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Nachura Notes Constitutional Law

I. GENERAL PRINCIPLES

and by which those powers are


distributed among several departments for
their safe and useful exercise
for the
benefit of the body politic.
2. Purpose
a. Prescribe permanent framework of a
system of government;
b. Assign to several departments their
respective powers and duties
c. Establish certain first principles on
which the government is founded
3. Classification
a. Written precepts are embodied in one
document/ set of documents
Unwritten rules which have not been
integrated into a single, concrete
form
but are scattered in various sources (statutes,
judicial decisions,
commentaries,
customs and traditions, common law
principles).
b. Enacted (Conventional) formally
struck off at a definite time and place
following a conscious or deliberate effort
taken by a constituent body or ruler.
Evolved (Cumulative) result of
political
evolution,
changing
by
accretion rather than by any systematic
method.
c. Rigid amended only by formal and
usually difficult process
Flexible changed by ordinary
legislation
4. Qualities of a good written Constitution
a. Broad comprehensive enough to
provide for every contingency
b. Brief confine to basic principles to be
implemented
c. Definite to prevent ambiguity
5. Essential parts of a good written
Constitution
a. Constitution of Liberty sets forth the
civil and political rights of the citizens and
imposing limitations on the powers of the
government
b. Constitution of Government outlines
the organization of the government;

A. Political Law branch of public law


which deals with the organization and
operations of the governmental organs of the
State and defines the relations of the State
with the inhabitants of its territory.
B. Scope/Division
1. Constitutional Law study of the
maintenance of the proper balance between
authority as represented by the 3 inherent
powers of the State and liberty as guaranteed
by the Bill of Rights
2. Administrative Law Fixes the
organization of the government;
Determines the competence of the
administrative authorities who execute the
law; and
Indicates to the individuals remedies for
the violation of his right.
3. Law on Municipal Corporations
4. Law of Public Officers
5. Election Law
C. Basis of the Study
1. 1935 and 1973 Constitution
2. 1986 Constitution
3. Other organic laws made to apply in the
Philippines
4. Statutes, EOs and decrees, judicial
decisions
5. US Constitution
II. THE PHILIPPINE CONSTITUTION
A. Nature of the Constitution
1. Definition
a. The body of rules and maxims in
accordance with which the powers of
sovereignty are habitually exercised.
b. That written instrument enacted by the
direct action of the people,
by which the fundamental powers of the
government are established, limited
and
defined;

Nachura Notes Constitutional Law

enumerates its powers; and lay down rules


relative to its administration
c. Constitution of Sovereignty points out
the mode or procedure in accordance with
formal changes in the fundamental law may
be brought about
6. Interpretation/Construction
of
the
Constitution
a. Verba legis: given their ordinary
meaning except where technical terms are
employed
b. Ratio legis et anima: ambiguity intent
of the framers, bearing in mind the objects
sought to be accomplished and evils sought
to be prevented; doubtful provision shall be
examined in light of the history of the times
and the conditions and circumstances under
which the Constitution was framed
c. Ut magis valeat quam pereat:
Constitution to be interpreted as a whole
- Safer to construe the Constitution from
what appears upon its face. If, however,
the plain meaning of the word is not found
to be clear, resort to other aids is available.
- In case of doubt, consider provisions as
self-executing; mandatory rather than
directory; and prospective rather than
retroactive.
- Self-executing provisions: one that lays
down principle is usually not self-executing.
That which is complete in itself and
becomes operative without the aid of
supplementary or enabling legislation, or
that which supplies a sufficient rule by
means of which the right it grants may be
enjoyed or protected, is self-executing.
- Self-executing if the nature and extent of
the right conferred and liability imposed are
fixed by the Constitution itself.
- Section 26, Article II of the Constitution
does NOT contain judicially enforceable
constitutional rights.
B. Brief Constitutional History
1. Malolos Constitution
2. American Regime and Other Organic
Acts

3.
4.
5.
6.

1935 Constitution
Japanese Occupation
1973 Constitution
1987 Constitution

C. Amendment
1. Amendment isolated or piecemeal
change in the Constitution
Revision revamp or rewriting of the
entire instrument
2. Legislative Power merely provides
details for implementation
3. Steps
a. Proposal
- Congress, of ALL its members
understood as of Senate and of HRs
- Constitutional Convention, called into
existence by 2/3 a vote of all the members of
Congress with the question of whether or
not to call a convention to be resolved by the
people in a plebiscite
- People through Power of Initiative,
petition of at least 12% of the total number
of registered voters, of which every
legislative district must be represented by at
least 3% of the registered voters therein
power of the people to propose amendments
to the Constitution or to propose and enact
legislation through an election called for that
purpose
Limitation: No amendment w/in 5 years
following the ratification of this Constitution
nor more than once every five years
thereafter.
3 systems of initiative:
(1) Initiative on the Constitution
(2) Initiative on Statutes
(3) Initiative on Local Legislation
- Choice of method of proposal is within
the full discretion of the legislature
- 3 Theories on the position of a
Constitutional Convention vis--vis the
regular departments of government
(1) Theory of Conventional Sovereignty
(2) Convention is inferior to other
departments

Nachura Notes Constitutional Law

(3) Independent of and co-equal to the other


departments
b. Ratification
- Ratified by a majority of the votes cast
in a plebiscite held not earlier than 60 nor
later than 90 days after the approval of the
proposal by Congress or the Constitutional
Convention, or after the certification by the
COMELEC of the sufficiency of the
initiative.
- Doctrine
or
proper
submission:
Constitution prescribes the time frame
within which the plebiscite is to be held,
there can no longer be any question on
whether the time given to the people to
determine the merits and demerits of the
proposed amendment is adequate.
- Plebiscite may be held on the same day
as a regular election.
- Entire Constitution must be submitted
for ratification at one plebiscite only.
- The people have to be given a proper
frame of reference in arriving at their
decision.
4. Judicial Review of Amendments issue
is whether or not the constitutional
provisions had been followed.

- Constitutional appellate jurisdiction of


the SC and implicitly recognizes the
authority of lower courts to decide questions
involving the constitutionality of laws,
treaties, agreements, etc.
- Notice to SolGen is mandatory to enable
him to decide whether or not his
intervention in the action is necessary.
3. Functions of Judicial Review
(1) Checking
(2) Legitimizing
(3) Symbolic
4. Requisites
(1) Actual case or controversy
(2) Constitutional question must be raised
by the proper party
- A partys standing in court is a
procedural technicality which may be set
aside by the Court in view of the importance
of the issues involved; paramount public
interest/transcendental importance
- Present substantial interest such
interest of a party in the subject matter of the
action as will entitle him under substantive
law, to recover of the evidence is sufficient,
or that he has a legal title to defend and the
defendant will be protected in payment to or
recovery from him.
- A taxpayer, or group of taxpayers, is a
proper party to question the validity of a law
appropriating public funds.
- 2 Requisites for Taxpayers Suit:
(1) Public funds are disbursed by a political
subdivision or instrumentality
(2) A law is violated or irregularity is
committed
(3) Petitioner is directly affected by the ultra
vires act
- The Government is a proper party to
question the validity of its own laws,
because more than any one, it should be
concerned with the constitutionality of its
acts

E. The Power of Judicial Review


1. Judicial Review power of the courts to
test the validity of executive and legislative
acts in light of their conformity with the
Constitution.
- Power is inherent in the Constitution.
- Section 1, Article VII of the
Constitution: Judicial power includes the
duty of the courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable, and to
determine whether or not there has been a
grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any
branch or instrumentality of Government.
2. Who may exercise
- Power of the SC to decide constitutional
questions.

