, what is the rule on
succession?
The case of Damasen vs. Tumamao, which can still be considered as a
recent case on the matter, states the requirements as to nomination:
1. Appointee shall come from the same political party who caused the
vacancy.
2. Appointee must have a nomination and a certificate of membership
that he is a bona fide member of the political party, from the highest
official of the political party concerned.
Damasen vs. Tumamao (2010) Temporary Vacancy, cont’d …
Conditions for the rule of succession under Section 45 of the  In case of temporary incapacity, the Vice or the Highest
LGC to apply: Ranking Sanggunian member (HRS) shall automatically
exercise the powers and functions of the Local Chief
1. The appointee shall come from the same political party as Executive (LCE)
that of the Sanggunian member who caused the  All powers and functions of the LCE can by exercised by the
vacancy; Vice or the HRS, except the power to appoint, suspend, or
2. The appointee must have a nomination and a Certificate dismiss employees, unless the temporary incapacity
of Membership (bona fide membership) from the exceeds thirty (30) days.
highest official of the political party concerned.  Hence, in People vs. Bustamante, the Vice Mayor (who
was the Acting Mayor) was held to have the power to
solemnize marriage which is a power belonging to the Mayor
- So kung provincial chairman lang siya of the party ang ni issue sa under the LGC.
certificate, dili na mao ang gi require sa code. Dapat ang highest-  A Vice-Governor who acts as Governor effectively
ranking official of the political party concerned. creates a temporary vacancy in the position of
Presiding Officer of the SP, entitling therefore the SP
to select an acting Presiding Officer during the
period that the Vice-Governor acts as Governor.
Problem [Gamboa vs. Aguirre (2009)]
Mayor X of Cebu City went to the United States for one

month. Vice-Mayor Y acted as Mayor in the meantime.
A. What powers may and may not be exercised by Y? Can Y Problem:

solemnize marriage?
B. While Y is acting as Mayor of Cebu City, may the SP select Mayor X of Cebu City went to Manila for three days to attend a
elect a new Presiding Officer? two-day seminar.
A. Will Y, the VM, act as Mayor during X’s absence?

ANS: B. Who shall perform the powers and functions of the Mayor of
Cebu City during X’s absence and what are the scope and
(A) limitations to such powers and functions?
(1) The powers and functions that the acting local chief executive can
exercise would be all powers and functions. The only powers and
functions that may not be exercised would be the power to appoint,
suspend , dismiss employees but subject to this exception where The Officer in Charge (OIC)
temporary incapacity exceeds thirty (30) days. In which case, pwede
na cya ka appoint, pwede na cya ka dismiss , pwede na cya ka  To be designated by the LCE when he is “travelling within
suspend. Otherwise, the public service will be prejudiced. the country but outside his territorial jurisdiction” for a
period not exceeding three (3) days
(2) Yes, because it does not involve the power to appoint, suspend or  The OIC [Vice or HRS of Brgy] shall perform the powers
dismiss employees. It was upheld, kay gikiha pa gud og usurpation of
and functions as may be delegated to him by the LCE
powers ang Vice Mayor in the case of People vs Bustamente, for
except the powers to appoint, suspend or dismiss
solemnizing marriage in his capacity as acting mayor. SC said, dili man
employees.
na usurpation because an acting mayor can exercise all the powers
 If the LCE has not designated an OIC, the Vice or the HRS
and functions of a mayor except only the three powers mentioned
has the right to assume the office of the LCE on the 4th day.
earlier.
(B) When that happens, it results also to temporary vacancy in the

Q: What is the distinction between an OIC mayor and an acting
position of the presiding officer. So it is not wrong for the Sanggunian
mayor?
to elect an acting presiding officer. In the case of Gamboa vs Aguirre,
kay gusto man sa Vice Governor nga while nag acting siya as If the local chief executive is travelling within the Philippines; og
Governor, siya lang japun ang presiding officer. Sc said no, your acting abroad, regardless of days, bisag one day lang – temporary vacancy
as Governor creates a temporary vacancy in the position of the na cya. Pero kung within the Philippines lang unya not exceeding three
presiding officer. It was correct for the Sanggunian to elect for an days, wala’y temporary vacancy. But the mayor will designate an OIC.
acting presiding officer. (BAR)
A: Ang sa acting mayor, all the powers and function of the local chief
executive except for the 3 exceptions; ang OIC, ang first nimong tan-
awon ang designation kay e-designate man cya, unsa nga powers ang
gihatag sa local chief executive niya. He shall perform powers and
functions as may be delegated to him.
Ang sa acting, all; ang sa OIC based on the designation letter.
So what does it tell you? Ang preventive suspension diay ani nga mga
Q: Kung OIC, bisag kinsa ang e-appoint? cases sa local government code, after pa diay pg file sa answer, I think
this is important dili na siya nga inig ka receive nimo sa sub poena to
A: Dili pud. Una sa list nga e-designate ang Vice-Mayor. file answer dungan sad ang preventive suspension.
Under sec. 63 and as interpreted by SC in Jason III vs CA , there are

three conditions sine quo-non for the position of preventive
PREVENTIVE SUSPENSION
suspension, of course among others EVIDENCE OF GUILT IS STRONG,
common mana sa preventive suspension.
Naay specific requirements ang Sec. 63 in the imposition of preventive
suspension, this is administrative disciplinary action.
Given the gravity of the offense, respondent might influence witnesses
or pose a threat to records/evidence, kana understandable na man sila
Q: Who can impose preventive suspension during the pendency of an
nga mga elements, what will surprise you is the first issues have
administrative disciplinary proceeding?
already been joined. But caveat in the case of Jason III dili answer ang
A: Kung administrative case, duha’y options , whether you go to the gi-file it was like motion for bill of particular and several other motions,
Office of the Ombudsman or you go to the proper agency or officer according to the SC dili kinahanglan nga answer ang gi file, any
under the Local Government Code. Unya concurrent na siya, in the pleading that will tender an issue, so whatever pleading is filed in
sense nga nag file ka sa Mayor of a highly urbanized city pero ang response to the sub-poena, but nag tender ug issue then issues have
imong gi-file nga administrative complaint kay Office of the President been joined. Wala pa gi ask sa bar; pwede pa sud pa within 10 years.
which means dili na pwede ang mo act Ombudsman. Kung gusto ka
adto lang ka sa Ombudsman, may technique man sad ron when to go
PRINCIPLE OF CONDONATION
to the Office of the Ombudsman or to the Office of the President.
What is the principle of condonation?

Kung ka political party nimo ang President, you go to the Office of the
President, assuming nga ang respondent kontra partido sad, quick ang
Actually Aguinaldo doctrine nah, and that was the first case after the
resolution didto.
effectivity of the LGC, so pwedi ra tawgun ug Aguinaldo doctrine. But
actually principle of condonation.
Kung kontra partido nimo ang President unya ang iyang ka party mate
kay ang respondent, you know, you should not go to the Office of the
The famous (or infamous) “Aguinaldo Doctrine”
President, katulgan na diha. Instead you go to the Ombudsman then.
 A public official cannot be removed from office for

Preventive Suspension
administrative misconduct committed during a prior
term, since his re-election to the office operates as a
Authority:
condonation of the officer’s previous misconduct to the
1. President, in the case of HUC and ICC;
extent of cutting off his right to remove him therefor.
2. Governor, in the case of CC and Mun;
 It applies only to administrative case for misconduct, so
3. Mayor, in the case of Barangay.
the official may still be held criminally or civilly liable
for the same act. (Cf: “Three-fold Liability Rule”)
REQUISITES FOR PREVENTIVE SUSPENSION:
(a) Issues have already been joined;

Ang issue lang karun class naay expanded understanding or
(b) Evidence of guilt is strong;
application of Aguinaldo doctrine not by the SC but kana lng mga
(c) Given the gravity of the offense, respondent might
chika2 lang bah, ang principle of condonation historically applies to RE-
influence witnesses or pose a threat to records/evidence
ELECTION. Meaning, let’s say you are serving your term 2013–2016
(Sec. 63; Jason III vs. CA, 2006)
as governor, and during your incumbency you committed misconduct
kay end na mana sa imung 3 consecutive term, ni dagan ka pgka
congressman can you be sued for the misconduct that you committed
What I would like you to remember is that, may requisite sad diay for
during the term that you are the governor at the time that you are a
preventive suspension, of course hearing is not a requirement because
congressman? Matay pangutan.a nang uban diba mu ana gyud na
it is not a penalty as you know it is just a preventive suspension, unlike
Aguinaldo doctrine, ang Aguinaldo doctrine is not original as I’ve said,
labor law that after giving show cost memo, preventive suspension
the original principle is principle of condonation.
dayun.
Aguinaldo doctrine is not original. The original doctrine is the principle

First it is required that Issues have already been joined,, which means
of condonation. In the US, it is applied in reelection. Here in Phils, we
that? What do you mean by issues have already been joined? That
used the term Aguinaldo doctrine but I think the better term is
presupposes that.. What is an issue?
principle of condonation. If there is no reelection, I respectfully submit
that there is no application of principle of condonation. What is the
An issue is that allegation of the plaintiff or the complainant have
difference if there is any?
been specifically denied by the defendant or respondent, mao na ang
technical meaning ug ng make ka ug issue ug wla pa na gi deny, wala
- You are elected as local city executive and then you became
pay issue, issues have not been joined yet until and unless allegations
a law maker
are denied, what does it mean? Kanus.a man d i deny ang allegation?
- Possibly lain lain ni sila ug mga voters. You cannot say for
Filing of an answer or any responsive pleading.
example (refers to gwen) ang nag reelect ra nya kana ra The process will be: first, petition by a registered voter. Isa lang para
ang 3rd district whereas if ni dagan pa siya ug governor, the lang pag trigger ug process sa petition for recall didto sa Comelec.
principle of condonation would require the entire province. Under the new law, it shall be commenced by a petition by a
So hain mn na mo apply? It is very hard. Maayo lang if registered voter in the LGU concerned and then supported by the
province unya isa ra ka district diba ky dili na mo matter. registered voters in the LGU concerned during the election in which
Kung governor ka the same constituents pag dagan nimo ug the local official sought to be recalled was elected.
congressman and ni daug ka the same constituents ky isa
raka province isa ra sad ka district pero if ingon ana na nga Dili pwede nga ang basihan sa registration ang percentage which
dghan ug district imo gyd e.apply ang principle of would be the percentage of voters at the time a petition for recall was
condonation? Ang minority nga condonation mo apply sa filed but at the time the election was conducted. Basin mag overlap
majority? Hard to tell. Curious ko na e.clarify na sa court if ang registration, what if nay magconduct nga barangay. It’s possible
ever there will be an issue on that matter. that there will be different voters. Basihan sa percentage would be the
registered voters in which the local official sought to be recalled was
Three fold liability rule is important principle. Discussed already… elected and of course with the required percentage.
RECALL
Removal of a local government official during his term on PROHIBITIONS IN RECALL PROCEEDINGS (important)
the ground only of loss of trust and confidence and the issue of loss of
trust and confidence is resolved via recall of election. Prohibitions in Recall Proceedings:
2011 Bar  No resignation during recall process;

 Recall election should only be once during the term of the
Anton was the duly elected Mayor of Tunawi in the local elections of official. (note of “election”, not “proceeding”)
2004. He got 51% of all the votes cast. Fourteen months later,  No recall (election) shall take place within one (1) year
Victoria, who also ran for mayor, filed with the Local Election Registrar, from date of official’s assumption to office or one (1)
a petition for recall against Anton. The COMELEC approved the petition year immediately preceding a regular election (day of
and set a date for its signing by other qualified voters in order to election and that election affecting the office of the
garner at least 25% of the total registered voters or total number of official concerned).
those who actually voted during the local election in 2005, whichever
is lower. Anton attacked the COMELEC resolution for being invalid. Do
you agree with Anton? 1. The Local Government officials subject for recall is not
allowed to resign. In fact, automatic candidate siya.
2. In the recall election, it will be conducted only once during
[Transcribers note: I think ang pasabot nya sa 2005 katong barangay the term of the official.
election. (sir is not sure if there had been election in 2005) if there is 3. No recall election in the first year and in the last year, so
an election sa 2004 the only election possible is for the barangay ra middle term ra pwede. But what is prohibited is the conduct
jd…] of the recall not the election. But pwede ka mag initiate
earlier, dili magkinahanglan nga pag initiate nimo middle
ANS: It only involves procedure for the recall. There is an amendment gyud. Ang kinahanglan ana ehold lang kay recall elections
in the recall provision section 70 and 71 Chapter 5 Title 1 Book 1 of shall take place in the middle term.
the code had been amended by RA9244. So preparatory recall
assembly in the past is no longer visible. Sauna preparatory assembly PRACTICE OF PROFESSION
man, mao btaw na usahay mga materials na gamit nnyo and notes still
talks about preparatory recall assembly. However, wala na na siya rn. Question
Sauna 2 modes of inititiating recall registerd voters and preparatory
recall assembly. Wala ng preparatory recall assembly, only registered Who among the following local elective officials can practice his
voters nlng. profession?
What is the procedure? (provided in the codal RA 9244) A. Mayor X, who is a doctor
B. Vice-Mayor Y, who is an Engineer
The rule now is to file a petition. That is why dili ni midala ug wido C. Councilor Z, who is a lawyer
wido. Not the same as filing petition for people’s initiative. It has its
own procedure provided in the RA 9244.
ANS:
Basic Procedure
A mayor is absolutely barred to practice his profession during his
The Recall of any elective provincial, city, municipal or barangay incumbency. This includes two: any profession or occupation. That
official shall now be commenced by a petition of a registered includes radio announcers. Mayor X, who is a doctor cannot practice
voter in the local government unit concerned and supported by the his profession with the exemption of course in emergency situations
registered voters in the local government unit concerned during the where the mayor doctor is not receiving compensation.
election in which the local official sought to be recalled was elected
subject to certain percentage requirements.
Practice of Profession But of the many definitions given by authors, the one that is usually
used in defining public international law is that found in the
 All LCE’s cannot practice profession nor engage in any Restatement [Third] of the Law by the American Law Institute of
occupation other than the exercise of their functions as Foreign Relations Law of the United States.
LCE’s.
 SP Member can practice profession or engage in any That therefore brings me to my next point. The concept of SUBJECT.
occupation except during session hours, with certain
limitations to lawyers on grounds of conflict of interests. “Subjects” of International Law
 MDs may practice profession even during officer hours in
case of emergency w/o comp.  Subjects: those that enjoy international legal
personality and being capable of possessing
international rights and duties, including the right to
Doctors of medicine can practice his profession during emergency bring international claims.
situations but without compensation.  Primarily: STATES
 Secondarily: International Organizations (e.g. UN, WTO),
Sangguniang Panlungson/Panlalawigan: They can practice their individuals (protected persons of IHL, insurgents and
profession or occupation except during session hour. Councilors can national liberation movements, minorities), juridical persons
practice their profession/occupation but outside session hour. (multinational companies), and NGO’s (e.g. ICRC,
Greenpeace, Amnesty Int’l)
 Case: -Reparation for Injuries Case (ICJ Advisory Opinion
1949)
[END OF LOCAL GOVERNMENT LAW]
Subjects are those that possess international legal personality capable