Nachura Notes Constitutional Law

- Legislature must be willing to retain the


valid portions separability clause
- Valid portion can stand independently as
law

The established rule is that a party can


question the validity of a statute only if, as
applied to him, it is unconstitutional.
Exception: Facial Challenge, when it
operates in the area of freedom of
expression.
Overbreadth Doctrine: permits a party to
challenge the validity of a statute even
though, as applied to him, it is not
unconstitutional, but it might be if applied to
other not before the Court whose activities
are constitutionally protected.
Invalidation of the statute on its face,
rather than as applied is permitted in the
interest of preventing a chilling effect on
freedom of expression.
Facial challenge is the most difficult
challenge because the challenge must
establish that no set of circumstances exists
under which the act would be valid.
- The constitutional question must be
raised at the earliest possible opportunity
- The decision on the constitutional
question must be determinative of the case
itself.
- Bars judicial inquiry into a constitutional
question
unless
the
resolution
is
indispensable to the determination of the
case.
- Every law has in its favor the
presumption of constitutionality, and to
justify its nullification, there must be a clear
and unequivocal breach of the Constitution.

III. THE PHILIPPINES AS A STATE


State: a community of persons, more or less
numerous, permanently occupying a definite
portion of territory, independent of external
control and possessing a government to
which a great body of inhabitants render
habitual obedience.
State is a legal or juristic concept; nation is
an ethnic or racial concept.
Government is an instrumentality of the
State through which the will of the State is
implemented and realized.
Elements:
(1) People
(2) Territory
Components:
1) Terrestrial
2) Fluvial
3) Maritime
4) Aerial
(3) Government
(4) Sovereignty
Archipelago Doctrine: the waters around,
between and connecting the islands of the
archipelago, regardless of their breadth and
dimensions, form part of the internal waters
of the Philippines.

5. Effects
of
Declaration
of
Unconstitutionality
- Orthodox View: unconstitutional act is
not a law, it confers no rights and imposes
no duties; it affords no protection, creates no
office; it is inoperative as if it had not been
passed at all.
- Modern View: certain legal effects of the
statute prior to its declaration of
unconstitutionality may be recognized.
6. Partial Unconstitutionality

Straight Baseline Method: Imaginary


straight lines are drawn joining the
outermost points of outermost islands of the
archipelago, enclosing an area the ratio of
which should not be more than 9:1; provided
that the drawing of the baselines shall not
depart, to any appreciable extent, from the
general configuration of the archipelago.
Functions of the Government:

Nachura Notes Constitutional Law

(1) Constituent mandatory for the


Government to perform because they
constitute the very bonds of society
(2) Ministrant intended to promote the
welfare, progress and prosperity of the
people and which are merely optional for
Government to perform

2) Internal supreme power over


everything within the territory
External/Independence freedom from
external control
1)
2)
3)
4)
5)
6)
7)

Doctrine of Parens Patriae: parents of the


people; the Government may act as guardian
of the rights of the people who may be
disadvantaged or suffering from some
disability or misfortune.
Classification
(1) De jure
De facto Kinds
1) Takes possession or control of, or
usurps, by force or by the voice of the
majority, the rightful legal government and
maintains itself against the will of the latter;
2) Established by the inhabitants of a
territory who rise in insurrection against the
parent state; and
3) Established by invading forces of an
enemy who occupy a territory in the course
of war (de facto government of paramount
force).
(2) Presidential separation of executive
and legislative powers
Parliamentary fusion of both executive
and legislative in Parliament; actual
exercise of executive powers is vested in
a Prime Minister who is chosen by, and
accountable to the Parliament
(3) Unitary
Federal

Characteristics:
Permanence
Exclusiveness
Comprehensiveness
Absoluteness
Indivisibility
Inalienability
Imprescriptibility

Effects of Change in Sovereignty:


Political laws are abrogated; municipal laws
remain in force
Effects of Belligerent Occupation: No
change in sovereignty.
Political laws, except the law on treason,
are suspended;
Municipal laws remain in force unless
repealed by belligerent occupant;
At the end of belligerent occupation,
political laws shall automatically become
effective
again
(doctrine
of
jus
postliminium)
Dominium capacity to acquire or own
property
Imperium authority possessed by the
State embraced in the concept of
sovereignty
Jurisdiction
Territorial: power of the State over
persons and things within its territory.
Exemption:
(1) Foreign states, head of states, diplomatic
representatives and consuls to a certain
degree;
(2) Foreign state property, including
embassies, consulates and public vessels
engaged in non-commercial activities;
(3) Acts of state

Sovereignty: supreme and uncontrollable


power inherent in a State by which that State
is governed
Kinds:
1) Legal power to issue final commands
Political sum total of all the influences
which lie behind the law

Nachura Notes Constitutional Law

(4) Foreign merchant vessels exercising the


rights of innocent passage or involuntary
entry such as arrival under stress
(5) Foreign armies passing through or
stationed in its territory with its permission;
and
(6) Other persons or property, including
organizations like the UN, over which it
may, by agreement, waive jurisdiction.

Personal: power of the State over its


nationals, which may be exercised by the
State even of the individual is outside the
territory of the State.

Test to Determine if Suit is Against the State


Whether it requires an affirmative act
from the state.

Royal Prerogative of Dishonesty: There


can be no legal right against the authority
which makes the law on which the right
depends. It may be sued if its gives consent.
Par in parem non habet imperium:
Immunity is enjoyed by other States. The
Head of the State, who is deemed the
personification of the State, is inviolable and
enjoys immunity.

Suit against Government Agencies


1. Incorporated if the charter provides
that the agency can sue and be sued, then
suit will lie, including one for tort. The
provision in the charter constitutes express
consent on the part of the State to be sued.
Municipal corporations, agencies of the
state when they are engaged in
governmental functions and should enjoy
sovereign immunity from suit. They are
subject to suit even in the performance of
such functions because their respective
charters provide that they can sue and be
sued. (Section 22 LGC)
2. Unincorporated inquire into the
principal functions
If governmental: no suit without consent
If proprietary: suit will lie, because when
the State engages in principally proprietary
functions, then it descends to the level of a
private individual, and may therefore be
vulnerable to suit.

Extraterritorial: power exercised by


the State beyond its territory,
example:
(1) Assertion of its personal jurisdiction
over its nationals abroad or the exercise of
its right to punish offenses committed
outside its territory against its national
interests even if the offenders are nonresident aliens;
(2) By virtue of its relations with other
states/territories (as when it establishes a
colonial protectorate or a condominium or
administers a trust territory or occupies
enemy territory in the course of war);
(3) Local state waives jurisdiction over
persons and things within its territory;
(4) Principle of extraterritoriality
(5) Enjoyment of easements or servitudes
(easement of innocent passage or arrival
under stress)
(6) Exercise of jurisdiction by the state in
the high seas over its vessels, over pirates, in
the exercise of the right to visit and search,
and under doctrine or hot pursuit;
(7) Exercise of limited jurisdiction over the
contiguous zone and the patrimonial sea, to
prevent infringement of its customs, fiscal,
immigration or sanitary regulations.

Suit Against Public Officers: The doctrine of


state immunity also applies to complaints
filed against officials of the State for acts
performed by them in the discharge of their
duties within the scope of their authority.
Exceptions: (may be sued without prior
consent from State)
1. to compel him to do an act required by
law;

State Immunity from Suit: The State cannot


be sued without its consent.

Nachura Notes Constitutional Law

2. to restrain him from enforcing an act


claimed to be unconstitutional;
3. to compel the payment of damages from
an already appropriated assurance fund or to
refund tax over-payments from a fund
already available for the purpose;
4. to secure a judgment that the officer
impleaded may satisfy by himself without
the State having to do a positive act to assist
him;
5. where government itself has violated its
own laws, because the doctrine of state
immunity cannot be used to perpetrate an
injustice

3. Power of Taxation
Similarities
1. inherent in the state, without need of
express constitutional grant
2. necessary and indispensable
3. methods by which the state interferes
with private property
4. presupposes equivalent compensation
5. exercised primarily by legislature

Scope of consent: consent to be sued does


not include consent to the execution of
judgment against it. Such execution will
require another waiver.

Distinctions
1. Police power regulates liberty and
property
Eminent domain and taxation affects
only property rights
2. Police power and taxation are exercised
only by government
Eminent domain may be exercised by
private entities
3. Property taken in police power is usually
noxious or intended for noxious purposes
and may be destroyed
In eminent domain and taxation, the
property is wholesome and devoted to public
use/purpose.
4. Compensation in police power is the
intangible, altruistic feeling that the
individual has contributed to the public
good;
In eminent domain, it is the full and fair
equivalent of the property taken;
In taxation, it is the protection given
and/or public improvements instituted by
government for taxes paid.

Suability is not equated with outright


liability. Liability will have to be determined
by the court on the basis of the evidence and
the applicable law.

Limitations
1. Bill of Rights
2. Courts may annul improvident exercise
of police power

IV. FUNDAMENTAL POWERS


THE STATE
Inherent powers of the State
1. Police Power
2. Eminent Domain

Police Power
Power of promoting public welfare by
restraining and regulating the use of liberty
and property.

Where a public officer has committed an


ultra vires act, or there is a showing of bad
faith, malice or gross negligence, then the
officer can be held personally accountable.
In order that suit may lie against the state,
there must be consent. Where no consent is
shown, state immunity from suit may be
invoked as a defense by the courts sua
sponte at any stage of the proceedings.
Express consent: general law or special
law
Implied consent
1. state commences a litigation
2. state enters into a business contract

OF

Nachura Notes Constitutional Law

Who may exercise the power


Congress
By
delegation,
the
President,
administrative bodies, LGUs and even
private enterprises performing public
services

Most pervasive, least limitable and most


demanding of the three powers.
Justification: salus populi est suprema
lex and sic utere tuo ut alienum non laedas

Who may exercise?


Inherently vested in Legislature
Congress may validly delegate this
power to the President, administrative
bodies and to lawmaking bodies of LGUs.
LGUs exercise this power under the
general welfare clause

Requisites
(1) Necessity
(2) Private Property, except money and

choses in action
(3) Taking in the constitutional sense
(4) Public use
(5) Just Compensation full and fair
equivalent of the property taken; fair market
value of the property

Limitations (test for valid exercise)


Lawful subject: interest of the public;
activity or property sought to be regulated
affects the general welfare; if it does then
the enjoyment of the rights flowing
therefrom may have to yield to the interest
of the greater number.
Lawful means: means employed are
reasonably
necessary
for
the
accomplishment of the purpose and not
unduly oppressive on individuals.
Express grant by law
Within territorial limits (for LGUs
except when exercised to protect water
supply)
Must not be contrary to law

Judicial Prerogative
Ascertainment of what constitutes just
compensation for property taken in eminent
domain cases is a judicial prerogative.
Form of Compensation
Paid in money and no other form.
In agrarian reform, payment is allowed
to be made partly in bonds because under
the CARP, we do not deal with the
traditional exercise of the power of eminent
domain; we deal with a revolutionary kind
of expropriation.

For Municipal Ordinances to be Valid:


(1) Must not contravene the Constitution or
the statute
(2) Must not be unfair or oppressive
(3) Must not be partial or discriminatory
(4) Must not prohibit but may regulate trade
(5) Must not be unreasonable
(6) Must be general in application and
consistent with public policy

Reckoning point of market value of the


property
Date of the taking or the filing of the
complaint, whichever comes first.
Principal criterion in determining just
compensation
Character of the land at the time of the
taking

Power of Eminent Domain (Power of


Expropriation)

Entitlement of owner to interest


When there is delay in the payment of
just compensation, the owner is entitled to
payment of interest if claimed; otherwise,
interest is deemed waived;

Jurisdiction
RTC

Nachura Notes Constitutional Law

Interest is 6% per annum, prescribed in


Article 2209 of the CC, NOT 12% per
annum under Central Bank Circular No.
416, latter applies to loans or forbearances
of money, goods or credits or judgments
involving such loans or forbearance of
money, goods or credits. The kind of interest
here is by way of damages.
In some expropriation cases, the court
imposes 12% damages for delay in
payment which, in effect, makes the
obligation on the part of government one of
forbearance.

Right to repurchase or re-acquire the


property
Property owners right to repurchase the
property depends upon the character of the
title acquired by the expropriator: if land is
expropriated for a particular purpose with
the condition that when that purpose is
ended or abandoned, the property shall
revert to the former owner, the former owner
can re-acquire the property.
Lands for socialized housing are to be
acquired in the following order:
(1) Government lands
(2) Alienable lands of the public domain
(3) Unregistered, abandoned or idle lands;
(4) Lands within the declared Areas for
Priority Development, Zonal Improvement
Program sites, Slum Improvement and
Resettlement sites which have not yet been
acquired;
(5) BLISS sites which have not yet been
acquired; and
(6) Privately owned lands

Who else may be entitled to just


compensation
Owner
Those who have lawful interest

Title to the property


Does not pass until after payment

Right of landowner in case of nonpayment of just compensation


Does not entitle to recover possession of
the expropriated lots
Only to demand payment of the FMV of
the property
Due process of law
Defendant must be given an opportunity
to be heard

The mode of expropriation is subject to 2


conditions:
(1) Resorted to only when the other modes
of acquisition have been exhausted
(2) Parcels owned by small property owners
are exempt from such acquisition

Writ of Possession, ministerial upon:


(1) Filing of complaint for expropriation
sufficient in form and substance
(2) Upon deposit by the government of the
amount equivalent to 15% of the FMV of
the property per current tax declaration

Small property owners:


(1) Owners of residential lots not more than
300 sq. m. in highly urbanized cities and not
more than 800 sq. m. in other urban areas
(2) They do not own residential property
other than the same

The plaintiffs right to dismiss the


complaint has always been subject to Court
approval and to certain conditions,
because the landowner may have already
suffered damages at the start of the
taking.

Power of Taxation

Who may exercise


Legislature
Local legislative bodies

Nachura Notes Constitutional Law

amount of tax may be unlimited provided it


is not confiscatory
License fee is paid for the privilege of
doing something and may be revoked when
public interest so requires; tax is imposed on
persons or property for revenue

To a limited extent, the President, when


granted delegated tariff powers

Limitations on the exercise


Due process of law, must not be
confiscatory
Equal protection clause, must be uniform
and equitable
Public purpose

Kinds of license fee


(1) For useful occupation/enterprises
(2) Non-useful occupation/enterprises (when
used to discourage, it may be a bit
exorbitant)

Double taxation
Additional taxes are laid on the same
subject by the same taxing jurisdiction
during the same taxing period and for the
same purpose.