of possessing international rights and duties and will have the capacity
to bring international claims. I said already that the states are the
PUBLIC INTERNATIONAL LAW primary subjects of international law but modern international law
would include all other. But for some we don’t put in the same level
other international persons with states. But the better approach is that
{PRE-MOCK BAR, September 5, 2014} all of these are subjects of international law. We can refer to states as
primary subjects of international law; and all others if they have
So first, I don’t know if it will be asked in your [mock] bar but I think international personality as secondary subjects of international law. I’m
it’s good to begin with the definition of Public International Law kay talking about international organizations, like the UN.
lisod man sad ug “What is public international law?” unya muingon ra
sad ka ug “…the law of nations.” Because in the past that really was In the Reparation for Damage case involving the death of the
the name given to the rule or norm regulating the conduct of States. negotiator of UN when he was killed in Israel. The UN filed a claim for
That’s why in the book of Hans Kelsen, when it was first used “inter- and in behalf of the Swedish negotiator. We will talk about this in
national law” ang pagka suwat ana niya indeed governing nations. But details after mock bar. Even individual are considered international
as you have already learned, the modern definition of public persons or rather subjects of international law. They are also entitled
international law would no longer focus on states. The importance of to some protections. And they are protected by the effects of war
this one is that while this is very elementary, please do not write under IHL.
state/states in your definition. But instead you write “international
persons”. As you know in the past states were the only considered Even the Philippines adheres to this. Even international financial
subjects of international law, no other. But modern PIL welcomes organizations are considered international persons. Look at this 2014
other international persons. Even individuals are considered possessing case. (Sir is not sure of the title---landbank of the Philippines case)
international legal personality under certain conditions as we will later Loan Agreement and International Bank for Reconstruction
on discuss. and Development (IBRD), that’s the name of the bank, SC here
class said that even IBRD is an international person.
Definitions of “Public International Law”
Loan Agreement and International Bank for Reconstruction
Brierly: “the body of rules and principles of action which are binding and Development (IBRD), an Executive Agreement
upon civilized states in their relations with one another.”
Loan Agreement No. 4833-PH is in the nature of an executive
Hackworth: “it is that branch of public law which regulates the agreement. In Bayan Muna vs. Romulo, the Court defined an
relations of states and other entities which have been granted an international agreement as one concluded between states in written
international personality.” form and governed by international law, “whether embodied in a single
instrument or in two or more related instruments and whatever its
Section 101, Restatement [Third] of the Law by the American Law particular designation,” and further expounded that it may be in the
Institute of Foreign Relations Law of the United States: “rules and form of either (a) treaties that require legislative concurrence after
principles of general application dealing with the conduct of executive ratification; or (b) executive agreements that are
states and of international organizations and with their similar to treaties, except that they do not require legislative
relations inter se, as well as with some of their relations with concurrence and are usually less formal and deal with a
persons, whether natural or juridical.” narrower range of subject matters than treaties.
teachings of most highly qualified publicists. If you will use the
teachings you must make sure it must be complete. This was applied
The reason SC said that the Philippines should comply with the terms in 1 case decided by the Supreme Court. You cannot just make use of
and conditions of this executive agreement is because of the principle opinions of a supposed authority if he cannot be considered as most
of pacta sunt servada. The nature of this executive agreement, even if highly qualified publicists.
without the concurrence of senate, still it has the character of an
international agreement. So ana ang SC ang international agreement is So kung highly qualified publicist lang, it is not an instructive opinion.
considered a treaty and kanang treaty class, by definition, can be It should be most highly qualified publicists.
entered into by states. So you know that, technical nana ang treaty.
You cannot use treaty if it does not involve states. Although there is a
contention that treaty can be entered into by states and other
international persons. But under the definition of Vienna Convention of International Conventions/Treaties
the Law of the Treaty, a treaty can only be entered into by states.  Whether general or particular and establishing rules
expressly recognized by the contesting States;
So ingun and SC sa case, the IBRD possess an international  The term “convention” includes (and actually means)
personality. So that is an affirmation that dli ra jud states ang “treaty”
international persons. Because you cannot apply the principle of pacta  Other terms: agreement, pact, understanding, protocol,
sunt servanda if this agreement by the Philippine through Landbank is charter, statute, act, covenant, declaration, engagement,
with a non international person. arrangement, accord, regulation and provision.
 “Law-making treaties” vs. “contract treaties”
Ang gilalisan man gud ani class kung unsa man ang mo govern ang
procurement act sa Philippines or the guidelines set by IBRD for the
implementation of a project. Ingun ang SC, procurement act set aside INTERNATIONAL CONVENTIONS
sa ka kay this is an international agreement. So it should be governed
by international law. This includes treaties. So the term international convention is generic
and there are other terms covered by convention, this includes
(question from student: if FIBA is international organization   --- sir agreement, pact, understanding, protocol and charter.
said: I don’t think that this has something to do with international law
kay not an organization of states but sports organization only. But im These names arise because the manner of creating the conventions
not sure, pwede akong tun.an? its sports man gud, nothing political, I vary. Usually the convention, tawagon na siya ug convention if it is
don’t know studihan sa nko. ) initiated by the UN. Either directly by the general assembly, like the
CAT or convention against torture. This is a convention of course but
directly passed by the general assembly of the UN. It is also possible
that the UN will initiate but it will be signed somewhere else or it will
SOURCES (Formal or Legal) of PIL be agreed upon or formalize somewhere else like in Hague or in
Geneva but this is initiated by UN that is why nagcarry gihapon siya sa
Art. 38 (1), Statute of ICJ: name nga convention.
Primary:
(a) International conventions Some authors say, with regard to the law on treaty, that the treaty
(b) International custom perceive in the 1969 Vienna Convention on the law of treaties should
(c) General principles of law only cover law-making treaties. So kanang gitawag ug contract
Subsidiary: treaties, meaning not involving polictical, governmental, economic and
(d) Judicial decisions and teachings of most highly qualified other substantial terms and conditions but mostly or probably on
publicists business dli daw ni govern by the Vienna convention on the law of
treaties. It should be govern by private international law on contracts.
So we have law on private international law and we should just
We call this as sources of international law, but sources can be viewed consider this as an ordinary contract. But this is just more on a
as formal or legal. normative approach than explaining on what really is the rule on the
matter.
When we say formal source meaning how the international law came
about or how did it exist. When we say legal source meaning where Now in our case, wala ta nagdeal anang rule making ba or contract
did you get it? treaties. To simplify we don’t distinguish that. In the US apart from
distinguishing law making and contract treaties nag distinguish pud na
So muingon ka ug this problem should be resolve on the basis of the sila ug executing and non-executing treaties but in the Philippines we
general principle of good faith. So unsa source ana niya? Is it a source don’t.
of public international law? So if you say source, are you referring to
where the principle had its origin? So the answer would be, general
principles of law as practice by most civilize nations.
So if you say formal or how it came about, usually that is applicable in

the case of customary international law because they are in fact to be
form. So there is a process except to the extent probably according to
authors that there can be an instant customary international law.
In the absence of the primary sources, we have judicial decisions and
Custom What were the pieces of evidence constituting state practice in this
 Art. 38(1), ICJ Statute: “As evidence of a general case? In other words, the SC looked into whether this was practiced
practice accepted as law”; among members of the family of nations. (see slide below)
 Sec. 102, Restatement (Third): “Customary international By the way, there is no requirement of unanimity. It is not required
law results from a general and consistent practice of that all states practice. All that is needed is “general” practice.
states followed by them from a sense of legal
obligation.” Take note however that Customary International Law also can be
regional or international. So there is such thing as regional customary
 Two elements: international law. Because of the variations in cultures and practices,
(a) Objective Element [general practice] Regional CIL will have to arise. The threshold now for Regional
(b) Subjective Element [opinio juris] Customary International Law will be higher as compared to
International CIL.
Let’s talk about Customary International Law or CIL. This is how it was The SC said:
worded in the statute:
Some evidence of “state practice” in Paquete Habana case:
International custom “as evidence of a general practice accepted as
law”. As base on the definition there are therefore elements. The  In 1403 and 1406, Henry IV of England issued orders
objective element, general practice, and the subjective element, opinio protecting fishermen of foreign states;
juris.  1521 Treaty between Emperor Charles V and Francis I of
France;
So apart from the ICJ Statute on Customary International Law, we can  1536 Dutch edicts (orders) which permitted herring fishing in
also make use of the Restatement of Foreign Relations Law by the time of war;
United States. (as above)  During the American war, Louis XVI of France addressed a
letter to his admiral exempting fishermen from capture;
Q: How do we know the presence or absence of general practice or  1785 Treaty between the US and Prussia calling for the
the objective element? The same question applies to the subjective protection of fishermen in time of war;
element.  184x Treaty between the US and Mexico incorporating the
xxx xxx 1785 US-Prussia Treaty
A: The way to understand that is to go back to the cases. The leading
case on this matter is the Paquete Habana case. The US and Spain
had war at that time. Some fishing vessels of Spain were captured by The above are examples of a general practice of states. Later on, you
the US armed forces. These were claimed to be prize of war and will also learn that there is a corollary requirement to the practice of
therefore, they could validly take custody of the fishing vessels. There states: the general practice must be a practice performed by affected
was an argument that you cannot consider fishing vessels (merchant, states. That is called “relevant state practice”. The practices of states
commercial vessels) as prize of war. Only the vessels used during war not involved in fishing are not (as) relevant. But the states who are
may be considered prize of war. The fishing vessels, because these are heavily involved in fishing and involved in war, those states’ practice
commercial, cannot be considered legitimate prize of war. The US did are the relevant state practice(s).
not subscribe to this argument saying there is no Customary
International Law that says that one of the limitations of a prize of war That is important because we said “general practice”. Unanimity is not
is when the object has nothing to do with war, like in the case of required. What is required is “relevant state practice.”
fishing vessels for commercial purposes.
Another case that illustrated the concept of state practice is
The Paquete Habana Case Nicaragua vs. USA.
175 U.S. 677 (1900)
If you read CIL, this case has an extensive discussion of the topic.
Facts: Fishing vessels of Spain were captured by US Armed Forces as
prize of war. It was established that the vessels were not aware of the Nicaragua vs. USA, ICJ Report (1986)
existing war between Spain and the U.S.
Facts: Following the overthrow of the right wing government in
Held: It is customary international law that coast fishing vessels, Nicaragua in 1979, the US in 1981 ceased economic aid on the ground
pursuing their vocation of catching and bringing in fresh fish, are that the left wing Sandinista government in Nicaragua had aided the
exempt, with their cargoes and crews, from capture as prize of war. guerillas fighting against the El Salvador government with which the
This the U.S. has also recognized as law as shown in the various US enjoyed good relations. Nicaragua complained of violations of
treaties it had entered into in the past. customary international law when the US used armed force against it
and when it provided assistance to Nicaraguan guerillas (the Contras)
Q: how did the xxx xxxx state practice of this norm? who had been fighting to overthrow the Sandinista government. The
US denied ICJ jurisdiction on the basis of a reservation it made to the
jurisdiction of the ICJ in matters that involve multilateral treaty.
The Supreme Court of the US itself said this is customary international Nicaragua argued that customary international law had xxxxxx xxxxx
law, and even the US acknowledged that this is a customary xxxxnded by the UN Charter.
international law.
Nicaragua supported some rebels fighting against El Salvador and El Nicaragua vs. USA, ICJ Report (1986)
Salvador was an ally of the US. US attacked Nicaragua. Nicaragua said
there was violation on the part of the US of the CIL prohibiting the use Customary International Law norms involved: [1994 Bar]
of force, as well as a violation of the CIL of non-intervention. US said
those are no longer CIL because they were already incorporated in the  Principle of Non-intervention. [The US trained, armed,
UN Charter. The US had a reservation when it comes to application of equipped, and financed the Contras]
multi-lateral treaties. The moment there is a claim to apply a multi-  Prohibition against violation of Sovereignty of
lateral treaty against the US, the US made a reservation as to its being another State. [The US entered/laid mines in the territorial
subjected to the jurisdiction of the ICJ. and internal waters of Nicaragua]
 Prohibition against use of force against another
But ICJ said that whether or not codified in the UN Charter – the State. (Art. 2(4) UN Charter) [The US attacked ground and
principle against the use of force and principle on non-intervention – naval forces of Nicaragua] (2009 Bar)
they did not lose their character as Customary International Law.  Right to self-defense (Art. 51 UN Charter) requires
Customary International therefore can co-exist with a treaty or armed attack against the invoking State. [That
convention. Nicaragua armed the rebels in El Salvador did not
necessarily constitute armed xxxxxx El Salvador] {2009 Bar}
As we study treaty later on, you will learn there are 2 kinds of treaty
in relation to customary international law. A treaty may be
considered as a clarification or simply a manifestation of what already The Principle of Non-intervention. [it was violated by the US
existing international law. If you apply Nicaragua vs. US, that should when, the US trained, armed, equipped, and financed the Contras, the
not have the effect of diminishing the status of the norm as customary rebels in Nicaragua. ]
international law if it is codified in a treaty. If that is the case, ang
non-party to the treaty, kng tang-tangon na nimu ang customary Prohibition against violation of Sovereignty of another State.
international law, dna cya ma govern sa customary international law, [when the US entered/laid mines in the territorial and internal waters
that make sense. of Nicaragua, didtu sa lawum]
A treaty or convention may (1) just be a manifestation or a Prohibition against use of force against another State. (Art.
clarification of already existing customary international law or (2) it is 2(4) UN Charter) [It was observed, the US attacked ground and naval
an evidence of a progressive development of new customary forces of Nicaragua] (nigawas 2009 Bar, I don’t remember if it was a
international law. problem or probably, it was a problem)
Possible man sd class nga dunay existing customary international law Kining Nicaragus vs. US is an important case to read when it comes to
before, and then the family of nations or states realized, there is need sources of international law.
to adapt to changing circumstances and therefore to develop a new
norm, to replace an old one. How is it done? By putting in a Another principle of law, the Right to self-defense (in Art. 51 UN
convention or a treaty that desired norm and that shall be considered Charter) requires armed attack against the invoking State.
as an evidence or a progressive development of a new customary [requires armed attack against the invoking state. Because the US
international law. Therefore a treaty or a convention can actually said, there was an attack on an ally of the US, El Salvador. And El
override an existing customary international law, because a treaty or Salvador and the US had a treaty of a cooperation and mutual defense
convention can be an evidence of a new customary international law. and therefore an attack to an ally is an attack to the US. But ingon ang
ICJ, ‘No, if you’re invoking self – defense, the attack must be directed
Under the perspective that a treaty can be a progressive development against you. }
of international law, the only customary international law that the
treaty cannot of course violatate is a customary international law that
has already achieve a status of a jus cogens norms ( a peremptory
norm where no derogation is allowed). But if ordinary customary Nicaragua vs. USA, ICJ Report (1986)
law lng, any convention can replace that. So a treaty can be a
progressive development of a customary international law either Key Principles:
expression, manifestation, clarification or progressive development of 1. General customary international law must be determined by
customary international law. the general practice of the states and not just by the
states party to the dispute before the ICJ. Opinio juris
So we go back to Nicaragua vs. US, these were the customary may be deduced from the attitude of the Parties concerned
international law norms involved, I wrote here, this was asked in 1994 and that of states to certain General Assembly Resolutions.
BAR, I just couldn’t remember now, how it was asked exactly. I don’t 2. The prohibition on the use of force is jus cogens.
remember if all of these principles were asked and how it was asked 3. Principle of “non-intervention” is customary international
but this slide has something to do with that 1994 BAR. So this case of law and, therefore, not affected by treaty stipulation.
Nicaragua vs. US involved 4 customary international law: 4. Customary international law can exist alongside treaties.
The third one is General Principles of Law. Actually ang gihimu nila
ani class, they expected, that some controversies or problems could
not be covered by Customary International Law and Convention. So
the way to fill the gap is to come up with the third source of public
international law that is general principle of Law. And general
principles of law are actually principles of law already practiced governmental agencies. Tan.awon na sa ICJ, beh kung ang Philippines
domestically. So these are principles of law practiced domestically but naa bai opinio juris on that particular practice, check nato, naay
they can be transported at the international level to solve a particular Supreme Court decisions ba nga nag uphold ani, about sa mga
problem. writings sa executive officials, official pronouncements, verbal or
written, statute, kung naay statute gi pass ana nga customary law, so
General Principles of Law we believe the obligatory nature of that norm, so that is evidence na
of opinio juris. So all of this will be taken together just to established
 Recognized by civilized (peace-loving) nations; whether or not a particular state is bound by the norm.
 Aimed at providing solutions to controversies where treaty
law or customary law provides no guidance; On the other hand, we cannot make treaty or convention as more
 “Law” refers to both “international law” and “municipal persuasive or authoritative over customary international law because
law” (common municipal law) treaty and conventions are valid and binding in so far as the parties to
 Examples: estoppel, good faith, exhaustion of local the treaties or conventions are concerned whereas kuno ang
remedies, prescription, etc. customary international law naa na ang objective element of general
 See: -South-West Africa Case (2nd Phase, ICJ Report, 1966; state practice. Tinuod man ky convention or treaty is international law
-Barcelona Traction Case (Belgium vs. Spain, 2nd Phase, only in so far as the parties are concerned, that we are talking of a
ICJ Report, 1970) treaty or convention that is not a customary international law at the
same time. Ug mo ingon ka, what is the source of international law,
mot bag ka treaty or convention, that is true only in so far as the
So these are usually practiced by States at the domestic level. Of parties are concerned. So between state A and state B, ni execute sila
course, there may be principles at the international level for those ug treaty, that treaty is international law between state A and state B.
principles that are not definitely customary international law. Problema So ang iyang scope therefore is not that all-encompassing compared to
lng ky wlay book nag enumerate jd categorize kng ang principle of customary international law nga mo require ug general state practice.
international law belongs to customary international law or just a
general principle of law. That is the reason why in our constitution, we Tungod sa debate class nga wa sila mgka uyon, they decided nga wa
don’t use either customary international law or general principle of law nalang ang hierarchy. All of them shall be considered as primary with
or simply international law. Unsa atu gigamit? Generally Accepted no specific source of law as having more persuasive effect than the
Principles of International Law to cover all possible norms of others except to the extent the customary international law may be jus
international law, either customary, general principle or even cogens.
convention.
Art. 38 (2), ICJ Statute
 Naa pa diay question: is there a hierarchy among the (Ex aequo et bono)
sources of international law?
Ex aequo et bono: a decision in which equity overrides all other
Naay primary, naay subsidiary, no dispute about it. But among the first rules
three ba nga primary, mai hierarchy ba ni sila…nga dapat, convention,
customary international law, unya ug wala, general principle of law? Art. 38(2), ICJ Statute:
The list of sources in Art. 38(1) “shall not prejudice the power
The preparatory works, did not show evidence of treating this of the Court to decide a case ex aequo et bono, if the parties agree
hierarchical, walai hierarchy. Although nag dugay sila ug debate ani thereto”
class kung dapat hierarchical ba or dili. They ended up nga ayaw
nalang, butangi nalang ug primary ug secondary because of so many
theories against treating the first three in a hierarchical order. First The list of sources in 38 (1) kadtong gi discuss ka ganiha shall not
argument was, dapat mai priority or authoritative ang treaty or prejudice however the ICJ to decide a case on the basis of other rules
convention over customary international law. Why? Because there is a such as equity, not on the basis of international law but simply on the
theory that kana gud convention or treaty, evident, visible, tangible, rule of equity or that probably the parties agreed that instead of
observable ang intent sa parties. So the intent to be bound by the applying the treaty between them, mangita nalang sila ug laing norm if
terms and conditions, express. all the parties agreed that should be the case. So, it’s possible
therefore to disregard specific rules applicable to parties to a case in
Unlike in customary international law that you will rely on inferences ICJ if they agree and the ICJ will be allowed to apply rules of equity
and is in fact open to persistent objector doctrine. A state cannot be other than the rules found in the treaty.
bound by your customary international law if at the outset before the
formation of the customary international law, the state concern had
already categorically manifested an objection to the application of the
norm to its territory. If you say at the outset, meaning to say before it What’s the difference between a custom and a usage? Bar exam
became a customary international law, consistent ang objection sa question also.
state not to be bound by the norm. Exception of course is jus cogens,
applicable to all, no exception. That is the problem of customary Custom vs. Usage
international law. Evidence ba na ang intent to be bound when we
resort to inferences, nganu mo resort man ta ug inference? State Custom is a practice that states believe themselves to be under a
practice requirement, objective element. Subjective element pa gyud, legal obligation to follow (opinio juris) [ex. State immunity]
opinio juris. Mai acts done by that state showing that it intended to be
bound by the norm, in opinio juris there is the understanding that the Usage is a practice that states generally follow without believing
law is viewed as obligatory and usually this is found by acts of our themselves legally bound to do so. [ex. alternat]
Philippine Practice on Sources of International Law
Of course custom, customary international law. Elements of state Sec. 2, Art. 11 (1987 Constitution):
practice and opinio juris are present but where a practice has not yet “The Philippines renounces war as an instrument of
attained the status of customary international law but it is a state national policy, adopts the generally accepted principle of international
practice just the same or even probably general state practice but law as part of the law of the land and adheres to the policy of peace,
usually what’s lacking is opinio juris, so the objective element of equality, justice, freedom, cooperation, and amity with all nations.”
general state practice is present but the subjective element of opinion
juris is absent, usually we call it mere usage, not customary
international law. Sec. 2 Art. II we call this the Incorporation Clause but remember that
does not mean that the Philippines is not adopting Transformation. In
Typical example of customary international law is the Principle of State fact, we both adopt transformation and incorporation.
Immunity. We adopt incorporation clause for Generally Accepted Principles of
International Law (GAPIL). We adopt transformation through the
A good example of usage is alternat. Practiced generally in diplomatic backdoor system through the execution of treaties because treaties are
relationship but there is no perception of it as binding or obligatory. sources of international law. GAPIL, automatically incorporated
This is just a manifestation of the co-equality idea of states. When through incorporation clause but treaties, assuming that they do not
you sign a treaty, for example there are 50 states to a multi-lateral represent Customary Internationnal Law (CIL), treaties that govern the
treaty or convention, how do you put the names? Alphabetical? So, in Philippines and the other signatory to that treaty, the provisions of that
the convention, mag-una og pirma Afghanistan nya uwahi ang become part of the law of the land the moment it is concurred by the
Zimbabwe? Senate. That is transformation.
It looks like it suggests that since Afghanistan is first in the list, it

Ocampo vs. Abando Feb. 11, 2014
would seem that it is superior than other states, so the way to solve
that problem is that all the parties will bring with them a copy of the
Members of the CPP-NPA NDF were prosecuted for murder because
convention back home because usually it is not the Head of State who
they have this Purging System wherein members and non-members
signs or even if it is the head of state who signs, when they return to
alike who are military informants were salvaged. A mass grave was
their home state, there is still a constitutional process of concurrence,
found and somebody testified that it was where the CPP-NPA would
like the Philippines and the United States. How much more if it is not
bury the bodies of those who were salvaged. The relatives testified
the Head of State who signs but only the authorized representative like
that the persons who disappeared were abducted by members of the
the Secretary of the Department of Foreign Affairs, what should be
NPA prior to their disappearance. Satur Ocampo was charged along
done next here in the Philippines? There should be ratification by the
with 40 or 50 others. Their defense was that they cannot be charged
President. It became a practice in order to make sure that this is
of murder because of the Political Offense Doctrine (POD) which
really what was agreed upon and that the authority to sign is within
absorbs any common crime (murder in this case) committed in the
the scope of authority given, so the President will look into that. So it
pursuit of a political crime like rebellion thus the proper charge would
may happen that it is signed by the representative but if not ratified,
only be rebellion.
you have nothing to submit to the Senate for concurrence, it has to be
ratified first by the President.
SC: The fiscal has no duty to follow the Political Offense Doctrine - that
the crime to be charged must be rebellion. So at the level of the
So, don’t use the term ratification by the Senate, that’s wrong. The
prosecutor, during the preliminary investigation, the issue on WON
correct term should be concurrence by the Senate; ratification by the
POD will apply will not yet be settled because it will require evidentiary
President in a situation where it is signed by a representative.
facts and would consequently require a hearing. The proper course of
action on the part of the fiscal is to charge them with murder and the
So in alternat, what happens is that the copy brought by the
defense of POD will only be raised during the trial.
representative which will be ratified by the President, the first to sign is
his state. So, the copy brought back to the Philippines by the
Sometime in 1995 or 1998, the CPP-NPA made a statement that in the
representative, which is ratified by the President, the ‘#1’ who signs in
Philippines it will abide by the Common Article III of the 4 Geneva
that copy is the Philippines. In the same manner that the copy
Conventions. This article is applicable to non-international armed
brought to US by their representative, the #1 who signs in that copy is
conflicts and embodied therein are the prohibitions agianst torture and
also US. So, there is co-equality among states. There is no superiority
the non-derogable right to life.
or inferiority in paper. That’s the idea of alternat.
After which, it will be deposited with the Secretary-General of the UN, Associate Justice Leonen:
because if not, the parties who did not deposit the treaty cannot The Philippines is bound to punish the perpetrators if it will be proven
invoke the provisions of the treaty to resolve the conflict. that this is a violation of International Humanitarian Law (IHL). It is
not a sound policy to immediately, at the level of the prosecutor, apply
Alternat is just a usage, not a custom. the POD because of the duty of the Philippines to enforce IHL.
The Philippines is bound to enforce International similar to treaty and the distinction basically is at the domestic level
Humanitarian Law (IHL) because we distinguish executive agreement and a treaty in our
Constitution insofar as the requirement of concurrence by the Senate
IHL and the rules and principles contained in the Geneva is concerned. So that’s the only difference apart from probably nature.
Conventions are largely regarded in the international sphere as having Because if you look at the definition of a treaty under the Vienna
the character of general or customary international law given the Convention on the Law of Treaties (VCLT) -
fundamental nature of the rules and “because they constitute
intransgressible principles of international customary law.” But, China National Machinery & Equipment Corp. (CNMEG) is
not an international person
In the Philippines, Republic Act No. 9851 was enacted in view
of its policy to “[renounce] war …, [adopt] the generally accepted Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna
principles of international law as part of the law of the land and Convention) defines a treaty follows:
[adhere] to a policy of peace, equality, justice, freedom, cooperation
and amity with all nations.” [A]n international agreement concluded between States in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
{September 6, 2014} particular designation.
The case of Land Bank of the Philippines vs Atlanta Industries, July 2,

2014; this is one case that you have to read very quickly before mock So what I’m saying is at the international level, we treat all these
bar in relation to a case decided by the Court 2 years earlier, China international agreements similarly, but we treat these documents
National Machinery and Equipment Corporation vs. Santamaria, differently at the local level.
February 7, 2012. Now why is this important? Two years earlier in this
case of China National Machinery and Equipment Corporation, the But what confused me is the pronouncement of the court in this Land
Supreme Court distinguished between executive agreement and treaty. Bank of the Phil. v. Atlanta Industries, Inc. because here the parties
But after making a distinction, of course the distinction being that in involved are not states. One of course is the Republic of the Philippines
the case of executive agreement as you already know, it (a) does not but the other one is an international multinational corporation, lending
require legislative concurrence; (b) is usually less formal; and (c) it is institution rather, although organized by World governments. And this
narrower in scope compared to a treaty. And of course a treaty is was the thing that we discussed yesterday that it was again likened to
more or less permanent compared to an executive agreement. a treaty only because IBRD was considered as possessing international
personality and the effect of the characterization is that your basin
Executive Agreement vs. Treaty principle of pacta sunt servanda was applied here in this case.
An executive agreement is similar to a treaty, except that the former Examining its features, Loan Agreement No. 4833-PH between the
(a) does not require legislative concurrence; (b) is usually less IBRD and the Land Bank is an integral component of the Guarantee
formal; and (c) deals with a narrower range of subject Agreement executed by the Government of the Philippines as a
matters. subject of international law possessed of a treaty-making capacity, and
Depsite these differences, to be considered an executive agreement, the IBRD, which, as an international lending institution organized by
the following three requisites provided under the Vienna Convention world governments to provide loans conditioned upon the guarantee of
must nevertheless concure: (a) the agreement must be between repayment by the borrowing sovereign state, is likewise regarded a
states; (b) it must be written; and (c) it must be governed by subject of international law and possessed of the capacity to enter into
international law executive agreement with sovereign states. (Land Bank of the Phil. v.
Atlanta Industries, Inc., G.R. No. 193796, July 02, 2014)
[China National Machinery & Equipment Corp. v. Santamaria, G.R. No.
185572, February 07, 2012]
Another update is the case of Biraogo v. Del Rosario. As you know
Foreign Affairs is a prerogative of the Executive Department. And this
But after making that distinction, the Supreme Court enumerated 3 prerogative being discretionary cannot be compelled by mandamus.
elements for an executive agreement to exist. These elements are: (1) Here Biraogo etitioned the Court asking the Secretary of Department
that the executive agreement must be between states, (2) it must be of Foreign Affairs be compelled to pursue our claim over Sabah.
written, (3) it must be governed by international law. In doing so, it Supreme Court said its not subject of mandamus because it is not
would seem that the Supreme Court likened the executive agreement ministerial duty. The submission to the ICJ of the Philippine claim over
to a treaty. Ang distinction lang therefore is domestic. Whether or not Sabah involves conduct of our foreigh relations. This is primarily an
we require legislative concurrence. In other words at the international executive prerogative and therefore mandamus will not apply.
level, whether it is executive agreement, international agreement,
treaty, convention or whatever, the nomenclature as you have learned
already does not govern for as long as the elements are present
entered into by states in written form and to be governed by
international law the we say that that is a document that will be
governed by the Vienna Convention of the Law of Treaties or VCLT.
And our SC acknowledged that in this case of China National
Machinery & Equipment Corp vs Santamaria.
So there you go the statement of the court. An executive agreement is
The Executive Department cannot be compelled to make Kuroda vs. Jalandoni (83 Phil. 171)
international claim
In accordance with the generally accepted principles of
The Secretary of Foreign Affairs cannot be compelled by international law of the present , including the Hague Convention, the
mandamus to press the Philippine claim to North Borneo (Sabah) Geneva Convention and significant precedents of international
before the ICJ or such other fora authorized under international law. jurisprudence established by the United Nations, all those persons,
The submission to the ICJ of the Philippine claim over Sabah involves military or civilian, who have been guilty of planning, preparing, or
the conduct of our foreign relations. This is primarily an executive waging a war of aggression and of the commission of crimes and
prerogative, and the courts may not inquire into the wisdom or lack of offenses consequential and incidental thereto, in violation of the laws
it in the exercise thereof. [Biraogo v. Del Rosario, G.R. No. 206323, and customs of war, of humanity and civilization are held accountable
April 1x, 2013] therefor. In the promulgation and enforcement of Execution Order No.
68, the President of the Philippines has acted in conformity with the
generally accepted principles and policies of international law which
The case of Navia vs. Pardico involving Writ of Amparo, SC discussed are part of the our Constitution.
the concept of Writ of Amparo and the elements. SC traced the history
of our Writ of Amparo that it was basically taken from the International
Convention for the Protection of All persons from enforced The rules and regulations of the Hague and Geneva
disappearance. And the definition of enforced disappearance as it conventions form part of and are wholly based on the
appears in this convention: generally accepted principals of international law. In fact, these
rules and principles were accepted by the two belligerent nations, the
United State and Japan, who were signatories to the two Conventions.
Such rules and principles, therefore, form part of the law of our nation
Philippine Writ of Amparo on Enforced Disappearance is even if the Philippines was not a signatory to the conventions
based on international law embodying them, for our Constitution has been deliberately general
and extensive in its scope and is not confined to the recognition of
International Convention for the Protection of All Persons from rules and principle of international law as contained in treaties to
Enforced Disappearance’s definition of enforced disappearances: “the which our government may have been or shall be a signatory.
arrest, detention, abduction or any other form of deprivation of liberty
by agents of the State or by persons or groups of persons acting with
the authorization, support or acquiescence of the State, followed by a Now, we have the International Criminal Court, in the case of USA v.
refusal to acknowledge the deprivation of liberty or by concealment of Guinto, this is the case of your Doctrine of Restrictive Immunity. You
the fate or whereabouts of the disappeared person, which place such a distinguish Doctrine of Restrictive Immunity from your state immunity
person outside the protection of the law (Navia vs. Pardico, G.R. No. from suit. Your Doctrine of State Immunity provides that states are not
184467, June 19, 2012) always liable to all the consequences of their acts and we only make
them liable for acts that are proprietary. But for acts that are
governmental then a foreign state can invoke state immunity. So even
And when the SC enumerated the elements of the Writ of Amparo, it contracts in international law, you have to distinguish between jus
invoked the definition. The Writ of Amparo has also its international imperii and jus gestionis. Note that the principle of state immunity is
law origin. In this case the SC said it is not sufficient to allege mere customary international law. Know that the doctrine of state immunity
disappearance. There should likewise be an allegation of the is either an international concept or a domestic concept. It is an
participation by the state either by the authorizing, supporting or with international law concept if the situation calls for the exercise of
acquiescence the disappearance of a particular person. jurisdiction by a local court against a foreign state.
U.S.A. vs. Guinto (182 SCRA 645)
And of course our older cases, applying international law include The rule that a state may not be sued without its consent, now
Kuroda v. Jaladoni where the Philippines created military commission expressed in Article XVI, Section 3, of the 1987 Constitution, is one of
to prosecute certain military officers for war crimes during the WWII. the generally accepted principles of international law that we have
The authority of the military commission was questioned as without adopted as part of the law of our land under Article II, Section 2. Even
authority and basis because the Philippines. Was not a signatory to the without such affirmation, we would still be bound by the generally
Hague Convention. It was at that time the Hague Convention as the accepted principles of international law under the doctrine of
international document that recognized and defined war crimes. But as incorporation. Under this doctrine, as accepted by the majority of
you know, the ruling of the SC is since punishment of war crimes is states, such principles are deemed incorporated in the law of every
erga omnes, meaning duty towards international community, and war civilized state as a condition and consequence of its membership in the
crimes as a crime internationally is also jus cogens. So you know these society of nations. Upon its admission to such society, the state is
terms erga omnes and jus cogens. So regardless of the fact that we automatically obligated to comply with these principles in its relations
were not a signatory of The Hague Convention, since The Hague with other states.
Convention is a manifestation of a customary international law there
was no objection to the creation of a military commission.
In the case of the foreign state sought to be impleaded in the before COA, in CA 327 it was called Auditor General, in PD 1445 it is
local jurisdiction, the added inhibition is expressed in the now the Commission of Audit. So, just please take note of that.
maxim par in parem, non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A INTERNATIONAL LAW & MUNICIPAL LAW
contrary disposition would, in the language of a celebrated case,
"unduly vex the peace of nations.” International Law and Municipal Law
 Which law prevails in case of conflict?