V. PRINCIPLES AND STATE POLICES


Preamble
Does not confer rights nor impose duties
Indicates authorship of the Constitution
Enumerates the primary aims and
aspirations of the framers
Serves as an aid in the construction of
the Constitution

Tax Exemptions
No law granting tax exemption shall be
passed without the concurrence of a majority
of all the Members of Congress.
Charitable institutions, churches and
parsonages or convents appurtenant thereto,
mosques, non-profit cemeteries, and all
lands, buildings and improvements actually,
directly and exclusively used for religious,
charitable or educational purposes
exempt
Revenues and assets of non-stock, nonprofit educational institutions used actually,
directly and exclusively for educational
purposes exempt
Proprietary educational institutions
may be exempt subject to limitations
provided by law
Grants, endowments, donations, or
contributions used actually, directly, and
exclusively for educational purposes
exempt

Republicanism
The Philippines is a democratic and
republican state. Sovereignty resides in the
people and all government authority
emanates from them.
Essential features
(1) Representation
(2) Renovation
Manifestations
(1) Government of law and not of men
(2) Rule of majority
(3) Accountability of public officials
(4) Bill of rights
(5) Legislature cannot pass irrepealable laws
(6) Separation of powers
Purpose
To prevent concentration of authority in
one person or group of persons that might
lead to an irreversible error or abuse in its
exercise to the detriment of republican
institutions.

Police Power vs. Taxation


License fee v. Tax license fee is a
police measure; tax is revenue measure
Amount collected for a license fee is
limited to the cost of permit and reasonable
police regulation (except when the license
fee is imposed on a non-useful occupation);
10

Nachura Notes Constitutional Law

Principle of Blending of Powers


Instances when powers are not confined
exclusively within one department but are
assigned to or shared by several
departments.

(3) Delegation to the people specific


provisions where the people have reserved
to themselves the function of legislation
Referendum: power of the electorate to
approve or reject legislation through an
election called for the purpose; referendum
on statutes and referendum on local law
Plebiscite: electoral process by which an
initiative on the Constitution is approved or
rejected by the people.
(4) Delegation to LGUs
(5) Delegation to Administrative Bodies
power of subordinate legislation
Tests for valid delegation
(1) Completeness test: the law must be
complete in all its essential terms and
conditions when it leaves the legislature so
that there will be nothing left for the
delegate to do when it reaches him except to
enforce it.
(2) Sufficient standard test: intended to map
out the boundaries of the delegates
authority by defining the legislative policy
and indicting the circumstances under which
it is up be pursued and effected; the
standards usually indicated in the law
delegating legislative power.

Principle of Checks and Balances


This allows one department to resist
encroachments upon its prerogatives or to
rectify mistakes or excesses committed by
the other departments.
Doctrine of Necessary Implication
Absence of express conferment, the
exercise of the power may be justified under
this doctrine, that the grant of an express
power carries with it all other powers that
may be reasonably inferred from it.
A purely justiciable question implies a given
right, legally demandable and enforceable,
an act or omission violative of such right,
and a remedy granted and sanctioned by law
for said breach of right.
Political question is a question of policy. It
refers to those questions which, under the
Constitution, are to be decided by the people
in their sovereign capacity, or in regard to
which full discretionary authority has been
delegated to the legislative or executive
branch of government. It is concerned with
issues dependent upon wisdom, not legality
of particular measure.

The Incorporation Clause


The Philippines renounces war as an
instrument of national policy, adopts the
generally
accepted
principles
of
international law as part of the law of the
land, and adheres to the police of peace,
equality, justice, freedom, cooperation and
amity with all nations.
Independent foreign policy and nuclearfree Philippines
Expiration of Bases Agreement
Renunciation of War
(1) Covenant of the League of Nations
(2) Kellogg-Briad Pact of 1928
(3) Charter of the United Nations
Doctrine of Incorporation our courts
have applied the rules of international law in
a number of cases even of such rules had not

Delegation of powers
Potestas delegate non potest delegare
Delegated power constitutes not only a
right but a duty to be performed by the
delegate through the instrumentality of his
own judgment and not through the
intervening mind of another.
Permissible delegation
(1) Tariff powers to the president
(2) Emergency powers to the president (in
times of war or national emergency)

11

Nachura Notes Constitutional Law

previously been subject of statutory


enactments, because these generally
accepted principles of international law are
automatically part of our own laws.

penal institution or government orphanage


or leprosarium
(3) Section 3(3), Article 14: Optional
religious instruction for public elementary
and high school studies
(4) Section 4(2), Article 14: Filipino
ownership requirement to educational
institutions, except those established by
groups and mission boards

Civilian Supremacy
Civilian authority is, at all times
supreme over the military. The AFP is the
protector of the people and the State. Its goal
is to secure the sovereignty pf the State and
integrity of the national territory.

Independent Foreign Policy and Nuclearfree Philippines


State shall pursue an independent
foreign policy. In relations with other states,
the paramount consideration shall be
national sovereignty, territorial integrity,
national interest and the right to selfdetermination.
The Philippines consistent with the
national interest, adopts and pursues a policy
of freedom from nuclear weapons in its
territory.

Duty of Government; people to defend the


State
The prime duty of the Government is to
serve and protect the people.
The Government may call upon the
people to defend the State and, in the
fulfillment thereof, all citizens may be
required, under conditions provided by law,
to render personal military or civil service.
The maintenance of peace and order, the
protection of life, liberty and property, and
the promotion of the general welfare are
essential for the enjoyment by all the people
of the blessings of democracy.
Right to Bear Arms:
constitutional right.

statutory,

Just and dynamic social order


State shall promote a just and dynamic
social order that will ensure prosperity and
independence of the nation and free the
people from poverty through policies that
provide adequate social services, promote
full employment, a rising standard of living
and an improved quality of life for all.

not

Separation of Church and State


Freedom of religion clause
Religious sect cannot be registered as
political party
No sectoral representative from the
religious sector
Prohibition against appropriation for
sectarian benefit

Promotion of Social Justice


Promote social justice in all phases of
national development
Respect for human dignity and human rights
State values the dignity of every human
person and guarantees full respect for human
rights.

Exceptions
(1) Section 28(3), Article 6: Exemption
from taxation
(2) Section 29(2), Article 6: Prohibition
against sectarian benefit, except when priest
is assigned to the armed forces or to any

Family and Youth


The State recognizes the sanctity of
family life and shall protect and strengthen
the family as a basic autonomous social
institution. It shall equally protect the life of

12

Nachura Notes Constitutional Law

the mother and the life of the unborn from


conception. The natural and primary right
and duty of parents in the rearing of the
youth for civic efficiency and the
development of moral character shall
receive support of the Government.
The State recognizes the vital role of the
youth in nation-building and shall promote
and protect their physical, moral, spiritual,
intellectual and social well-being. It shall
inculcate in the youth patriotism and
nationalism,
and
encourage
their
involvement in public and civic affairs.

The State recognizes the indispensable


role of the private sector, encourages private
enterprise, and provide incentives to needed
investments.

Land reform
State shall promote comprehensive rural
development and agrarian reform.
Indigenous cultural communities
State recognizes and promotes the rights
of indigenous cultural communities within
the framework of national unity and
development.

Fundamental equality of men and women


State recognizes the role of women in
nation-building and shall ensure the
fundamental equality before the law of men
and women.

Independent peoples organizations


State shall encourage non-governmental,
community-based, or sectoral organizations
that promote the welfare of the nation.

Promotion of health and ecology


State shall protect and promote the right
to health of the people and instill health
consciousness among them.
The State shall protect and advance the
right of the people to a balanced and
healthful ecology in accord with the rhythm
and harmony of nature.

Communication and information in nationbuilding


State recognizes the vital role of
communication and information in nationbuilding.
Autonomy of local governments
State shall ensure the autonomy of local
governments.
Decentralization and does not make the
local governments sovereign within the
State or an imperium in imperio.
Decentralization
of administration:
delegation of administrative powers to the
LGU in order to broaden the base of
governmental powers.
Decentralization of power: abdication by
the national government of governmental
powers.

Priority to education, science, technology,


etc.
State shall give priority to education,
science and technology, arts, culture and
sports, to foster patriotism and nationalism,
accelerate social progress, and promote total
human liberation and development.
Protection to Labor
State affirms labor as a primary social
economic force. It shall protect the rights or
workers and promote their welfare.

Equal access of opportunities for public


service
State shall guarantee equal access of
opportunities for public service and prohibit
political dynasties as may be defined by law.

Self-reliant and independent economic order


State shall develop a self-reliant and
independent national economy effectively
controlled by Filipinos.

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Nachura Notes Constitutional Law

Honest public service and full public


disclosure
State shall maintain honesty and
integrity in the public service and take
positive and effective measures against graft
and corruption.
State adopts and implements a policy of
full public disclosure of all its transactions
involving public interest.

Guarantee extends to aliens and includes


the means of livelihood

Meaning of life, liberty and property


Life: right of an individual to his body in
its completeness, free from dismemberment
and extends to the use of God-given
faculties which makes life enjoyable
Liberty: the right to exist and the right to
be free from arbitrary personal restraint or
servitude; includes the right to be free to use
his faculties in all lawful ways
Property: anything that can come under
the right of ownership and can be subject of
contract; the right to secure, use and dispose
them.

VI. BILL OF RIGHTS


Definition
Set of prescriptions setting forth the
fundamental civil and political rights of the
individual, and imposing limitations on the
powers of government.
Generally, any government action in
violation of the Bill of Rights is void.
Generally self-executing.

Aspects of due process


1. Substantive

restriction
on
governments law- and rule-making powers
Requisites:
1. interest of the public
2. means
employed are reasonably
necessary for the accomplishment of the
purpose and not unduly oppressive on
individuals
2. Procedural restriction on actions of
judicial and quasi-judicial agencies of
government
Requisites:
1. impartial court or tribunal clothed with
judicial power to hear and determine the
matter before it
2. jurisdiction must be lawfully acquired
over the person of the defendant and over
the property which is the subject matter of
the proceeding
3. the defendant must be given an
opportunity to be heard
4. judgment must be rendered upon lawful
hearing

Civil Rights
Right that belong to every citizen of the
state or country and are not connected with
the organization or administration of
government.
Political Rights
Right to participate, directly
indirectly, in the establishment
administration of government.

or
or

Due Process of Law: No person shall be


deprived of life, liberty or property without
due process of law
Definition
A law which hears before it condemns,
which proceeds upon inquiry and renders
judgment only after trial.
Who are protected
Universal in application to all persons
Artificial persons are covered by the
protection only insofar as their property is
concerned

Publication as part of due process


Publication is imperative to the validity
of laws, PDs and Eos, administrative rules

14

Nachura Notes Constitutional Law

and regulation and is an indispensable part


of due process.

Equal Protection of the Laws


Meaning
All persons or things similarly situated
should be treated alike, both as to rights
conferred and responsibilities imposed.
Natural and juridical persons are entitled
to this guarantee.
With respect to juridical persons, they
enjoy the protection only insofar as their
property is concerned.

Appeal and due process


Appeal is not a natural right nor is it part
of due process; it may be allowed or denied
by legislature in its discretion.
But where the Constitution gives a
person the right to appeal, denial of such
constitutes a violation of due process.

Preliminary investigation and due


process
Right to preliminary investigation is not
a constitutional right, but it is merely a right
conferred by statute.
But where there is a statutory grant of
the right to preliminary investigation, denial
of such constitutes a violation of due
process.

Scope of Equality
Economic
(1) Free access to courts
(2) Marine wealth reserved for Filipino
citizens
(3) Reduction of social, economic and
political inequalities
Political
(1) Free access to courts
(2) Bona fide candidates being free from
harassment/discrimination
(3) Reduction of social, economic and
political inequalities
Social

Administrative due process


Requisites
(1) Right to a hearing, includes the right to
present ones case and submit evidence in
support thereof;
(2) Tribunal must consider the evidence
presented;
(3) Decision must have something to
support itself;
(4) Evidence must be substantial;
(5) Decision must be rendered on the
evidence presented or at least contained in
the records and disclosed to the parties;
(6) Tribunal or any of its judges must act on
its own or his own independent
consideration of the facts and the law of the
controversy, and not simply accept the
views of a subordinate in arriving at a
decision; and
(7) The board or body should, in all
controversial questions, render its decision
in such a manner that the parties to the
proceeding will know the various issues
involved, and the reason for the decision.

Valid Classification
(1) Substantial distinctions
(2) Germane to the purpose of the law
(3) Not limited to existing conditions only
(4) Must apply equally to all members of the
same class
Searches and Seizures
Scope
Available to all persons, including
aliens, whether accused of a crime or not.
Artificial persons are also entitled to the
guarantee, although they may be required to
open their books of accounts for
examination by the State in the exercise of
police and taxing powers.
Right is personal
Objection must be raised before the
accused enters his plea

15

Nachura Notes Constitutional Law

cause and, on the basis thereof, issue a


warrant of arrest; or
(2) If on the basis thereof, he finds no
probable cause, he may disregard the
prosecutors report band require the
submission of supporting affidavits of
witnesses.

Procedural Rules
1. warrantless arrest is not a jurisdictional
defect and any objection thereto is waived
when the person arrested submits to
arraignment without any objection;
2. where a criminal case is pending, the
Court wherein it is filed, or the assigned
branch, has primary jurisdiction to issue the
search warrant;
3. where no criminal case has been filed,
the executive judges or their lawful
substitutes, in the areas and for the offense
contemplated
shall
have
primary
jurisdiction;
4. moment the information is filed with the
RTC, it is that court which must issue the
warrant of arrest;
5. the judge may order the quashal of a
warrant he issued even after the same had
already been implemented, particularly
when such quashal is based on the finding
that there is no offense committed items
seized shall be inadmissible in evidence

Principles:
(1) The determination of probable cause is a
function of the judge
(2) The preliminary inquiry made by the
prosecutor does not bind the judge, as it is
the report, affidavits, the transcript of
stenographic notes and all other supporting
documents
behind
the
prosecutors
certification which are material in assisting
the judge in his determination of probable
cause
(3) Judges
and
prosecutors
should
distinguish the preliminary inquiry which
determines probable cause for the issuance
of the warrant of arrest from the preliminary
investigation proper which ascertains
whether the offender should be held for trial
or be released
(4) Only a judge may issue a warrant of
arrest

Only a judge may issue a warrant


Exception: order of arrest may be issued
by administrative authorities but only for the
purpose of carrying out a final finding of a
violation of law, e.g. an order of deportation
or an order of contempt but not for the sole
purpose of investigation or prosecution.