So if X, a citizen of the Philippines, sues the USA in the Cebu City - Theories: Monism & Dualism
Court, that calls for the application of state immunity from suit in
international law. In which case we follow the Restrictive Theory of  How do rules of international law take effect in domestic
State Immunity from Suit. We distinguish between jus imperii and jus legal system?
gestionis So even if contracts are involved in the case, if the contract is - Theories: Incorporation & Transformation
carried out in its governmental capacity, in the USA in this example, (Strong and Weak)
Cebu City court will not exercise jurisdiction.
 What is the status of PIL in Philippine Legal System?
Jus imperii vs. Jus gestionis: There is no question that the - GAPIL
United States of America, like any other state, will be deemed to have - TBPIL
impliedly waived its non-suability if it has entered into a contract in its
proprietary or private capacity. It is only when the contract
involves its sovereign or governmental capacity that no such In case of conflict between an International Law and Municipal Law
waiver may be implied. This was our ruling in United States of which law prevails?
America v. Ruiz, where the transaction in question dealt with the
improvement of the wharves in the naval installation at Subic Bay. As This could be answered by applying the theory of Monism or Dualism.
this was a clearly governmental function, we held that the contract did
not operate to divest the United States of its sovereign immunity from Under the theory of Monism, there is only one legal system
suit in this world and that is natural law which means that if there is a
conflict between International Law (“IL”) and Municipal Law (“ML”)
then International Law prevails since International law is perceived
Invocation of state immunity from suit will have to prosper if it is under this theory as reflective of Universal Law on the basis of natural
governmental. But state immunity from suit in the domestic level is law. (Basically, this is influenced by the teachings of natural law
different because in the Philippines we allow suit against the state on theorist Hans Kelsen himself. international law is perceived by Hans
the basis of contracts. Our relevant law is Act No. 3083. So what I am Kelsen as reflective of universal law, the basis of natural law, then
saying is state immunity from suit is both an international law concept international law prevails. International law prevails for a monist.)
and a domestic concept. That in the international law level, we apply
Under the theory of Dualism, there are two sets of legal
the Doctrine of Restrictive Theory, at the domestic level, for contracts
systems in the world. One is IL and the other is ML and there is no
the Philippines government has already consented to be sued under
necessary connection between the two. So, if there is a conflict you
Act No. 3083. Let me show you the provision. So this is Act No. 3083
cannot say that IL prevails over ML or vice versa. IL or ML will prevail
and it says:
depending on the forum deciding the case. If the forum is in the
Caveat: international field it is expected that international law will prevail. On
the other hand, if the controversy is presented before a municipal
Act No. 3083: Subject to the provisions of this of this Act, the forum ML will prevail. But this is not an absolute rule because even a
Government of the Philippine Islands hereby consents, and submits to domestic court may uphold international law. It is just a matter of
be sued upon any moneyed claim involving liability arising from expectation. There is no duty on the part of any domestic court to be
contract, expressed or implied, which could serve as basis of civil domestic also on its approach.
action between private parties.
How do rules of international law take effect in domestic legal system?
C.A. No. 327 and PD 1445: File claim with COA, if denied, go to SC on
By incorporation which is influenced by monism, principles of
Certiorari.
IL become part of the law of the land automatically. The Philippines
adopts this doctrine as can be gleaned from Section 2, Art. II of the
Constitution.
So this is the basis for the precept that when the government enters
into a contract, we have to specify. So if the Philippine government
By Transformation which is a process by which IL becomes
enters into a contract, then it has descended to the level of individual
part of domestic law by an affirmative act of the government either at
when it said “as basis of civil action between private parties.”
the level of the legislature (passage of a law), executive (conscious
application by the executive department of IL) or judiciary (SC
Now how to effect the claim. CA 327 provides for the period of 2
applying IL principles in a particular controversy). There are two kinds
months on the part of the Commission on Audit (COA) to decide
of transformations. One is Strong transformation while the other is
whether to accept or reject a claim on the basis of a contract against
Weak transformation. The former is restrictive while the latter is
the Philippine government.
not. The former requires a process that IL becomes part of the law of
the land only by Congressional Act. While the latter allows
PD 1445 is an amendment to the CA 327 such that where the claim is
transformation of IL law into domestic law by a governmental act other
rejected, the claimant can go to the SC on certiorari after that claim
than Congressional Act thus it is weak.
In the Philippines, we can say that we can transform IL on Is there such a right to secede? If yes, under what condition? Can
the basis of either congressional, executive or even Supreme Court secession be done unilaterally? It’s a continuing issue in international
decisions. So that is weak transformation. In England it is strong law. But we have a Supreme Court decision, not an international court
transformation. decision, that’s considered by many authorities as instructive on the
issue of unilateral secession. And I’m talking about the decision of the
What is the status of PIL in Philippine Legal System? Supreme Court of Canada on the issue of Quebec. Quebec exercised
unilateral secession, the SC of Canada made an instructive outline as
Insofar as GAPIL is concerned, we adopt the doctrine of incorporation. to when unilateral secession may be made.
As to treaty based public international law we apply the The problem with unilateral secession is this: It seems like there is a
doctrine of transformation. This is done by a treaty being concurred in conflict between the right to secede, and the right of the state to its
by the Senate. Thus, it is a process through Congressional act. In our territorial integrity. So the better formula according to SC of Canada,
jurisdiction, treaty has the same effect of a Statute. Consequently, we the rule is territorial integrity. A group of person may only separate if it
apply our rules on statutory construction in case of conflict between a is one via constitutional proceess. That’s the general rule. So if one
treaty and a statute. However, our domestic statutes will prevail over a group wants to separate from the rest of the territory, it has to be
treaty when our statutes are reflective of police power and other done constitutionally. Second rule: where that group, however,
statutes manifesting public policy. exercises right to self-determination, which right is recognized as
customary international law, then we ask 2 questions:
Has that right been recognized and addressed by the national

Determination of Statehood Scenarios government? If the answer is yes, that it had been addressed
therefore the group has not been denied by its right to self-
 Break-up of a large state into several states (e.g. determination, like what we’ve been doing with our Muslim brothers in
USSR, former Yugoslavia, and Czechoslovakia in 1990’s) Mindanao and anywhere else where we allow them to have their own
 Secession by part of a territory (e.g. Kosovo’s personal laws. We separate our theory on criminalization on polygamy
declaration of independence from Serbia in 2008) and many other practices. So we recognize this right to self-
 Foreign control is exercised over affairs of a state determination. But where there is a valid exercise of self-determination
(e.g. US’s control over the island of Palau in the Pacific but rejected or denied by the national government, then this is where
ocean before 1994) the group may unilaterally secede because such unilateral secession
 Merger or union of states (e.g. Egypt and Syria merged can be justified by the exercise of the right to self-determination.
in 1958 to form the United Arab Republic [Syria the seceded That’s how the case of Crimea should be resolved. We call it the right
from the UAR in 1961 and Egypt renamed itself Egypt]) to external self-determination.
 Claims by constituent units or a union or federation
to the attributes of statehood (e.g. separatist claims in When right to “self-determination” may be exercised
Quebec)
 Territorial or non-territorial communities which have SC of Canada:
special international status (e.g. Palestine’s “non- The international law right to self-determination only generates,
member observer state” of UN status in 2012) at best, a right to external self-determination in situations of former
colonies; where a people is oppressed, as for example under foreign
military occupation; or where a definable group is denied meaningful
What happened in the conflict of Russia and Ukraine involving Crimea? access to government to pursue their political, economic, social, and
It involves the situation of statehood. What happened in Crimea was cultural development (meaning, where the people have been denied
that there was a referendum and the result was more than 90% which the right to internal self-determination)
favored the separation of Crimea from Ukraine. It could probably
involve the issue of cessation. Now, is there such a right to secede?
The problem of “Secession” vis-à-vis the right of states to

Territorial Integrity
 Opinion of the SC of Canada in re: Secession of

Quebec [1998]:
- Secession is not authorized by the Constitution of Canada;
- International law does not specifically authorize nor prohibit
unilateral secession;
- But, states have the implied duty to recognize people’s “right
to self-determination”’
- Right to self-determination must be exercised within the
framework of sovereign states and consistent with territorial
integrity of those states (“right to internal self-
determination”) and “right to external self-determination”
(unilateral secession).
Peoples’ “Right to Self-determination” JURISDICTION
 A customary international law; a jus cogens and erga omnes  Jurisdiction to prescribe law (the authority of the state
norm; to make its policy applicable to persons or activities) (See:
 Set out in Art. 1(2) and Art. 55 of the UN Charter, Art. 2 of Restatement 402, except for universal jurisdiction, which is
G.A. Resolution entitled Declaration on the Granting of in Restatement 404)
Independence (1960) [“All peoples have the right to
self-determination; by virtue of that right they freely  Jurisdiction to adjudicate (authority of the state to
determine their political status and freely pursue subject particular persons or things to its courts)
their economic, social, and cultural development’]; in
ICCPR and ICESCR, and in 1970 Declaration of Friendly  Jurisdiction to enforce (concerned with the authority of a
Relations of the G.A. state to use the resources of government to induce or
 Article 1(4) of Protocol I of the 1949 Geneva Conventions compel compliance with its law; includes authority to arrest.
make the laws of international armed conflict applicable to
“armed conflicts in which peoples are fighting against
colonial domination and alien occupation and against a. Jurisdiction to prescribe law- Congressional, enactment
racist regimes in the exercise of the right of self- of statute whether it becomes applicable within or
determination.” without. i.e. Art 2 of the RPC on extraterritorial
 Any group within a territory claiming to be fighting against application of Penal Laws
colonial domination, alien occupation or a racist b. Jurisdiction to adjudicate- Judicial
regime (national liberation movement) is now c. Jurisdiction to enforce- Executive
protected by the laws of war, and that its members are
entitled to prisoner-of-war status. The issues usually emerge when it comes to Criminal
Jurisdiction. There are four theories that will justify the acquisition of
jurisdiction over the person of the accused.
Basicallly murag diha ra na nga situations makaingon ka there is,
actually we call it national liberation movement. Because national
liberation movements are considered movements exercising the right
to self-determination, and the way such national liberation movement Criminal Jurisdiction
is defined to trigger international armed conflict, the Geneva
Convention focused on 3 areas where the right to self-determination Various Principles/Theories:
maybe validly exercised. Where there is no colonial domination, alien
occupation and racist regime, any armed group that would try to Territorial Principle (Subjective vs. Objective)
liberate itself may be treated as criminals and not as national liberation
movement. Nationality Principle (Active vs. Passive)
Recognition of State Protective Principle
-Theories on Legal Effects of Recognition of State in International Law: Universality Principle

(1) Constitutive
(2) Declaratory
Of the four theories, more acceptable is are the Territorial
-Article 3 of Montevideo Convention acknowledges “Declaratory Principle and Universality Principle, which means courts all over the
Theory”, to wit: “The political existence of the State is independent of world are not unanimous they way Nationality Principle and Protective
recognition by the other States. Even before recognition, the State has Principle are applied. That would therefore depend on the kind of State
the right to defend its integrity and independence….” involved. In the case of the United States of America, the US Courts
usually have more leeway and more aggressive application of all of
these principles.
Let me proceed to jurisdiction. As you know, jurisdiction is the clear
manifestation of sovereignty. That’s why each time sovereignty is Territorial Jurisdiction
discussed, there is also a need to discuss jurisdiction because states
exercise sovereignty by exercising jurisdiction. In international law, -State has jurisdiction over property, persons, acts or events occurring
jurisdiction may be classified as: jurisdiction to prescribe law, within its territory.
jurisdiction to adjudicate, and jurisdiction to enforce.
 Subjective Territorial Principle: jurisdiction to prosecute
or punish crimes commenced within their territory but
completed or consummated in the territory of another state.
 Objective Territorial Principle: certain states apply their
territorial jurisdiction to offenses or acts commenced in
another state, but (i) consummated or completed within
their territory, or (ii) producing gravely harmful
consequences to the social or economic order inside their
territory.
Nottebohm Case
(Liechtenstein vs. Guatemala, ICJ, 1955)
Under the Subjective Territorial Principle, an example is if X
from State A, using a long ranged riffle killed Y in State B, which has Key Principle:
the proper jurisdiction of the crime?
Nationality as a basis for exercising jurisdiction must
From the given example, the crime commenced in State A be real and effective to give a right to a state who has
and the Court therein has the option to exercise jurisdiction or not conferred it. Real and effective link with the state of
depending on which principle it will apply. If it chooses to exercise nationality necessary. Right to diplomatic protection and
jurisdiction over the said crime, it should then choose to apply the protection by means of international judicial proceedings only
Subjective Territorial Principle, wherein the jurisdiction to prosecute or arises when proper nationality link exists between the
punish crimes commenced in State A but completed or consummated individual concerned and the state seeking to exercise such
in another state or in State B. However, if it chooses not to exercise rights. [“Effective Nationality Theory”]
jurisdiction over the said crime, it should then choose to apply the
Objective Territorial Principle, wherein State B where the crime was
consummated or completed acquires the jurisdiction although the THE FACT THAT A PERSON IS A CITIZEN OF A STATE DOES
offense commenced in State A. NOT AUTOMATICALLY TRIGER THE APPLICATION OF NATIONALITY
PRINCIPLE BECAUSE IN PUBLIC INTERNATIONAL LAW, THERE MUST
United States vs. Vasquez-Velasco (1972) BE A REAL AND EFFECTIVE LINK IN THE SUPPOSED NATIONAL
AND THE STATE.
Facts:
Javier Vasquez-Velasco, a member of a drug cartel in In Passive Nationality, it has been perceived to have limited scope and
Guadalajara, Mexico and several other members, beat and killed usually applicable in terrorist attacks. For the 1998 bombings of the US
(John) Walker [an American citizen writing a novel in Mexico] and Embassy in Kenya. Kinsa ma’y victims? Passive man? Americans. So
(Alberto) Radelat [a photographer and US legal resident]. At trial, the that was justified by the United States because US Court man. As I
US argued that Velasquez-Velasco and his three co-defendants told you earlier, option na sa court, kung gusto siya muexercise of
committed the crimes to further their positions in a Guadalajara drug jurisdiction, pili lang siya asa’y applicable. Apparently the Passive
cartel. The murders Velasco was charged with were allegedly Nationality Principle justified the exercise of jurisdiction over Usama
retaliatory actions against a US Drug Enforcement Agency (DEA) Bin Laden and others.
crackdown. He was convicted under US law. On appeal, Vasquez-
Velasco argued that US penal laws do not apply extraterritorially. United States vs. Usama Bin Laden (2000)
Facts: Defendants are charged with a variety of crimes stemming

Nationality Principle in Jurisdiction from the August 1998 bombings of the US Embassies in Nairobi,
Kenya.
 Active Nationality
- states may regulate the conduct of their nationals wherever Court: The passive personality principle is increasingly
they are in the world accepted as applied to terrorists and other organized attacks
on a state’s nationals by reason of their nationality, or to
 Passive Nationality assassination of a state’s diplomatic representatives or other
- a state may prescribe law for situations where its nationals officials…” (citing Restatement 402). “…..Universal jurisdiction is
are a victim of the conduct being regulated increasingly accepted for certain acts of terrorism…” (citing
- this has limited scope, usually applicable to terrorist attacks Restatement 404)…Both universal jurisdiction and the protective
principle xxxxxx xxxxx for jurisdiction by the United States over the
death of xxxxx citizens.”
Active Nationality- Offender/ Actor
Passive Nationality- Victim
Then we go to Protective Principle in jurisdiction. Leading practitioner
But of course, Nationality Principle is not equivalent to of Protective Principle is the United States.
assessing citizenship, so mere citizenship is not equivalent to
nationality when it comes to nationality principle. Remember the case Protective Principle in Jurisdiction
of Nottebohm where the real and effective link with the State of
Nationality is necessary. - a state can legislate crimes that it considers to be a threat to
its security, integrity, or economic interests
- common examples: espionage, counterfeiting (terrorism?)
Restatement 402: “…a state has jurisdiction to prescribe the law with
respect to…(3) certain conduct outside its territory by persons not its
nationals that is directed against the security of the state or against a
limited class of other state interests.”
 This principle is limited to conduct that occurs outside a
state’s territory, by noncitizens
So we have here perceptions that this Protective Principle, being to England for medical purpose. There he was arrested. Spain had
narrow in scope, would usually apply only to situations where there is earlier issued an international warrant of arrest against Pinochet.
threat to security, integrity or economic interest. Economic interest is When he was arrested in England, Spain wanted to exercise
very much practiced in the US but anywhere else, courts only focus on jurisdiction over Pinochet.
security and integrity. So that makes it narrower in scope. Di na siya
applicable in all cases – ang protective principle. How was it justified? Spain invoked Universal Jurisdiction because the
crime committed is a universally punished crime – torture. And acts of
We have here examples of the application of Protective Principle. torture have already been considered customary international law and
Panamanian ship outside of the territory of any court, in the high seas, in fact we now have CAT as its clear manifestation of its being a
the Supreme Court of the US affirmed the validity of the acquisition(?) customary international law. Convention Against Torture.
on the basis of Protective Principle. Because the ship was instrumental
in the introduction of prohibited drugs to the US. In the US, kanang Also, Spain relied on Passive Nationality Principle because the victims
introduction of prohibited drugs, would be a threat to the security. were Spanish. Blue Spanish Eyes. 
United States vs. Romero-Galue, 757 F.2d 1147 (11th Cir.

1985)
Pinochet Case
US could still exercise jurisdiction over the Panamanian ship even if
there is no treaty because the protective principle would allow the US - Spain relied on Universal Jurisdiction to argue for Pinochet’s
to prosecute foreign nationals on foreign vessels on the high seas for extradition from England to Spain
possession of narcotics (and in some way inherently harmed the US) - It also relied on Passive Nationality/Personality (Spanish
citizens were killed in Chile)
 “The protective principle permits a nation to assert - Passive Nationality/Personality was found to be more
jurisdiction over a person whose conduct outside the persuasive than Universal Jurisdiction
nation’s territory threatens the nation’s security or - No Territorial Jurisdiction – happened in Chile, not Spain
could potentially interfere with the operation of - No Active Nationality – Pinochet was not Spanish
governmental functions.” - No Protective Principle – there was no imminent threat to
Spain’s national security from Chile
Universality Principle (Universal Jurisdiction) –

EXTRADITION
Our leading case is Attorney General of Government of Israel v.
Eichmann. Involves one of the trusted generals of Hitler. So Eichmann These are the six fundamental rules in extradition – all of them asked
was in Argentina, captured by Israeli agents and prosecuted in Israel in the bar exam.
for crimes committed in Germany. Crime committed is Genocide.
Basic Principles in Extradition
Attorney General of Government of Israel vs. Eichmann
(1961) 1. No treaty, no “obligation” to extradite
2. Pacta sunt servanda applies
Israel tried and convicted Adolf Eichmann, who had been captured by 3. Dual purposes: 1. Prosecution, 2. Execution
Israeli agents in Argentina and brought to Israel for trial. Eichmann 4. Could not cover “political offenses”
was charged of committing crimes against Jewish people, crimes a. Cf: “Attentat
against humanity, war crimes, and membership in hostile organization Clause”
as defined in Israel’s Nazis and Nazi Collaborators Punishment Law. 5. “Rule of Specialty” must be followed
Eichmann argued that the court had no jurisdiction because he was 6. Ex post Facto Law prohibition does not apply
captured in a foreign country in violation of international law.
1. Extradition is treaty-based. Where there is no extradition

What should justify the exercise of jurisdiction? Universal Jurisdiction treaty, there is no obligation to extradite.
because universal jurisdiction is usually applicable for crimes that are
violation of erga omnes norms, or jus cogens, one of which of course 2. The only way by which a state can be compelled to extradite
is genocide. Torture, slavery. is pacta sunt servanda.
Court: 3. There are two purposes: prosecution and execution.

Prosecution before conviction, and execution for those who
“From the point of view of international law, the power of have already been convicted but were able to go to a foreign
the State of Israel to enact the law in question…is based… on a dual territory.
foundation: the universal character of the crimes in question and their
specific character intended to exterminate Jewish people.” 4. Because there is the Right to Asylum, we don’t apply
extradition to political offenses.
- What is this attentat clause? Attentat clause is usually found
The case of Pinochet is also a leading case in jurisdiction. Pinochet was in extradition treaties would provide that the mere killing of
then dictator in Chile and there were allegations of torture against a head of state should not constitute automatically as a
Spanish citizens in Chile. When ousted by a democratic group, he went political offense to avoid extradition.
justification is this: apprehension or arrest of a criminal is not a
5. Then we have the rule of specialty in extradition. What does function of the court therefore, any conduct or misconduct or whatever
it mean? What are the kinds of crimes that can be subject of manner is employed in the arrest of the criminal should not affect the
extradition? There are two kinds, one considered listed and jurisdiction of the court for as long as according to the court in the
one through the application of double criminality principle. case of Ker vs. Illinois: for as long as the person arrested when already
So pwede mag enumerate ang 2 ka parties sa treaty kung in court will be afforded due process. And the rules on criminal
unsa na crimes ang pwede ma subject sa extradition then it procedure and the rights of an accused will be afforded to the
will provide a clause, double-criminality clause which accused. He will be presumed innocent until proven otherwise,
provides that if in the event a crime is committed which is evidence obtained in violation of due process and evidentiary rules will
not among those listed. The reasons being the characters of not be admitted in evidence. So those principles will still be applied. So
people change or new crime laws will be passed. That's why the court said: di mo matter ang manner of abduction basta the
most states would stipulate on double-criminality clause moment he is prosecuted, he will have all the rights of the accused,
which means that even if a crime is not listed in the treaty, if including his rights to due process.
the crime is punishable in both states, then it can be a
subject of extradition. The rule of specialty means that if a The principle of male captus bene detentus was affirmed in the case of
request for extradition is done on a specific offense or crime Attorney General of the Government of Israel v. Eichmann
let's say murder, it is a violation of due process and 1961 but as early as 1886, you have the cases of Ker vs. Illinois and
international law will not allow a prosecution of the Friesbie vs Collins in 1952. Abduction in and on itself does not
extraditee or extradited person for another offense. So kung invalidate a prosecution against a foreign national.
gi extadite ka on the basis of the request for murder then
pag balik na sa receiving state, iprosecute ka for rape, then Attorney General of Israel vs. Eichmann (1961)
whether or not extraditable offense siya or dili, it does not
matter. If the extradition is for murder then the extraditee Israeli agents had abducted Eichmann from Argentina without consent
must be prosecutecd for murder. of Argentinian government. Eichmann argued before the Israeli Court
that the illegal act of abduction took away the jurisdiction of Israeli
6. Ex post facto law does not apply because it is not a penal courts to try him and he should be returned to Argentina to be tried
law. So pwede na crimes committed in the past, let's say there. Argentina complained to the UN about this abduction,
committed on 2010 and then extradition treaty took effect demanding not only compensation for unlawful intervention on its
on 2012, pwede mu apply. territory, but also for the return of Eichmann. The issue was however
mooted by an agreement entered into by Argentina and Israel.
Of course the issue of legality of the abduction of criminals in foreign

territory is also a relevant issue in jurisdiction. Ker vs. Illinois (1886)
Legality of “Abduction” of criminals in foreign territory: The treaties of extradition to which the United States are
parties do not guarantee a fugitive from the justice of one of countries
 Three modes of “Rendition”: Extradition, Deportation, and an asylum in the other. They do not give such person any greater or
Abduction. more sacred right of asylum than he had before. They only make
 Abduction of criminals in the territory of another is provision that for certain crimes, he shall be deprived of that asylum
understood as “intervention” and therefore violates and surrendered to justice, and they prescribe the mode in which this
customary law and the UN Charter (Art. 2(4)); shall be done…How far such forcible transfer of the defendant
 It can only be justified if done invoking self-defense; so as to bring him within the jurisdiction of the state where
 But, the illegal apprehension will not necessarily the offense was committed may be set up against the right to
affect the jurisdiction of the apprehending state try him is the province of the state court to decide, and
(male captus, bene detentus) unless the defendant presents no question in which this Court can review its
was secured through torture, brutality, or similar decision.
outrageous conduct.
Frisbie vs. Collins (1952)

There are 3 modes of rendition as observed by experts in international
law. The two are institutionalized extradition. Deportation is also Court: This court has never departed from the rule announced in Ker
institutionalized, abduction is not. It is an accepted mode of rendition. v. Illinois, … that the power of a court to try a person for crime
is not impaired by the fact that he had been brought within
Theoretically of course, if you abduct a criminal or any person for that the court’s jurisdiction by reason of a “forcible abduction.” No
matter from foreign soil, it's a violation of international law, the persuasive reasons are now presented to justify overruling this line of
principle of non-intervention. That's a given. If abduction is made in a cases. They rest on the sound basis that due process of law is satisfied
foreign territory, there is violation of international law but will that when one present in court is convicted of crime after having been
violation affect the validity of the abduction to the point that the court fairly apprised of the charges against him, and after a fair trial in
will be divested of its jurisdiction? We are guided by the general accordance with constitutional procedural safeguards. There is nothing
principle of male captus bene detentus or wrongfully captured, validly in the Constitution that requires a court to permit a guilty person
detained, meaning the illegal apprehension of a criminal will not rightfully convicted to escape justice because he was brought to xxxxx
necessarily affect the jurisdiction of the apprehending state. xxxx (against) his will.
Bar exam question: What is the justification for the rule? The
United States vs. Alvarez-Machain (1992) in front of his wife). In Lujan, he was blindfolded, kidnapped and
detained in a secret place but there was no allegation of brutality,
The presence of an extradition treaty between the United torture or similar outrageous conduct, thus, the court went back to the
States and another nation does not necessarily preclude obtaining a basic principle of male captus, bene detentus.
citizen of that nation through abduction. It has long been the rule that
abduction, in and of itself, does not invalidate a prosecution Lujan v. Gengler (1974)
against a foreign national. The only question, therefore, is
whether the abduction violates any extradition treaty that may be in Government-sponsored abduction, in and of itself, did not constitute
effect between the United States and the nation in which the abductee conduct sufficiently “shocking” to violate due process and therefore did
was to be found. Here, the US-Mexican authorities presumably were not trigger the Toscanino exception to Ker-Frisbie. Rather, the
aware of the United States’ long-standing law regarding abductions Toscanino exception required more - - such as kidnapping combined
and did not insist on including a prohibition against abductions. with torture at the hands of agents of the US Government. Here and
unlike in Toscanino, there is no showing that police brutality,
torture or similar outrageous conduct accompanied the
Now, let's go to the exception: unless the defendant was secured abduction.
through torture, brutality or similar outrageous conduct. Our authority
on the matter is the case of US vs Toscanino 1974. Why was this case
applied and not Ker vs. Illinois and Friesbie vs Collins in 1952? HEAD OF STATE AND DIPLOMATIC IMMUNITY
You look at the date when it was decided. The SC of the US in the
Toscanino case traced back the perception of the world of an There are two kinds of immunity: ratione personae and ratione
individual at the international level. In the past, it's easy to disregard materiae. In immunity ratione personae, we look at the person and the
certain rights of individual in favor of state interest. Utilitarianism. The law as it is applicable to the person, i.e., we look at the head of state
idea in the past is the end justifies the means. But because of while he is the head of state or a diplomat. On the other hand,
development of international humanitarian law, perception of giving an immunity ratione materiae becomes relevant when we look at a
individual more rights at the international level, domestic courts also FORMER head of state or a diplomat.
adopted to that.
Two categories of diplomatic immunity:
U.S. vs. Toscanino (1974)
 Immunity ratione personae
Toscanino was abducted in Uruguay by an agent of the United States, - Immunity that attaches to the person of the diplomat while
taken to Brazil, and brutally tortured and interrogated for 17 days. He he is a diplomat
was then placed on a civilian aircraft bound for the U.S. and arrested - This is irrelevant for former diplomats
on arrival. He contended that the district court lacked jurisdiction over
him because of the circumstances of his arrest. Notwithstanding Ker-  Immunity ratione materiae
Frisbie, the U.S. Court of Appeals for the Second Circuit agreed, ruling - For former officials, the focus is on the act. This is normally
that, if the allegations were true, they were so shocking to the irrelevant while a person is a diplomat;
conscience that due process required that the district court - When a person ceases to be a diplomat, or his government
divest itself of jurisdiction. waives his immunity, the person retains substantive
immunity for actions he performs in his civil function while
Court (through J. Mansfield): still diplomat.
“We view due process as now requiring a court to divest itself
of jurisdiction over the person of a defendant where it has been
acquired as the result of the government’s deliberate, unnecessary and Head of State
unreasonable invasion of the accused’s constitutional rights.”
What is the rule on head of state? Is the head of state immune from
suit?
And so the court said, due process would now require the court to
If he’s incumbent, immunity ratione personae—during incumbency a
divest itself of its jurisdiction over the person of the defendant where it
head of state is immune from suit, even foreign ministers (in the case
has been acquired as a result of government’s deliberate, unnecessary,
of Congo), and even diplomatic officials are immune from arrest,
and unreasonable invasions of the constitutional rights of an accused.
detention, and processes while they are incumbent. However, in the
Abduction is a violation of principle of non-intervention. However, the
case of head of state, it is absolute in all cases whether civil, criminal,
court held that abduction per se will not divest the court of jurisdiction.
special proceeding, even for international crimes (although that is still
If the abduction is accompanied by brutality, torture and other similar
a debatable issue). In the case of Belgium v Congo, he’s exempt
outrageous conduct, the court is also duty bound to consider such
even for international crimes as long as he’s incumbent, meaning,
situation, and part of due process, to divest itself of its jurisdiction.
prosecution comes only after their incumbency applying immunity
That is the case of US vs. Toscanino (1974).
ratione personae.
But a few months after Toscanino, the case of Lujan v. Gengler
Diplomatic Immunity
(1974) wherein the Toscanino was not applied, and it reverted back
to Ker-Frisbie applying male captus, bene detentus because according
to the court, mere kidnapping or abduction will not divest the court of
its jurisdiction, unlike in Toscanino where the kidnapping was
accompanied by torture (the brutality in Toscanino was to the extent
that he was hit with the butt of a gun, and such brutalities were done
Personal and Functional Immunity of Diplomatic Officials
In terms of immunity from jurisdiction, a distinction must be (Sir skipped TREATY LAW)
drawn between civil and criminal process.
In terms of criminal jurisdiction, diplomatic agents have total

immunity from the law of the receiving state and the only remedy LAW OF THE SEA
available to the receiving state is to declare the diplomat persona non
The Law of the Sea
grata. The immunity from criminal jurisdiction applies to any offense
committed by the diplomat whether official or not. In terms of civil
 Governed by the 1982 UNCLOS III (UNCLOS I – 1958;
jurisdiction, diplomats are immune from the civil jurisdiction of the
UNCLOS II – 1960)
receiving state except in three (3) cases. The immunity of diplomats
 Basic Zones: 1. Internal Waters, 2. Territorial Sea, 3.
extends to “arrests” and “detentions”. (See: DR of Congo vs. Belgium,
Contiguous Zone, 4. Exclusive Economic Zone, and 5.
2002)
High Seas.
 Baseline (Low-water mark Method vs. Straight Baseline
In the case of diplomats, when we’re talking about immunity ratione Method)
personae, there is absolute immunity in criminal suit only, but he is not
immune in civil suit in certain cases. Distinguished from a head of state
UNCLOS, the latest is UNCLOS III, 1982 and it governs basic zones:
who enjoys absolute immunity in all cases whether criminal or civil.
internal waters, territorial sea, contiguous zone, EEZ and the high
Total immunity in criminal jurisdiction for diplomats, the remedy of the
seas.
receiving State is to declare diplomat as persona non grata (an
ungrateful person). The concept of persona non grata is specifically
Let us explore the rights of the coastal states of these maritime zones.
applicable to diplomats (not applicable to fellow Filipinos, it is a
misapplication of such remedy). Persona non grata is a remedy
First, we have to know the baselines because these zones are
because the diplomat is supposedly totally immune from criminal
computed from the baselines. The baseline is mandated to be done
jurisdiction, i.e., arrest, detention, processes whether done in his
domestically. So all member states of the UNCLOS were given a
official capacity or not.
deadline to define their baselines on the basis of the mandate of the
UNCLOS. And the Philippines, siguro as a manifestation of our
In terms of civil jurisdiction, diplomats are immune generally, except in
character, nag – JIT ta class. ‘Just In Time’. We already defined our
three cases (please just look at our convention on diplomatic and
baseline law and it was questioned in the case of Magallona v. Ermita,
consular officials), regardless of whether done in their official capacity.
and it was upheld as valid. It did not restrict or expand our territory. It
Unlike in consuls we limit their immunity to official conduct only.
simply defined our baseline.
Functional Immunity of Consular Officials
We use Low-Water Mark for non-archipelagic states. For archipelagic
states, we use the Straight Baseline Method. And the Straight Baseline
As for Consuls, however, although they enjoy more or less the
Method would require the drawing of an imaginary line, connecting the
same immunities and privileges as diplomats, their immunity from
outermost points of the outermost islands, including dry reefs of a
criminal and civil jurisdiction extends to their official acts only.
particular archipelago. Then, you comply with certain limitations, such
as:
Ambassadors are for political concerns of the state. Consuls are for
1. The straight baseline shall not depart appreciably from the
commercial aspects of the state.
natural configuration or form of the archipelago.
2. The water to land ratio shall not exceed 9:1 (9-water, 1-land
After incumbency, a head of State, may already be prosecuted except
mass)
for acts done in his official capacity. So, totally exempt during
incumbency. Post-incumbency, we need to distinguish between acts These are the common limitations of the straight baseline method.
done in official capacity and acts done not in official capacity. So for
acts done in official capacity even if it is post-incumbency, EXEMPT. [This is not complete. Here’s Art.47 of the UNCLOS where these
limitations were lifted:
That is why, in the case of PINOCHET since it was an act of torture,
according to the Court, it cannot be official because it is a violation of
“1. An archipelagic State may draw straight archipelagic baselines
Jus Cogens norm prohibiting torture.
joining the outermost points of the outermost islands and drying reefs
of the archipelago provided that within such baselines are included the
main islands and an area in which the ratio of the area of the water to
Immunity of Former Head of State in Criminal Proceedings the area of the land, including atolls, is between 1 to 1 and 9 to 1.
The Pinochet Case (2001): 2. The length of such baselines shall not exceed 100 nautical miles,
The House of Lords of UK ruled that “the absolute except that up to 3 per cent of the total number of baselines enclosing
prohibition of torture, a jus cogens norm, overrides immunity any archipelago may exceed that length, up to a maximum length of
afforded to a former Head of State in criminal proceedings. 125 nautical miles.
The commission of a crime against humanity and jus cogens cannot be
done in an official capacity on behalf of a state.” 3. The drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago. ventral (referring to above illustration).
4. Such baselines shall not be drawn to and from low-tide elevations, We have to know this because we have to know the rule regarding the
Continental Shelf. We still have to know the rights of the coastal states
unless lighthouses or similar installations which are permanently above
sea level have been built on them or where a low-tide elevation is over continental shelves especially in relation with the EEZ. That’s how
it should look. (referring to below illustration)
situated wholly or partly at a distance not exceeding the breadth of the
territorial sea from the nearest island.
Baselines – 12NM – 24NM …There can be 350nm from the territorial
sea for the Continental Shelf where the natural prolongation of the
5. The system of such baselines shall not be applied by an archipelagic shelf extends 200 nm because if this [kanang nag slope, that is the
State in such a manner as to cut off from the high seas or the continental shelf (Sir referring to the Illustration)] Kung shorter na siya
exclusive economic zone the territorial sea of another State. sa 200nm, the rights of the coastal states over minerals and living
organisms that would qualify as sedentary species, would be within the
6. If a part of the archipelagic waters of an archipelagic State lies sovereign rights of the coastal state even if found to be beyond the
between two parts of an immediately adjacent neighbouring State, natural prolongation kung less than 200 nm siya.
existing rights and all other legitimate interests which the latter State
has traditionally exercised in such waters and all rights stipulated by In a situation where the natural prolongation would extend beyond the
agreement between those States shall continue and be respected. 200 nm, then it can reach up to 350 nm. There’s a more complicated
Isopath Rule.
7. For the purpose of computing the ratio of water to land under
Competences in Zones of the Sea
paragraph l, land areas may include waters lying within the fringing
reefs of islands and atolls, including that part of a steep-sided oceanic
plateau which is enclosed or nearly enclosed by a chain of limestone
islands and drying reefs lying on the perimeter of the plateau.
8. The baselines drawn in accordance with this article shall be shown

on charts of a scale or scales adequate for ascertaining their position.
Alternatively, lists of geographical coordinates of points, specifying the
geodetic datum, may be substituted.
9. The archipelagic State shall give due publicity to such charts or lists
of geographical coordinates and shall deposit a copy of each such
chart or list with the Secretary-General of the United Nations.”]
So, if as an example, non-archipelagic state, so our zone would look

like this: (Refer to ILLUSTRATION) internal waters, meaning waters Let’s go to the different maritime zones.
inland before the territorial sea and would include bays, rivers, canals.
First, the Internal Waters. ABSOLUTE. Ship in distress is the ONLY
Measurements of Zones of Sea EXCEPTION when foreign vessels can enter Internal Waters.
Internal Waters
- include ports, harbors, rivers, lakes and canals.