Judge himself conducts the preliminary


investigation, for him to issue a warrant of
arrest, the investigating judge must:
(1) Have examined, under oath, the
complainant and the witnesses;
(2) Be satisfied that there is probable cause;
and
(3) That there is a need to place the
respondent under immediate custody in
order not to frustrate the ends of justice

Requisites for a Valid Warrant


(1) Probable cause
(2) Determination of probable cause
personally by the judge
(3) After examination under oath or
affirmation of the complainant and the
witnesses he may produce
(4) Particularity of description

Particularity of Description:
(1) Readily identify the properties to be
seized and thus prevent them from seizing
the wrong items; and

The judge shall


(1) Personally evaluate the report and the
supporting documents submitted by the
fiscal regarding the existence of probable

16

Nachura Notes Constitutional Law

(2) Leave peace officers with no discretion


regarding the articles to be seized and thus
prevent unreasonable searches and seizures.

establishment or place where he is serving


final judgment or temporarily confined
while his case is pending, or has escaped
while being transferred from one
confinement to another; and
(4) When the right is voluntarily waived.

Warrant of Arrest particularly describe


the person to be seized if it contains the
name/s of the person/s to be seized.
John Doe warrant descriptio persona

Buy-bust operation is a valid in flagrante


arrest.

Search Warrant description is as specific


as the circumstances will ordinarily allow
or when description expresses a conclusion
of fact (not of law) by which the warrant
officer may be guided in making the search;
or when the things described are limited to
those which bear direct relation to the
offense for which the warrant is being
issued.

In flagrante arrests:
(1) The person to be arrested must execute
an overt act indicating that he had just
committed, is actually committing, or is
attempting to commit a crime; and
(2) Such overt act is done in the presence or
within the view of the arresting officer.
In (2):
(1) there must be immediacy between the
time the offense is committed and the time
of the arrest. If there was an appreciable
lapse of time between the arrest and the
commission of the crime, a warrant of arrest
must be secured and
(2) the person making the arrest has
personal knowledge of certain facts
indicating that the person to be taken into
custody has committed the crime.

Properties Subject of Seizure:


(1) Subject of the offense
(2) Stolen or embezzled property and other
proceeds or fruits of the offense; and
(3) Property used or intended to be used as
means for the commission of an offense
Conduct of the Search
(1) Lawful occupant
(2) Any member of his family
(3) 2 witnesses, of sufficient age and
discretion, residing in the same locality

Question the validity of the arrest before


entering plea; failure to do so would
constitute a waiver of his right against
unlawful restraint of his liberty. However,
waiver is limited to the illegal arrest. It does
not extend to the search made as an incident
thereto, or to the subsequent seizure if
evidence allegedly found during the search.

Warrantless arrests by a peace officer or a


private person:
(1) When the person to be arrested has
committed, is actually committing or is
attempting to commit an offense in his
presence;
(2) When the offense had just been
committed and there is probable cause to
believe, based on his personal knowledge of
facts and of other circumstances, that the
person to be arrested has committed the
offense;
(3) When the person to be arrested is a
prisoner who has escaped from a penal

17

Nachura Notes Constitutional Law

interrogate him and pat him for weapons


whenever he observes unusual conduct
which leads him to conclude that criminal
activity may be afoot.
- Requisites:
1. police officer should properly introduce
himself and make initial inquiries
2. approach and restrain a person who
manifests unusual and suspicious conduct in
order to check the latters outer clothing for
possible concealed weapon
3. must have a genuine reason, in
accordance with experience and the
surrounding conditions, to warrant the belief
that the person to be held has weapons or
contraband concealed about him
4. search and seizure should precede the
arrest
Exception: People vs. Sucro
warrantless search and seizure can be made
without necessarily being preceded by
an arrest provided that the said
search
is effected on the basis of probable cause.
- People
vs.
Chua
Ho
San:
contemporaneous search of a person arrested
may be effected for dangerous weapons or
proofs or implements used in the
commission of the crime and which search
may extend to the area within his immediate
control where he might gain possession of a
weapon or evidence he can destroy, a valid
arrest must preceded a search.

Warrantless Searches
(1) When the right is voluntarily waived;
(2) When there is a valid reason to stopand-frisk;
(3) Where the search (and seizure) is an
incident to a lawful arrest;
(4) Search of vessels and aircrafts;
(5) Search of moving vehicles;
(6) Inspection of buildings and other
premises for the enforcement of fire,
sanitary and building regulations;
(7) Where prohibited articles are in plain
view;
(8) Search and seizure under exigent and
emergency circumstances; and
(9) Conduct of areal target zoning or
saturation drive/s as valid exercise of
military powers of the President (Guanzon
vs. de Villa)
Valid Waiver of Constitutional Right
(1) Right exists
(2) That the person involved had
knowledge, either actual or constructive of
the existence of such right; and
(3) That the person had an actual intention
to relinquish the right.
Searches of Passengers at Airports
- When the accused checked in his
luggage as a passenger of a plane, he agreed
to the inspection of his luggage in
accordance with customs laws and
regulations, and thus waived any objection
to a warrantless search.
- Search made pursuant to routine airport
security is allowed under RA 6235, which
provides that every airline ticket shall
contain a condition that hand-carried
luggage, etc., shall be subject to search, and
this condition shall form part of the contract
between the passenger and the air carrier.

Where the search (and seizure) is an incident


to a lawful arrest;
- Search must be contemporaneous to
arrest and made within a permissible area of
search.
- Requisites:
1. arresting officer must have probable
cause in effecting the arrest; and
2. probable cause must be based on
reasonable ground of suspicion or belief that
a crime has been committed or is about to be
committed.

Stop and Frisk


- Vernacular designation of the right of a
police officer to stop a citizen on the street,

18

Nachura Notes Constitutional Law

Permissible area of search


- may extend beyond the person of the one
arrested to include the premises or
surroundings under his immediate control.

Checkpoint Search
(1) Mere routine inspection: the search is
normally permissible when it is limited to a
mere visual search, where the occupants are
not subjected to a physical or body search.
(2) Extensive
search:
constitutionally
permissible if the officers conducting the
search had reasonable or probable cause to
believe, before the search, that either the
motorist is a law offender or they will find
the instrumentality or evidence pertaining to
a crime in the vehicle to be searched.

Seizure of allegedly pornographic material


(1) criminal charge must be brought against
the person/s for purveying the pornographic
material/s;
(2) application for a search and seizure
warrant obtained from a judge (who shall
determine the existence of probable cause);
(3) material confiscated brought to the court
in the prosecution of the accused for the
crime charged;
(4) court will determine whether the
confiscated items are really pornographic;
and
(5) judgment of acquittal or conviction
rendered by the court accordingly

Inspection of buildings and other premises


for the enforcement of fire, sanitary and
building regulations
- Exercise of police power of the State
- Must be conducted during reasonable
hours

Fishing vessel found to be violating fishery


laws may be seized without a warrant:
(1) usually equipped with powerful motors
that enable them to elude pursuit and
(2) seizure would be incident to a lawful
arrest

Prohibited articles are in plain view


- Objects in plain view of the officer who
has the right to be in the position to have
that view.
- Police officer is not searching but
inadvertently comes upon an incriminating
object.
- Requisites:
(1) Prior valid intrusion based on a valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
(2) Evidence was inadvertently discovered
by the police who have the right to be where
they are;
(3) Evidence
must
be
immediately
apparent; and
(4) Plain view justified the seizure of the
evidence without any further search.

Search of moving vehicles


- justified on the ground that it is not
practicable to secure a warrant because the
vehicle can be moved quickly out of the
locality or jurisdiction in which the warrant
may be sought.
- Prevent violations of smuggling or
immigration laws, provided that such
searches are made at borders or constructive
borders (e.g. checkpoints near the boundary
lines of the state).
Stop and search without a warrant at a
military or police checkpoints
- Not illegal per se so long as it is required
by the exigencies of public order and
conducted in a way least intrusive to
motorists. (Valmonte vs. de Villa)

Plain View
- Object is plainly exposed to sight.
- Where the object seized is inside a
closed package, the object is not in plain

19

Nachura Notes Constitutional Law

view and, therefore, cannot be seized


without a warrant.
- Package proclaims its contents
transparency, distinctive configuration or
contents are obvious to an observer.
- People vs. Salanguit: once the valid
portion of the search warrant has been
executed, the plain view doctrine can no
longer provide any basis for admitting the
other
items
subsequently
found
(marijuana was also wrapped in newspaper
which was not transparent.warrant for
shabu and drug paraphernalia, found the
shabu first)
- Doctrine is not an exception to the
warrant. It serves to supplement the prior
justification. It is a recognition that of the
fact that when executing police officers
come across immediately incriminating
evidence not covered by the warrant, they
should not be required to close their eyes to
it, regardless of whether it is evidence of the
crime they are investigating or evidence of
some other crime. It would be needless to
require the police to obtain another warrant.

Privacy
of
Communications
and
Correspondence
- The privacy of communication and
correspondence shall be inviolable EXCEPT
upon lawful order of the court OR when
public safety or order requires otherwise as
prescribed by law.
- Any evidence obtained in violation of
this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
Inviolability
- Exceptions:
(1) Lawful order of the court;
(2) Public safety or order requires otherwise,
as may be provided by law.
- Includes tangible and intangible objects.
- RA 4200: illegal for any person not
authorized by all the parties to any private
communication, to secretly record such
communications by means of a tape
recorder. Telephone extension was not
among the devices covered by this law.
Freedom of Expression
- No law shall be passed abridging the
freedom of speech, of expression nor of the
press, or the right of the people peaceably to
assemble and petition the government for
redress of grievances.
- Scope: Any and all modes of expression.

Immediately apparent test


- Does not require an unduly high degree
of certainty.
- Requires merely that the seizure be
presumptively reasonable assuming that
there is probable cause to associate the
property with criminal activity.
- Nexus exists between the viewed object
and the criminal activity.

Aspects:
(1) Freedom from censorship or prior
restraint
- Need not be total suppression, even
restriction
of
circulation
constitutes
censorship.
- Section 11 (b), RA 66461: legitimate
exercise of the police power of the State to
regulate media or communication and
information for the purpose of ensuring

Exclusionary Rule: Evidence obtained in


violation of Section 2, Article 3 shall be
inadmissible for any purpose in any
proceeding because it is the fruit of the
poisoned tree.
- Property illegally seized may be used in
evidence in the case filed against the officer
responsible for the illegal seizure.

Prohibited any person making use of the media to


sell or to give free of charge print space or air time
for campaign or other political purposes except to the
COMELEC.

20

Nachura Notes Constitutional Law

equal opportunity, time and space for


political
campaigns.
Unrelated
to
suppression of speech as it is only incidental
and no more than is necessary to achieve the
purpose of achieving the purpose of
promoting equality.
- Movie censorship: movie, compared to
other media of expression, have a greater
capacity for evil and must, therefore, be
subjected to a greater degree of regulation.
- Power of MTRCB can be exercised only
for purposes of classification not
censorship.
- Primacy of freedom of expression over
Enriles right to privacy because Enrile
was a public figure and a public figures
right to privacy is narrower than that of an
ordinary citizen. (Ayer Productions vs.
Judge Capulong)
- Board of Review for Motion Pictures
and Television (BRMPT) X-rating
when the program would create a clear and
present danger of an evil which the State has
the right to prevent. (Inglesi ni Cristo vs.
CA)
- No law prohibiting the holding and
reporting of exit poll. (ABS-CBN
Broadcasting Corporation vs. COMELEC)
- Test for the validity of government
regulation, valid if (OBrien Test):
1. within the constitutional power of
government;
2. furthers an important or substantial
government interest;
3. government interest is unrelated to the
suppression of free expression; and
4. incidental restriction on the freedom is
no greater than is essential to the furtherance
of that interest.
- Overbreadth
Doctrine:
prohibits
government from achieving its purpose by
means that sweep unnecessarily broadly,
reaching constitutionally protected as well
as unprotected activity.
(2) Freedom from subsequent punishment

- Without this assurance, the individual


would hesitate to speak for fear that he
might be held accountable for his speech, or
that he might be provoking the vengeance of
the officials he may have criticized.
- Not absolute and may be properly
regulated in the interest of the public.
- State may validly impose penal and/or
administrative sanctions, such as:
1. Libel
- Public and malicious imputation of a
crime, or of a vice or defect, real or
imaginary, or any act, omission, condition,
status or circumstance tending to cause the
dishonor, discredit or contempt of a natural
or juridical person, or to blacken the
memory of one who is dead.
- Oral defamation is called slander.
- Every
defamatory
imputation
is
presumed to be malicious.
Exceptions:
1. a private communication made by any
person to another in the performance of any
legal, moral or social duty; and
2. fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official
proceedings which are not of a confidential
nature, or of any statement, report or speech
delivered in said proceedings, or of any act
performed by public officers in the exercise
if their functions.
- Public has the right to be informed on
the mental, moral and physical fitness of
candidates for public officer. The rule
applies only to fair comments on matters of
public interest, fair comment being that
which is true, or if false, expresses the real
opinion of the author based upon reasonable
degree of care and on reasonable grounds.
2. Obscenity
- Determination of what is obscene is a
judicial function.
3. Criticism of official conduct

21

Nachura Notes Constitutional Law

- US vs. Bustos: individual is given the


widest latitude in criticism of official
conduct.
- Publication that tends to impede,
embarrass or obstruct the court and
constitutes a clear and present danger to the
administration of justice is not protected by
the guarantee of press freedom and
punishable by contempt. It is not necessary
to show that the publication actually
obstructs the administration of justice; it is
enough that it tends to do so.
- Freedom of press is subordinate to the
decision,
authority,
integrity
and
independence of the judiciary and the proper
administration of justice.
4. Right of students to free speech in
school premises not absolute
- Campus Journalism Act provides that a
student shall not be expelled or suspended
solely on the basis of articles he or she has
written, the same should not infringe on the
schools right to discipline its students.
- The school cannot suspend or expel a
student solely on the basis of the articles he
or she has written, except when such article
materially disrupts class work or involves
substantial disorder or invasion of rights of
others.

substantive evil arising from the utterance


questioned
- present refers to the time element,
identified with imminent and immediate
danger
- The danger must not only be probable,
but very likely inevitable.
(2) Dangerous Tendency Rule
- Words uttered create a dangerous
tendency of an evil which the State has the
right to prevent, then such words are
punishable.
- Sufficient if the natural tendency and the
probable effect of the utterance were to
bring about the substantive evil that the
legislative body seeks to prevent.
(3) Balancing of Interests Test
- When particular conduct is regulated in
the interest of public order, and the
regulation results in an indirect, conditional
or partial abridgment of speech, the duty of
the courts is to determine which of the two
conflicting interests demands the greater
protection
under
the
particular
circumstances presented.
- Requires a court to take conscious and
detailed consideration of the interplay of
interests observable in a given situation.
Assembly and Petition
- Right to assemble is not subject to prior
restraint.
- It may not be conditioned upon prior
issuance of a permit or authorization from
government authorities.
- It must be exercised in such a way as
will not prejudice the public welfare.
- PUBLIC PLACE: permit for the use of
such place, and not for the assembly itself,
may be validly required. The power of local
officials is merely one of regulation.
- Permit to hold public assembly shall not
be necessary where the meeting is to be held
in a PRIVATE PLACE.
Public Assembly Act: a permit shall not
be necessary where the meeting is to be held