- the coastal state can prohibit entry into its internal waters by foreign
ships, except for ships in distress.
- When already within internal waters, different legal questions arise
depending on the kind of vessel that is within the internal waters:
merchant ships, warships, other foreign non-commercial ships.
Internal Waters include ports, harbors, rivers, lakes and canals (man-
made canals in international law).The coastal state can prohibit entry
into its internal waters by foreign ships, except for ships in distress.
Then you have the Territorial Sea, 12 nm from the baseline (the yellow Territorial Waters.
color)
EXCEPTION: Right to innocent passage. When is passage considered
Then 24 nm from the baseline, is the contiguous zone. 200 nm from innocent, that’s also found in the UNCLOS. Take a look at examples of
the baseline is the EEZ. Beyond is the high seas. Remember, the high acts which do not fall under the right of innocent passage later.
seas is not similar to international waters. These zones can be divided
into two kinds: INTERNATIONAL and NON-INTERNATIONAL WATERS.
International Waters are waters after the territorial sea. Within the
territorial sea are non-international waters. So that’s one perspective,
Territorial Sea Territorial Sea
- Not Exceeding 12 n.m. from the “baseline”  Rights of Ships – innocent passage (Arts. 17-18)
- Baselines: 1. Normal Baseline (Low-Water Mark method), and 2.
Straight Baseline Method Art. 17: Subject to this Convention, ships of all States … enjoy the
- Limitation: “Right of Innocent Passage” by foreign ships. It is right of innocent passage through the territorial sea.
innocent if not prejudicial to the peace, good order or security of the
coastal state. Fishing vessels must comply with local laws and Art. 18: 1. Passage means navigation through the territorial sea for
submarines must navigate on the surface and show their flag. the purpose of:
(a) Traversing that sea without entering internal waters or
calling at a roadstead or port facility outside internal waters;
Recap: Internal Waters, exception: Ships in Distress. Territorial Sea, or
exception: Right to Innocent Passage. (b) Proceeding to or from internal waters or a call at such
roadstead port facility.
When is passage considered innocent? It is found in the UNCLOS. Take 2. Passage shall be continuous and expeditious. However, passage
a look at examples of acts which do not fall under the right of innocent includes stopping and anchoring, but only in so far as the same are
passage later. incidental to ordinary navigation or are rendered necessary by force
majeure or distress or for the purpose of rendering assistance to
Territorial Sea, 12nm from the Baseline. For Archipelagic States, persons, ships or aircraft in danger or distress.
straight baselines; For non- archipelagic states, Low water mark.
That’s the point where the water and the dry land mass meet during
low tide. Examples of acts that will negate right of innocent passage. This is
where the French Rule and English Rule comes in. But ayaw na nah
Territorial Sea ninyo iapply because these were rules followed before the UNCLOS.
 Breadth (Art. 3)
- Up to 12 nautical miles from baseline …
Territorial Sea
 Measurement - baseline (Art. 5):
- Except where otherwise provided in this Convention, the Meaning of Innocent Passage (Art. 19):
normal baseline for measuring the breadth of the territorial
sea is the low-water line along the coast as marked on 1. Passage is innocent so long as it is not prejudicial to the
large-scale charts officially recognized by the coastal State. peace, good order, or security of the coastal State. Such
passage shall take place in conformity with this Convention
and with other rules of international law.
So that’s part of the territory ha, ang territorial sea of course. So our 2. Passage of a foreign ship shall be considered to be
laws extend up to 12 NM in all respects. prejudicial to the peace, good order, or security of the
coastal State if in the territorial sea it engages in any of the
Territorial Sea following activities:
- [Paraphrased: threat or use of force, weapon exercise,
Sovereignty, subject to the Law of the Sea Convention (Art. 2) espionage, launching or landing of aircraft or other military
device, violation of customs, fiscal, immigration or sanitary
1. The sovereignty of a coastal State extends, beyond its land laws, willful and serious pollution, fishing, research or
territory and internal waters and, in the case of an archipelagic surveying activities, interfering with communications or other
State, its archipelagic waters, to an adjacent belt of sea, facilities, or “any other activity not having a direct bearing
described as the territorial sea. on passage”]
2. This sovereignty extends to the airspace over the territorial sea
as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to
this Convention and to other rules of international law.
SO these are the examples of exercise of the right to innocent

passage.
Territorial Sea Exclusive Economic Zone
Civil Jurisdiction in Relation to Foreign Ships (Art. 28) Specific Legal Regime created by UNCLOS
1. The coastal State should not stop or divert a foreign ship  Art. 55 – the exclusive economic zone is an area beyond
passing through the territorial sea for the purpose of and adjacent to the territorial sea, subject to the specific
exercising civil jurisdiction in relation to a person on board legal regime established in this Part, under which the rights
the ship. and jurisdiction of the coastal State and the rights and
2. The coastal State may not levy execution against or arrest freedoms of other States are governed by the relevant
the ship for the purpose of any civil proceedings, save only provisions of this Convention.
in respect of obligations or liabilities assumed or incurred by
the ship itself in the course or for the purpose of its voyage Breadth
through the waters of the coastal State.
3. Paragraph 2 is without prejudice to the right of the coastal  Art. 57 – The exclusive economic zone shall not extend
State, in accordance with its laws, to levy execution against beyond 200 nautical miles from the baselines from which the
or to arrest, for the purpose of any civil proceedings, a breadth of the territorial sea is measured.
foreign ship lying in the territorial sea, or passing through
the territorial sea after leaving internal waters.
Difference between the EEZ and Continental Shelf
1. Ang EEZ will have to be claimed by the coastal state, not in the
case of Continental shelf. Exclusive gyud na siya (referring to the
Territorial Sea continental shelf). Ang EEZ (exclusive sovereign rights of
exploitation) if you cannot exploit the resources, you are mandated
Criminal Jurisdiction on Board a Foreign Ship (Art. 27) by the UNCLOS to enter into a joint venture with other states. So
kinanglan i-claim na nimo. Ang continental shelf exclusive gyud na
1. The criminal jurisdiction of the coastal State should not be siya sa coastal state. It is not mandated to enter into a joint
exercised on board a foreign ship passing through the venture without the consent of the coastal state.
territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed on 2. Sovereign rights of the EEZ would have to cover resources in the
board the ship during its passage, save only in the following waters superjacent to the seabed and the seabed and the subsoil.
cases: SO pag- imagine lang gud class, nga tubig ni, kaning fish nga
(a) If the consequences of the crime extend to the coastal superjacent sa subsoil (sa ibabaw), part na siya sa EEZ sovereign
State; rights. Inig touch na sa seabed ug subsoil, naa pa diha ang living
(b) If the crime is of a kind to disturb the peace of the and non – living resources. Pero kung ilawm na gani sa seabed ug
country or the good order of the territorial sea; subsoil, under seabed and subsoil, MINERALS, maw na nah ang
(c) If the assistance of the local authorities has been subject sa CONTINENTAL Shelf sovereign rights.
requested by the master of the ship or by a diplomatic
agent or consular officer of the flag State; or
(d) If such measures are necessary for the suppression of
illicit traffic in narcotic drugs or psychotropic
substances.
Contiguous Zone, this is where the state can exercise protective

jurisdiction. Kung territorial sea, absolute.
Contiguous Zone
-24 n.m. from the baseline
-Coastal State is limited to Protective Jurisdiction only, that is, to

prevent infringement of its customs, fiscal, immigration, or
sanitary regulations
EEZ
Exclusive Economic Zone {POST-MOCK BAR, October 3, 2014}
Art. 56 – Rights, jurisdiction and duties of the coastal State in CONTEMPORARY ISSUES IN PUBLIC INTERNATIONAL LAW
the EEZ
If an agreement is not entitled “Treaty”, will it be governed by the
1. In the exclusive economic zone, the coastal State has: Vienna Convention on the Law of Treaties?
(a) Sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural UN Sanctions and Collective Security – this is a recurring issue. We’re
resources, whether living or non-living, of the waters talking about the recurring issues involving Middle-East countries, in
superjacent to the seabed and of the seabed and Syria, in Israel. Also, special status of some territories, whether they
its subsoil, and with regard to other activities for the can be considered state or not.
economic exploitation and exploration of the zone, such
UN SANCTIONS AND COLLECTIVE SECURITY
as the production of energy from the water, currents
and winds;
What is the rule of thumb when it comes to resolving conflicts? The
(b) Jurisdiction as provided for in the relevant provisions of
first rule of thumb (?) when it comes to Conflict Resolution in
this Convention with regard to:…..(ii)marine scientific
International Law is through Peaceful Means. When we talk about UN
research; (iii)the protection and preservation of the
Sanctions and Collective Security, we begin with measures that are
marine environment;
short of armed force. One of the issues that we’ll be talking about will
(c) Other rights and duties provided for in this Convention
be the issue on the use of force either by the UN, by an individual
state, or by a collective effort in pursuit of Self Defense.
2. In exercising its rights and performing its duties under this
Convention in the exclusive economic zone, the coastal State
1. MEASURES SHORT OF ARMED FORCE
shall have due regard to the rights and duties of other
States…..
 Art. 33 allows the Security Council (SC) to call upon the
3. The rights set out in this article with respect to the seabed
parties to settle their disputes peacefully (through
and subsoil shall be exercised in accordance with Part VI
negotiation, enquiry, mediation, conciliation, arbitration,
[Continental Shelf]
judicial settlement, arrangements, etc.)
 Art. 39 allows UN to call upon the partners concerned to

Continental Shelf
implement “provisional measures”
Art. 77 – Rights of the coastal State over the continental shelf

 Art. 41 suggests that the SC should take measures “not
involving the use of force” “to give effect to its decision”
1. The coastal State exercises over the continental shelf
sovereign rights for the purpose of exploring it and
Examples:
exploiting its natural resources.
1. Complete or partial interruption of economic relations,
2. The rights referred to in paragraph 1 are exclusive in the
means of telecommunications, and severance of diplomatic
sense that if the coastal State does not explore the
ties;
continental shelf or exploit its natural resources, no one may
2. Non-recognition of illegal situations;
undertake these activities without the express consent of the
3. Condemnation of illegal acts;
coastal State.
4. Public Exposure by the GA of gross violations; and
3. The rights of the coastal State over the continental shelf do
5. Establishment of ad hoc criminal tribunals.
not depend on occupation, effective or notional, or on any
express proclamation.
4. The natural resources referred to in this Part consist of the
If you look at Article 33 of the UN Charter, you will see there the
mineral and other non-living resources of the seabed
idea/suggestion that before use of force will be employed – even by
and subsoil together with living organisms belonging
the UN – peaceful resolution should be availed of. Article 33 allows the
to sedentary species, that is to say, organisms which, at
Security Council (SC) to call upon the parties to settle their disputes
the harvestable stage, either are immobile on or under the
peacefully. And you will have negotiation, inquiry, mediation,
seabed or are unable to move except in constant physical
arbitration, conciliation, judicial settlement. And it’s very common
contact with the seabed or the subsoil.
when parties voluntarily submit their controversies to the international
court of justice.
The sedentary resources referred to in No. 4 is the only living Under Article 39 of the UN Charter, UN through SC may call upon the
resources in the continental shelf subject to the sovereign rights of the parties to implement some provisional measures during armed conflict.
coastal state, all others, non – living gyud na siya, meaning minerals. Instead of immediately sending troops to an area where there is an
Apart from continental seas, of course your high seas. ongoing armed conflict, it may be possible to send peacekeeping
operations for the purpose of implementing some provisional measures
(Referring to Mock Bar preparation: Please read Environmental Law –
that the parties have probably agreed upon, such as peaceful transport
The Trail Smelter Case. Then the transboundary norm. Apart from
or evacuation of citizens. Both parties can request the UN through
knowing that, we should also know whether these norms are norms of
their relevant Committees to help implement some provisional
Customary Intl Law. Do not disregard Intl Humanitarian Law)
measures. Agreement to have cease fire – the UN can be called upon
to make sure that such arrangement will be complied with. UN authorization.
Article 41 is the core Article suggesting the resort to measures that are 3 ways by which use of force may be authorized by the UN:
short of armed force. The SC may decide what measures to take that
do not involve the use of force to give effect to its decision. And in 1. May authorize a particular state to use force; [#3 IN
fact, we call upon UN members to implement such measures. There SLIDES]
are examples mentioned in Article 41. Examples of which would be 2. The UN may authorize regional organizations (like
complete, or partial interruption of economic relations, the NATO) to use force; or [#4 IN SLIDES]
complete/partial interruption of means of telecommunications, and 3. The General Assembly will authorize the Security
severance of diplomatic ties. These are peaceful means. Council to use force. [#5 IN SLIDES]
[TN] All these, upon the authorization of the Security Council.
Other options available to the SC would be the non-recognition of
illegal acts or situation. The issuance of resolutions. For example, And this 1st instance of UN authorization by the state is recognized in
when Iraq invaded Kuwait, the SC passed a series of resolutions Article 43 of the UN charter.
declaring that none of these acts done by Iraq would be recognized by
the members of the Family of Nations. So that’s a measure peaceful in [1ST INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY
character but will have significant effects in International Law. What UN]
else? Condemnation of illegal acts through resolutions. Public exposure 3. USE OF FORCE BY STATES UPON U.N.
by the General Assembly of gross violations. Establishment of ad hoc AUTHORIZATION
criminal tribunals. You’ve learned that there were ad hoc criminal
tribunals that were established upon the initiative of the UN. You have  Art. 43 authorizes Security Council to call upon member
the International Criminal Tribunal of the former Yugoslavia, for States “to contribute to the maintenance of international
Rwanda, Nuremberg, Tokyo, others. Those were upon the initiative of peace and security”;
the UN. These are examples of peaceful measures.
 This covers:
Aside from these measures, UN actively conducts peacekeeping 1. After a State had been engaged in acts of aggression
operations. against another State which had reacted in self-defense; or
2. When there is “threat to the peace or ongoing
2. PEACEKEEPING OPERATIONS international or internal armed conflicts” to implement IHL
rights (humanitarian crises)
 Deployment of peacekeeping forces (UN Blue Berets)
 Main functions: To separate contending parties, forestall
armed hostilities between them, and maintain order in a 1st situation. Ex. State A attacks State B and if it can be established
given area. that indeed there is armed attack or unlawful aggression therefore
 Evolved functions: To take necessary measures, including entitling the victim state to exercise self defense, the UN can authorize
use of force, to reply to bombardments against safe areas of State C, another state, to use force to repel the aggression.
any of the parties
TN that this is UN authorized action different from unilateral
intervention by some states even if it is apparently or allegedly for
The idea of Peacekeeping operations is now very well-known to us. humanitarian reasons. Different to cya. It is still an issue whether a
Re: Filipino soldiers who got involved in hostage-taking or armed state can unilaterally suppress atrocities in foreign counrties that are
confrontation at Syria (?), issue is, is there a moral obligation or legal violating human rights. If unilateral by that state, that is still an issue.
obligation to send troops? The moment we became a member of the But if it is authorized by the Security Council, that is already a
UN, part of commitments is to send troops under certain legitimate effort to suppress atrocities abroad that are already
arrangements. So we sent about 75 Filipino soldiers. That’s one nuh, considered violations of human rights. This is the first instance when
deployment of peacekeeping forces. the Sec. council will allow the use of force calling upon a member
state to use force.
Antonio Cassese made an analysis of the functions of peacekeeping
operations, and he made an observation that the original purpose of [2ND INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY
peacekeeping operation would simply be to one, separate contending UN]
parties and maintain order in a given area. Probably because 4. USE OF FORCE BY ORGANIZATIONS UPON
sophisticated na ang methods of warfare at present murag ang AUTHORIZATION OF THE SECURITY COUNCIL
traditional function of the peace keeping operation would not be
sufficient. Mao ang getawag nga evolving function of peace keeping  Art. 43 allows Security Council to utilize regional
operation. I called it contemporary issues because it is indeed an issue arrangements or agencies for “enforcement actions” “under
because sometimes the Security Council will allow the use of force its authority”
even in safe keeping operations. So, Security Council sa resolution  In 1999, during the Kosovo crisis, NATO decided to attack
would even specify when sending peace keeping operations that they the Federal Republic of Yugoslavia (Serbia and Montenegro)
may be allowed to use all means necessary to implement the decision without any specific authorization.
of the Security Council and ”that all means necessary” may include the  There is no customary law yet legitimizing forcible
use of force. That is one. intervention for humanitarian purposes without the need of
formal Security Council authorization (see: Antonio Cassese,
Another UN Security measure would be the use of force by states upon International Law)
but there seems to be a requirement that a resolution by the General
Assembly authorizing the use of force will have to be upon the request
This is very common and there is a legal basis for this. Under Article of Security Council. So dili pwede na ang Gen. Assembly on its own mu
53. An example of an issue, as i have said it has to be with the issue og resolution for the use of force. It has to be upon the request
authorization of the Security Council ,so indeed, this is an issue at one of Security Council. This is found in Art. 11 in relation 12 par. 1 of the
point in 1999 in the Kosovo crisis NATO attacked Serbia and charter, another important article to study.
Montenegro without waiting for specific authorization from the sec.
council. Just like what happened to US, although adverted ang effort Next issue: unilateral resort to use of force.
to attack Syria because of some developments, pero the plan
supposedly for the US is to take the attack to Syria because of the UNILATERAL RESORT TO FORCE
alleged use of neurological weapons by the government of Syria and
so you remember that Russia did not and was not expected to Jus Ad Bellum (the law of going to war)
cooperate with the Security Council.
 Art. 2(4) of the UN Charter prohibits “use of force” and
By the way, kanang veto power will not allow the Security Council to “threat to use force”; customary international law (see
authorize a particular major decision. Going back to the basic, there Nicaragua vs. US); analyze the scope and intensity
are 11 members of Security Council. Naa 5 permanent and 6 non- (“massive armed attack” against the “territorial
permanent members. For procedural issues, the Security Council will integrity and political independence of a state that
have to arrive at a vote of 7 but ang problem sa Security Council kai imperils its life and government); note: Retorsion &
kung other decision than procedures it would have to require the vote Reprisal are coercive measures short of war;
of the 5 permanent members, unanimous sila. If one nila disagrees mo
veto cya that no major action may be taken by the Security Council.  Any use of force/threat to use force may only be lawful if
Supposedly, may clause cya nga if a member is involved in the armed done with the collective decision of the UN in cases of
conflict dapat mu abstain cya. threats to peace, breaches of peace, or acts of aggression
[Chapters V-VII, UN Charter] [including against international
Pero mga ingani na problem, as you know the 5 permanent members terrorism, threats posed by weapons of mass destruction,
also have informal allies. The 5 permanent members are China, and on humanitarian grounds; cf: Art. 2(7)as limitation];
France, US, Russia and Great Britain. Russia apparently has financial
economic interest over oil in Syria so it was expected nga ang Russia  States can only justify use of force in case of self-defense
mo veto gyud sa pag grant og authority sa US to use force, na issue as recognized in Art. 51 of the UN Charter [Individual or
man to. Collective self-defense (see Arts. 52-53)] until the Security
Council has taken measures; the State exercising right of
According to Cassese, there is no customary law yet recognizing the self-defense must report the measures taken to the
legitimacy of forceful intervention either for humanitarian purposes if it Security Council;
is without Security Council authorization. That is a contemporary issue.
Why an issue? Because you have the norm, the rule and state practice,  Self-Defense must comply with the requirements of (1)
apparently is not in confimity with the norm mao na issue, not because presence of “armed attack”; and (2) observance of the
the norm itself is problematic but because developing man gud unta principles of “proportionality”, “precaution” and
ang International Law yet we somehow limited some of the possible “military necessity”
practices of states by putting threshold and standards in the UN
charter. This is the second.
So this brings me to that field of law called Jus Ad Bellum. There are 2
[3RD INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY kinds of rules or legal system involving war. One is Pre-War and the
UN] other is During-War. So when we say Jus ad Bellum, this is the
5. USE OF FORCE AS AUTHORIZED BY THE GENERAL category of law evaluating situations or instances when a state can
ASSEMBLY lawfully engage in war, in short, when to lawfully use force. The most
relevant article of course is Article 2(4) in relation to Article 51. Article
 The General Assembly may recommend actions to the 2(4) of the UN Charter prohibits the use of force. Article 51 limits that
Security Council, upon the latter’s request, under Art. 11 and declaration in Article 2(4) about the prohibition to use force because it
Art. 12 (1) of the UN Charter. allows the use of force when done in self-defense.
 Usually done in situations where a member State has
exercised individual or collective self-defense under Art. 51 But first, before we go the right of self-defense, let’s take a look at the
of the Charter and has informed the SC about the use of scope or limitations to the use of force. It is prohibited and it is in fact
force in self-defense. a customary international law as recognized in the case of Nicaragua
vs. US. More often than not, the concept of self-defense will revolve
Gen. Assembly authorizing the UN itself to use force. Wala military around the parameters set forth by the ICJ in Nicaragua vs. US. In
personnel ang UN. These are all provided for by member nations. If fact, one of the issues that you will have to deal with is the “use of
they will go there eithr as UN Security Council forces or they will go force”. If the “use of force” or even the “threat to use force” is
there, let’s say US authorized to use force so dunay US forces prohibited, you need to understand what constitutes “force”.
authorized by Security Council then there will also be security council
forces nga naa pud mga americans. If the US is a member of a mutual In the case of Nicaragua vs. US, there is a suggestion that one should
or collective defense sa treaty then authorized by the Security Council analyze the scope and the intensity. If it is to qualify as force, so that
,naa sad amerikano didto. That is why it is possible, just like in Gulf it may be prohibited, and therefore be considered illegal.
war. It has to be by the Gen. assembly issuing such recommendation
Retorsions and reprisals are considered coercive measures but not Jus Ad Bellum
considered “force” unless reprisal is armed reprisal, in which case it
may be considered as “use of force”. “SELF-DEFENSE”
In relation to this, we ask the question of when is “use of force” 1. Inherent! Case: Caroline case (standard: “necessity of that
allowed, and you’ve learned that it can be allowed only in two self-defense is instant, overwhelming, and leaving no choice
instances: (1) collective decision of the UN (2) used as a result of the of means, and no moment for deliberation”)
exercise of self-defense (whether individual or collective). 2. Recognized by Art. 51 of the UN Charter (already limited and
fixed?)
The UN Charter always uses the word “State” when it comes to “use of 3. Preventive/Anticipatory Self-defense, still contentious
force” or “armed attack”. However, commentators say that it would Case: Nicaragua vs. US, supra; Cuban Missile Crisis; Caroline
not be correct to limit the concept of “force” when the UN Security Standard [Daniel Webster Formulation: “leaving no moment
Council is allowed to use force if it is limited to “states” because it is for deliberation” standard]
possible that the acts of aggression or armed attack may be 4. Self-defense and Claims to Territory, inconsistent
perpetrated by non-state actors such as organized terrorist groups, - See 1970 General Assembly Friendly Relations
even insurgents. Declaration
5. Self-defense and Nuclear Weapons; still broad, not clearly
The idea of “force” as prohibited by the UN Charter and in relation to settled
the exercise of the power of the UN through the Security Council to 6. Self-defense and Rescue of Hostages or Protection of
repel such force does not have to be “force” done or exerted by states. Nationals Abroad; still contentious
7. Self-defense against Non-State Actors (e.g. terrorists), now
The second instance where force may be lawfully used is in case of accepted
self-defense. It may be individual or collective. If you look at Article 8. Self-defense against Armed infiltration and indirect
51, there are certain rules to be observed. One, the exercise of the Aggression [organizing, assisting, fomenting, financing,
right of self-defense is good only until the Security Council has taken inciting, or tolerating subversive or terrorist activities carried
measures. In other words, the moment the Security Council is out against another State]; not yet settled
informed of the acts done pursuant to the exercise of the right to self-
defense, the moment the Security Council steps in, maintain peace and
order, and may effectively control any use of force by the aggressor, In the Caroline case, the threshold or standard enunciated there to be
then the state invoking self-defense should stop and cease using force. able to invoke self-defense is of such generic phrase such as “necessity
So the right to self-defense is limited in scope and also in time. That is of that self-defense is instant, overwhelming, and leaving no choice of
saying that any use of force while the Security Council is already in means, and no moment for deliberation”.
control of the situation may be a questionable act under the
international law. That is if you look into the literal interpretation of The question now is, the limitation to the exercise of the right to self-
Article 51. defense seem to be unwarranted. Why? Because the right to self-
defense is supposedly inherent. Now that this right of self-defense
But Cassese does not necessarily agree, because it should be the state found its way to the UN Charter and the Charter provided thresholds,
invoking self-defense should right away cease to use force the moment do we have to put limitations to the right of self-defense (which is
the Security Council already exerts effort to control the aggressor. supposedly inherent)? Because if this is customary international law,
the treatment is that it (right to self-defense?) should be there, it
These are inherent limitations to the use of force when invoking right should be continued to exist because that is customary international
to self-defense. Of course, there must be the presence of armed law. Now that we have somewhat codified or fixed the right to self-
attack. And in Nicaragua vs. US, “armed attack” should not just any defense, will that give limitations to the exercise of the right to self-
armed attack to warrant the use of force by way of self-defense. defense? Such as the requirement that it should really be instant,
Small-scale armed attack will not warrant the use of force. It should leaving no moment of choice or moment of deliberation?
be, reading the pronouncement of the ICJ in Nicaragua case “such an
attack that is characterized as massive armed attack and endangering
territorial integrity and political independence of the state.” So small For example, in relation to the issue of anticipatory self-defense. The
scale staging of an attack, even if it is armed will not necessarily entitle traditional concept of armed attack is that there is already an armed
the victim state to invoke the right to self-defense and consequently attack. Kay ni.ingon gd siya necessity of that self-defense that is
use force. In other words, we need to know the intensity of the attack instant, overwhelming, and leaving no choice of means, and no
if it could qualify as the kind of armed attack that will necessitate self- moment for deliberation.
defense and the use of force in furtherance of such defense. Second,
still in Nicaragua vs. US, there shall likewise be observance of Diba kabaw namo sa idea sa anticipatory self-defense? Diba mao mani
proportionality, precaution, and military necessity. ang g-invoke sa Israel in relation to operations of Hamas in Gaza?
Unsa man ilang claim? Ang Hamas in Gaza may mga missile sila that
Always remember that not all armed attacks will warrant the use of they will use against Israel. Infact, there were attacks using these
force for right of self-defense. It should be a massive armed attack as missiles although na control sa Israel kay naa silay bag-ong US
explained in Nicaragua vs. US. It could also be widespread, and supported/financed technology. Pero until when man sila mg use ana
probably with the intensity that endangers not only the territorial nga technology if continuous ang aggression on the part of Hamas?
integrity but even political independence.
So, the idea now is, assuming wala nay attack, but there is evidence of
the attack, will international law require that there should be an actual
attack or an actual aggression before self-defense may be invoked? the political and military hierarchy and became the Chief Adviser to
the Minister of Defense. Syrian counter-intelligence authorities
In the past, were methods of warfare were not that sophisticated, eventually uncovered a spy conspiracy, tried and convicted Cohen
kanang idea of actual aggression as a requirement will probably be a under pre-war 'martial law' to death penalty in 1965. The intelligence
proper element of self-defense. But now, means and methods of he gathered is claimed to have been an important factor in Israel's
warfare are becoming more sophisticated. By mere push of a button success.]
you can attack against any state wherever located. Unlike sauna, ang
nearby states lang. Pero karon, even ang opposite part of the globe So, ang PREVENTIVE AND ANTICIPATORY SELF-DEFENSE has not yet
can be an object of a missile attack by a mere push of the button. evolved into a customary international law. But, practiced by some
states.
Nganong issue man na? Can it be a valid argument that the right of
self-defense will now be limited to the requirements set forth in section Self-defense and Nuclear Weapons. You just go to the advisory opinion
51 and also the readings of the ICJ in the Caroline case. Or can you of the ICJ on the validity on the use of nuclear weapons.
argue that since the right to self-defense is an inherent right, and as
you know part of customary international law, it will not lose its Self-defense and rescue of hostages or protection of nationals abroad.
character as customary international law even if it is codified in a Si Cassese made an opinion of converting this into customary
convention? international law but under the strict requirement or threshold:
So are you familiar with this principle? That even a customary 1. Pwede nato i-allow ang rescue of nationals abroad for
international law is codified in a convention, it can co-exist with that limited and very narrow purposes.
convention. 2. Dapat wala nay laing means to rescue or all means have
already been exhausted either peacefully or through
So we have a situation wherein we have a limited right of self-defense diplomatic channels.
under Art. 51 and an expanded right of self-defense in customary 3. After the successful rescue dapat mu stop na daw ang use
international law. Because if it is customary international law, it has to of force. But I don’t think this is a valid subject of Bar exam
be evolving. And this evolution of customary international law may be question.
manifested in treaties and conventions outside of the UN. It could be
regional, multilateral. And as you know, conventions and treaties are What I’m trying to say is that you should remember that it is still
also evidence of the progressive development of customary contentious. You are not to say that this is valid or invalid depending
international law. on the possible justifications for this.
So, I’m bringing this up class, as an issue. So that you when you go Self-defense against Non-State Actors (e.g. terrorists), now acceptable.
home, you will review the basic rules on the use of force. So, So in the case of Nicaragua vs. US, ang decision man gud sa ICJ when
preventive or anticipatory self-defense NOT YET SETTLED. But leading it comes to aggression, ni-mention man gd siya ug state. And
states are advocating for preventive or anticipatory self-defense would according to some commentators, it is wrong to limit lang ang armed
have to be US and Israel. attack sa state. So pwede diay, especially at this time, organized
groups like terrorists are capable of staging massive armed attacks.
Ka remember moa tong 1960s man guro toh nga ang Israel gdungan Mas sophisticated pa na ilang weapons compared to regular members
ug attack ang Egypt ug mga neighboring countries like Jordan because of the armed forces. So that is also accepted.
when they calculated the impending attacks of these neighboring
countries; Egypt, Jordan and Syria. Sa pagcalculate sa Israel, kay pirte Another issue you will take note is about Self-defense against Armed
man gamaya aning Israel, tungod sa kagamay nila, halos tanang infiltration and indirect Aggression. Unsa manang armed infiltration
residents mu undergo ug military training. and indirect aggression? Definitely, if ang armed forces sa State A mu
cross ug border ug mu conduct ug armed attack, way issue. There is
So what they did was, if they would wait for the attack of the 3 an armed attack contemplated by article 51. Pero naa manay,
countries, aw sigurado gyud maluto ang Israel. So ilang gibuhat niuna sometimes naa na daan sa state B. Unya, State A, the attacking state
nalang sila ug attack like sa military installations and stations. So very would either finance, trains, supply or assist in the logistics of
strategic. organizing an armed attack against the central authority of state B. So
that is indirect aggression. Instead of troops crossing the border,
And if you remember, the famous spy of Israel, he was an Israelite ang ilang buhaton kay kadtong mga rebelde sa target state mao to
and he became a defense secretary of Egypt. Liman kag ang ilang spy ilang idevelop in order to stage an attack against the central authority
nahimo ug high ranking official sa ilang opponent. The states counter of state B.
attacks kabaw gyd sila asa tirahon ang military installations. So when
Egypt learn about the plot of Israel nga manira sila ug military Will self-defense be available to the victim state in such a way it is
installations, naghimo sila ug toy aircraft. Kahoy ba. Made of wood. So authorized to use force against state a? No question, if they will use
mao toy tirahan. Dili pa lage sophisticated kay 1960s baya. self-defense against the ACTUAL aggressors, kadtong mga insurgents
or rebels within the state. However will it justify an armed attack
So when Israel conducted the military operations, aw igo tanan. against the supporting state? NOT YET SETTLED.
Kadtong mga fake military installations, wa hilabti. That’s when they
discovered nga naa gyud spy diri somewhere.
[Additional notes by the Transcriber Assigned to this topic: I think sir

was referring to ELI COHEN who was an Israeli spy. He is best known
for his espionage work in 1961 - 1965 in Syria (not Egypt as what DBL
discussed), where he developed close relationships with
Nicaragua (Merits) on Indirect Aggression: armed attack will not warrant self-defense. So the remedy here is UN
through the SC will ask or authorize another State to help the victim
“training or providing economic or military or logistical or other State.
assistance to rebels fighting against the central authority in another
country may be regarded as a threat or use of force or as an In that case therefore, it would have been better if US secured the
intervention in the internal or external affairs of another State. authorization of SC in order to quell the intervention of Nicaragua
However, it does not amount to armed attack (unless the provision of when it supported the rebels in El Salvador. Remember that the scope
significant military support to an insurgency is major and of authority of the SC does not even require actual aggression, as long
demonstrable” (p.195). “Hence, it does not entitle the target State to as there is threat to peace, thus this remedy should have been availed
respond by self-defense against the assisting State” (p. 195, 228, and of rather than invoking self-defense. All other types of “forces” lower
230) than that contemplated in art. 51 would warrant an action on the part
of the SC, but NOT because of the exercise of the right to self-defense.
What’s the legal basis for you answer? If you cannot use force against On Collective Self-Defense
State A, what are the remedies available to the victim State? Is there a
violation of International Law (IL) if another State assists—financially,  Recognized in Art. 51 of the Charter
statistically, logistically—support rebel groups in another country? If  In support of another State which has suffered an armed
yes, would that warrant the use of force in the exercise of self- attack
defense?  The intervening State must not be itself a victim of the armed
attack
[DBL note: this problem might come out in the BAR] State A, State B  Requires (1) prior “bond” (e.g. treaty) or (2) request or
usually belong to one territory, but since they belong to different previous consent of the victim State
ethnicities, they were divided into two groups. Eventually, for  It is for the victim State to establish that it has been militarily
economic reasons, these two States became hostile to each other; attacked (see Nicaragua [merits])
there were cross-border encounters. Eventually, because there were
minorities in State B, State A began supporting, financing, training the
minorities in State B. What are the IL aspects in that problem? The idea of collective self-defense (CSD) usually presupposes a
situation wherein another State comes to the aid of a victim State,
Indeed it is a violation of IL: the principle of non-intervention, and the meaning, the one using force should not be itself the object of the
principle of prohibition against the use of force. You have to go back attack (the victim), otherwise it would be individual self-defense and
to the landmark pronouncement of the ICJ in the case of Nicaragua: not a CSD. If the State is not the object of the attack, and it just came
“training or providing economic or military or logistical or other to the rescue of this victim State, that’s an instance of CSD. Generally,
assistance to rebels fighting against the central authority in another CSD would be justified if there is (1) an agreement, i.e., a prior “bond”
country may be regarded as a threat or use of force or as an (e.g. treaty between the victim State and the helping State) OR (2) the
intervention in the internal or external affairs of another State. victim State makes a request or gives previous consent to a helping
However, it does not amount to armed attack (unless the provision of State; it is also for the victim State to establish that it has been
significant military support to an insurgency is major and militarily attacked not by the one aiding (Nicaragua case). In other
demonstrable” (p.195). “Hence, it does not entitle the target State to words, use of force of another State in favor of a victim State, cannot
respond by self-defense against the assisting State” (p. 195, 228, and be justified if it is without the consent of the victim State because that
230). would qualify as an “intervention”. Remember, there are three
categories of law is PIL: law of peace, law of war, and law of
The facts of the case were as follows: US attacked Nicaragua on the neutrality. States not involved in armed conflict should observe certain
ground that Nicaragua provided economic, military or logistical rules on neutrality. If the helping State intervenes even without the
assistance to the rebels in El Salvador. When US attacked Nicaragua, consent of the victim State, it could be considered as violation of the
US claimed that there was an armed attack by Nicaragua against El laws of neutrality, and considered as an intervention.
Salvador, and El Salvador allegedly sought the help of US, invoking
self-defense. ARMED REPRISALS AGAINST UNLAWFUL SMALL-SCALE USE
OF FORCE
ICJ held that there should be an existence of an armed attack by
Nicaragua against El Salvador that would justify the use of force  Literally, not allowed by Art. 51 in relation to Art. 2(4) of UN
purportedly pursuant to self-defense. Charter
 Has been declared by various Security Council and General
What should the victim State do? Like in this case, what could El Assembly Resolutions as “incompatible with the purpose and
Salvador do if US is its ally, what should they do if they cannot use principles of the United Nations”
force under self-defense (against this indirect aggression)? They are  Commentators and experts suggest that the armed reprisal
not entirely helpless. There are various ways in which force can be should be categorized into: (1) Retaliatory armed force; and (2)
used, provided that it is upon the authority of the Security Council “On-the-spot-reaction” (applying ‘state of necessity’ doctrine, but
(SC). There is a different armed attack threshold requirement for requiring ‘proportionality’ and ‘immediacy’)
armed attack in self-defense from armed attack that would warrant
use of force upon the instance of the SC. To repeat, the force
amounting to armed attack that would justify the use of force pursuant Art 51 presupposes that the armed attack should be massive. So small
to self-defense, therefore an exception to art. 2(4), has a high scale armed attack would not justify the use of self-defense. It is not
threshold for armed attack, mere provision of economic, military, allowed under Art 51 in relation to Art. 2(4) prohibiting the use of
logistical training will not amount to armed attack; even small scale
force. INTERNATIONAL HUMANITARIAN LAW
In many SC (Security Council) and General Assembly resolutions, gina- So those issues, as I have said, are in the category of jus ad bellum
declare nani sila class armed reprisals as a contrary to the purposes of rules engaging in war. Now, when there is armed conflict or war, we
principles of the UN charter. also have another category of rules governing the conduct of hostilities
and this where we talk about IHL. That’s jus in bello not jus ad bellum.
That is why, in order to justify and therefore that you know that it may
be justified, armed reprisal in response to small scale use of force, e- Means of Waging War and Criminal Responsibility: Jus In
categorize nimo ang reprisal: Bello
Number one, (1) there is reprisal that is considered retaliatory. 1. Purposes/objectives of International Humanitarian Law (IHL)
Retaliatory armed force. Ang idea is, the retaliation or reprisal have 2. Meaning of “armed conflict” to which IHL applies
been may after a considerable length of time from the time small scale 3. What if there is no “armed conflict”?
armed attack have been made that is why it is retaliatory. Medyo 4. Fundamental principles that govern conduct of war;
delayed ang response ba, as opposed to what we call (2) on-the-spot- (a) Principle of Distinction;
reaction. Some commentators will give us some example kana daw (b) Principle of Proportionality; and
magpatrol ang military near sa border, attackon dayon na sya sa (c) Principle of Precaution
neighboring and enemy state, justifiable, right away, right there and 5. Means and Methods of Warfare
then mo use sila og force against attacking forces of the enemy state. 6. Other IHL Rules (Sick and Wounded, Detention, etc)
And it will be justified under the State of Necessity doctrine provided 7. Criminal Responsibility
that, again, as the requirements every time armed forces used, there
should be proportionality and immediacy. In other words, use of force
in armed reprisals, may be valid only in a situation where it is called So, here let’s talk about in order to understand the purposes of IHL,
on-the-spot-reaction. May immediacy ba, of course you follow let’s talk about armed conflict which the IHL would apply because IHL
proportionality. Di pud na gi-attack of troops sa border by use of, does not apply to all kinds of armed conflict, only to certain categories
kanang dili mga artilleries, kanang mga handguns lang, di pud pwede of armed conflict. So that, if there is no armed conflict as understood
na tirahan nimog missile as a retaliation because you have to comply in IHL what would be the remedies and what would be the situations.
every time basta use of force with the requirement of proportionality. There are so many rules on IHL, but for purposes of PIL bar exam, the
three important principles are the usual questions ask in bar exams
So, akong balikon, kanang small scale use of force, that will not although naay mga stray questions sometimes. Let’s talk about the
warrant use of force pursuant for self-defense but it will warrant use of three basic principles in IHL: principle of distinction, proportionality
force provided it is categorize as on-the-spot because there was and precaution. The rule is very simple but if you take a look into
immediacy requirement. Use of force there may be justified by the specific provisions medyo complicated xa actually.
state of necessity doctrine. It is a state of necessity doctrine ra rather
than some sort of anticipatory self-defense. Let’s talk about rules in warfare and then we relate also these
principles to other rules. For example, rules on the sick and the
Pero kung ang iyang armed reprisal delayed use of force, there may wounded, detention, displacements and other concerns and then we
not be justified anymore. If the use of force is in the category of finally end with criminal responsibility.
retaliatory armed reprisal then it is unlawful because of Art. 2 par. 4 of
the UN charter prohibiting the use of force. Commentators say that the International Humanitarian Law (IHL) or Law on Armed
other kind of armed reprisal should be justifiable for terrorism for, Conflict
number one state of necessity doctrine. Second one it is not a sound
policy to delay responses because for all we know that is the beginning - IHL or jus in bello, not jus ad bellum. It governs the laws of
of a massive armed attack. So you don’t expect victim state to wait armed conflict or law of war. It primarily seeks to protect
and see kung unsa ni siya, small scale or massive, nya huwaton nya civilian population and objects (to “humanize” the
after one month, ai massive so I can use of force pursuant to self- effects of war) (calls for balancing of “military
defense ky massive naman siya. Commentators say, ok na kung naay necessity” and “humanity”). It covers international or
immediacy. Ky kung naay immediacy then maapply nimo ang state of non-international armed conflict, but not mere internal
necessity doctrine. Pero kung delayed siya, naa pa ky remedies during disturbances.
that time na wa pa ni take og action against the small scale armed
attack against your state. You can go through peaceful processes - E.g. the 1949 Geneva Conventions and Additional Protocols
attack even if gi-attact naka by use of force, go to SC then go to UN. prohibit the “attack on civilian population or objects as such”
Pero after a long period of time,wa pa ni react dn usa pa ka ni use of during armed conflict.
force dn it becomes retaliatory, prohibited na xa under art. 2 par. 4.
What I am saying now is wa ky koy nagdiscuss obvious basic concept
because I assume nga naa na nato, we already know this. Let’s talk on the law on armed conflict, that’s the other term of IHL. It
governs the law on armed conflict in times of war.
In relation to all of this, I think it’s important to know international
huminatarian law kay I was supposedly planning to show other issues Purpose is to seek or protect civilian population or objects from the
like environmental law, human right. Naghisgot naman jud tag war, e- effects of war that’s why it is called the IHL to humanize the effects of
relate nalang nato ning IHL kay related rman. war and therefore the study of IHL calls for a balancing of the concept
of military necessity because the moment there is armed conflict or
war, you know and it is to be understood, that the object or the main
objective of war is really to defeat the opponent. So means and
methods of warfare were really want to be regulated for that purpose conflict.
if you want to humanize the effects of war and therefore so you have
to balance the military necessity and humanity because some means 2nd distinction. Necessarily, International human rights law applies
and methods of warfare may disregard human dignity. A good AT ALL TIMES; in times of peace, and in times of war. IHL is specific;
example of which is the use of weapons that will cause unnecessary only in times of war. But there are however rights that in fact some
sufferings. Maka-use man kag weapon because what is the object of commentators would say that broader ang international human rights
war? dba the object of war is to achieve peace and the only way to law, mas specific ang IHL. But may area sila class na mag overlap.
achieve peace is to defeat the opponent. There are really methods of Because if you look at my notes here, some rights in international
warfare but IHL governs these methods in order to humanize the human rights law may be limited or suspended, an example of which is
effects of war. freedom of expression. So when for example in times of war, the state
or any authority will limit your right to travel, for example, or to
It covers 2 kinds of armed conflict: international and non-international peaceably assemble, like bawal na mag group in times of war, or
armed conflicts. Excluded are internal disturbances, such as riots or probably curfew policies. So pwede ma limit ang some of the rights.
demonstrations and other similar internal disturbances, lacking in
intensity and lacking in organization. BUT- this is where mag converge ang IHRL ug IHL – there are NON-
DEROGABLE RIGHTS that are observed even in times of war. So in
What is International Criminal Law(ICL),on the other hand, because it IHRL, iyang categories kay derogable and non-derogable. Ang kaning
is another category of law that is more or less interrelated with IHL. derogable rights ma limited ni in times of war. To this extent, there’s a
difference between IHRL and IHL. But mag converge sila in regard to
NON-Derogable right such as the right against torture, the prohibition
against inhumane treatment of prisoners, observed in IHRL also
International Criminal Law (ICL) is a body of international observed in IHL.
law that prohibits certain categories of conduct viewed as serious
atrocities and to make the perpetrators of such conduct criminally If you are to distinguish the two, ayaw lang pud ng “applicable both in
accountable. It defines crimes, its elements, and individual criminal times of peace and war ang IHRL, and IHL in times of war.” Ayaw.
responsibility. Probably, the examiner will try to see if you have an idea nga mag
OVERLAP na sila. The above answer is too simplistic. Whereas if you
E.g. Rome Statute creating the International Criminal Court say nga naay areas na mag converge ang IHRL ug IHL, then that
(ICC) in the Hague which defines and punishes genocide, war crimes, means lawm2 imong understanding sa two.
crimes against humanity, and aggression.
*Sir gives advice: One skill you have to learn is to have the eye and
the brain of a surgeon. Tagaan ug general problem, ay sus, general ra
In the course of armed conflict, certain acts of atrocities have been kaayo pag answer. Mura bitaw ang problem para ra mag trigger unsa
categorized as crimes committed during war. Related xa sa IHL in the ang topic all about and tagaan rakas topic, dili bitaw i.solve ang issues
sense nga ang IHL nagregulate xa sa means and methods of warfare sa problem. That might probably ensure a passing score in the bar, but
and at the same time there is another category of law that is created mas mayo unta sobra pas pasar.
or established for the purpose of prosecuting those who have
committed atrocities during armed conflict. So it’s another category in Let’s take a look at the types of armed conflict. (Sir: But na discuss
ICL. naman ni nato. Let’s go straight to the principles.)
So lain ang IHL og lain sa ang ICL. As defined, it is a body of So who and what are the protected persons and objects in IHL;
international law that prohibits certain categories of conduct viewed as Civilians and Civilian Objects. This we will appreciate the moment we
serious atrocities and to make the perpetrators may be held liable. In talk about the different principles in IHL.
the past ICL scattered na xa in various documents, now we have one
document on ICL and that is the Rome Statute created by the Int’s Protected Persons and Objects in IHL:
Criminal Court (ICC).
1. Civilians – persons who do not belong to armed forces and
International Human Rights Law (IHRL) vs. IHL who are not combatants
2. Civilian Objects – objects which are not military objectives.
 IHRL refers to inalienable fundamental rights to which a “Military Objects” are those which by their nature, location,
person is inherently entitled; while IHL refers to the rights of purpose or use make effective contribution to military action
persons affected by armed conflicts and advantage.
 IHRL applies at all times; IHL applies to armed conflicts

Fundamental Principles in IHL
 Some rights in IHRL may be limited or suspended (e.g.
freedom of expression) and some are absolute or non- Principle of Distinction
derogable (e.g. right against torture) Principle of Proportionality
Principle of Precaution
1st distinction. So International human rights law will apply to all One is the Principle of DISTINCTION. Ayaw ra nang “we
persons. Why? Because IHL (International Humanitarian Law) is distinguish civilians from combatants, and civilian objects and military
limited in scope; it will only apply to those persons affected by armed objects.” Butangi sad ug “IN THE CONDUCT OF MILITARY
OPERATIONS, a distinction must be made between these two: civilian
population distinguished from combatants, civilian objects
distinguished from military objects.” Additional Protocol 1 Article 48
governs the principle of distinction. [NOTHING FOLLOWS]
Principle of Distinction
CREDITS:
Art. 48, AP I:
Arnado, Arriesgado, Atuel, Balt, Barcenas, Baya, Bayalas, Biton, Blanco, Borres,
“In order to ensure respect for and protection of the civilian Bristol, Caminade, Canada, Chan, Cinco, Cokaliong, Dente, Diao, Duran-Ybañez,
population and civilian objects, the Parties to the conflict shall at all Ediza, Fiel, Gallego, Gan, Georfo, Gonzalodo, Gregorio, Lao, Lesigues, Lim, A.,
Lim, J., Lulu, Lumapas, Medequiso, Menchavez, Narca, Nardo, Olvis, Ong,
times distinguish between the civilian population and combatants and Ortezuela, Otero, Paglinawan, Pasatiempo, Pena, Plaza, A., Plaza, L., Rejuso,
between civilian objects and military objectives and accordingly shall Robles, Rosales, Salas, Sanchez, Santos, Semillano, Sotto, Susvilla, Tampus,
direct their operations only against military objectives.” Tan-Yu, Tapia, Ubod, Uy, J., Uy, P.
#ONEBATCH
Lawful Targets
 Combatants (except hors de combat)

 Civilians Taking Direct Part in Hostilities
 Military Objects (including civilian objects that lost protection
such as those used for military objective)
In other words, the lawful targets during armed conflict would be:
1.) COMBATANTS, unless they become Hors de combat (combatants

that surrendered, laid their arms, and no longer participate in combat
functions.) So even if originally lawful combatants sila, they will cease
to be when they become Hors de Combat.
2.) Civilians may be a lawful subject or target IF in direct

hostilities. Basic lang gud, Civilians not lawful subject except when
they take direct part in hostilities.
3.) Military Objects. Civilian Objects not a lawful subject,

EXCEPT when these are used for military objectives in which
case these civilian objects will lose their protection. This is important in
view of what is happening in GAZA, in relation to the way Israel makes
their attack on Gaza. If you are up to date, Israel will come out as
violating IHL; schools, hospitals have been attacked. Churches, have
been attacked. If you have not studied IHL, you will say that Israel is
violating IHL. But you that these civilian objects, although generally
enjoying protection may lose such protection if they have been used
militarily. For example, the school has been used as storage for
armaments and weapons. Israel daw has proof that Hamas is storing
weapons in schools and hospitals, and in fact use them as sites for
launching missiles against Israel. Certainly, they will lose that
protection. Mao nay gi tawag ug COLLATERAL DAMAGE RULE.
Civilian Population
Art. 51, AP I:
“1. The civilian population and individual civilians shall enjoy

general protection against dangers arising from military operations. To
give effect to this protection, the following rules, which are additional
to other applicable rules of international law, shall be observed in all
circumstances.
2. The civilian population as such, as well as individual civilians,
shall not be the object of attack. Acts or threats of violence the
primary purpose of which is to spread terror among the civilian
population are prohibited.
3. Civilians shall enjoy the protection afforded by this section,
unless and for such time as they take part in hostilities.”

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So in case of public officer, your answer would depend on the case;

The problematic concept however is the concept of public officer.

Now here, the Supreme Court explained the characteristics of a public

However, in the case of the General Manager of Phil. Port

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Is property qualification valid?

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A. As you know, it is not. This is well settled in the case of Maquera

III. Appointment is different from designation.

But there is a caveat because some appointments use the term

Appointing Authority’s Discretion

• The appointing authority is given ample discretion in the

APPOINTMENT VS. DESIGNATION Permanent vs. Temporary Appointment in Civil Service

So there is not such a thing as a prohibition against midnight

CAREER VS. NON-CAREER SERVICE

“Career” vs. “Non-career” Service

Career – characterized by: (1) merit and fitness test [competitive

Non-career – characterized by (1) not based on competitive exam

RATIONALE: PUBLIC INTEREST; PREVENT HIATUS IN - Motivated by malice

DOCTRINE OF OFFICIAL IMMUNITY

DOCTRINE OF OFFICIAL IMMUNITY

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But, if it is an expropriation by a Local Government Unit, the Code is

Of course, the just compensation will be returned. So that was an

1. Apparently, the SC justices who resolved it were Americans.

“The expropriator should commit to use the property pursuant

A: The law on reclamation mentions that, first you have to distinguish

But if it is B and D (prior authorization and the formal requisites) it is

San Fernando La Union vs Firme case, distinguish government from

SO you need to know when he served and finished serving his

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Concurrent Jurisdiction with Ombudsman

SP members including the Vice Mayor can practice profession with

1998 elections: Was X barred to run as Mayor?

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Adormeo vs. COMELEC (2002)

1995-1998: X was elected and served as Mayor

So X contended that his disqualification in the second term should be

The 2013 case of Abundo, Sr. vs. COMELEC summarized the

LOCAL GOVERNMENT LAW Limbona case, cont’d …

But it was clarified later on in the case of Pimentel that in the

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Confident that Municipality of Consolacion can qualify as a new Barangays: Population

In downgrading (like from independent component city to component Question