Test of valid government interference


(1) Clear and Present Danger Rule
- Whether the words are used in such
circumstances and of such nature as to
create a clear and present danger that they
will bring about the substantive evils that the
State has the right to prevent.
- The substantive evil must be extremely
serious and the degree of imminence
extremely high before utterances can be
punished.
- Rule: the danger created must not only
be clear and present but also traceable to the
ideas expressed.
- clear: seems to point to a causal
connection with the danger of the

22

Nachura Notes Constitutional Law

in a private place, in the campus of the


government-owned or operated educational
institution, or in a freedom park.
Where permit is required, written
application shall be filed with the mayors
office at least 5 days before the scheduled
meeting and shall be acted upon within 2
days. Otherwise, permit shall be deemed
granted.
Denial shall be justified only upon clear
and convincing evidence that the public
assembly will create a cleat and present
danger to public order, safety, convenience,
morals and health.
Action shall be communicated within 24
hours to the applicant may appeal to
appropriate courts.
Decision must be reached within 24
hours.
The law permits law enforcement
agencies to detail a contingent under a
responsible officer at least 100 meters away
from the assembly in case it becomes
necessary to maintain order.
- Academic freedom of institutions of
higher learning cannot be utilized to
discriminate against those who exercise their
constitutional rights.
- Right to free assembly and petition
prevails over economic rights.
- Education of the youth occupies a
preferred position over the freedom of
assembly and petition.
- Tests priorly applied by the court:
1. purpose test
2. auspice test

required for the exercise of civil or political


rights.
- 2 guarantees:
1. non-establishment clause
2. freedom of religious profession and
worship
- Non-establishment clause: separation of
Church and State
1. cannot be registered as a political party;
2. no sectoral representative from the
religious sector; and
3. prohibition against the use of public
money or property for the benefit of any
religion, or of any priest, minister or
ecclesiastic.
- Exceptions:
1. exception from taxation of properties
actually, directly and exclusively used for
religious purposes;
2. citizenship requirement of ownership of
educational institutions, except those
established by religious groups and mission
boards;
3. optional religious instruction in public
elementary and high schools expressed in
writing by the parents/guardians, taught
within regular class hours; and without
additional costs on the Government; and
4. appropriation allowed where the minister
or ecclesiastic is employed in the armed
forces, penal institution or in the
government-owned
orphanage
or
leprosarium.
- Scope:
1. State cannot set up a Church
2. nor pass laws which aid one religion, aid
all religion or prefer one over another;
3. nor force nor influence a person to go to
or remain away from church against his will;
4. or force him to profess a belief or
disbelief in any religion.
- The term Non-Christian tribes does
not refer to religious belief but to degree of
civilization. (People vs. Cayat)
- Laws, e.g. Article 133 of the RPC, do
not violate freedom of religion.

Freedom of Religion
- No law shall be made respecting an
establishment of religion or prohibiting the
free exercise thereof.
- The free exercise and enjoyment of
religious profession and worship, without
discrimination or preference, shall forever
be allowed. No religious test shall be

23

Nachura Notes Constitutional Law

- Freedom of religion is accorded


preferred status, designed to protect the
broadest possible liberty of conscience, to
allow each man to believe as his conscience
directs, to profess his beliefs and to live as
he believes he ought to live, consistent with
liberty of others and with the common good.
- Intramural religious disputes:
Where a civil right depends upon some
matter pertaining to ecclesiastical affairs, the
civil tribunal tries the civil right and nothing
more.
Ecclesiastical Affair is one that
concerns doctrine, creed, or forum of
worship of the church, or the adoption and
enforcement within a religious association
of needful laws and regulations for the
government of the membership, and the
power of excluding from such associations
those deemed unworthy of membership.
It is not for the Court to exercise control
over Church authorities in the performance
of their discretionary and official functions;
it is for the members of religious
institutions/organizations to conform to just
church regulations.
- Free Exercise Clause
Aspects of freedom of religious
profession and worship:
1. right to believe, which is absolute
2. right to act according to ones belief,
which is subject to regulation.
Constitutional guarantee of free exercise
pf religious profession and worship carries
with it the right to disseminate religious
information, and any restraint of such right
can be justified only on the ground that there
is a clear and present danger of an evil
which the State has the right to prevent.
- The compelling State interest test:
Estrada vs. Escritor (administratively
charged with immorality for living with a
married man, not her husband; conjugal
arrangement was in conformity with their
religious beliefs)

Benevolent Neutrality recognizes that


government must pursue its secular goals
and interests, but at the same time, strive to
uphold religious liberty to the greatest extent
possible within flexible constitutional limits.
Thus,
although
the
morality
contemplated by laws is secular, benevolent
neutrality could allow for accommodation of
morality based on religion, provided it does
not offend compelling state interest.
2 steps:
1) Whether respondents right to religious
freedom has been burdened and
2) Ascertain respondents sincerity in his
beliefs.
- State
regulations
imposed
on
solicitations for religious purposes do not
constitute an abridgment of freedom of
religion; but are NOT covered by PD 1564
(Solicitation Permit Law) which required
prior permit from DSWD in solicitations for
charitable or public welfare purposes;
- Free exercise clause does not prohibit
imposing a generally applicable sales and
use tax on the sale of religious materials by
a religious organization. Resulting burden is
so incidental as to make it difficult to
differentiate it from any other economic
imposition that might make the right to
disseminate religious doctrines costly.
Liberty of Abode and of Travel
- The liberty of abode and of changing the
same within the limits prescribed by law
shall not be impaired except upon lawful
order of the court.
- Neither shall the right to travel be
impaired except in the interest of national
security, public safety or public health, as
may be provided by law.
- Limitations:
1) On liberty of abode: lawful order of the
court
Caunca vs. Salazar: maid has the right to
transfer to another residence even if she had
not yet paid the amount advanced for her

24

Nachura Notes Constitutional Law

transportation from the province by an


employment agency;
Rubi vs. Provincial Board of Mindoro:
requiring some members of the nonChristian tribes to reside only within a
reservation, valid to promote their better
education, advancement and protection.
Universal Declaration of Human Rights:
everyone has the right to leave any country,
including his own and to return to his
country.
Covenant on Civil and Political Rights:
no one shall be arbitrarily deprived of the
right to enter his own country.
2) On right to travel: national security,
public safety or public health, as may be
provided by law
- Lawful order of the court is a valid
restriction.
- Court may validly refuse to grant the
accused permission to travel abroad, even if
the accused in out on bail. (Manotoc vs. CA)
- Liberty of travel may be impaired even
without court order, the appropriate
executive
officers
or
administrative
authorities are not armed with arbitrary
discretion to impose limitations.
- Principles:
1) The Hold-departure Order is but an
exercise of the courts inherent power to
preserve and maintain the effectiveness of
its jurisdiction over the case and over the
person of the accused;
2) By posting bail, the accused holds
himself amenable at all times to the orders
and processes of the court, thus, she may be
legally prohibited from leaving the country
during the pendency of the case; and
3) Parties with pending cases should apply
for permission to leave the country from the
very same courts which, in the first instance,
are in the best position to pass upon such
applications and to impose appropriate
conditions therefore, since they are
conversant with the facts of the cases and
the ramifications or implications thereof.

- The persons right to travel is subject to


the usual constraints imposed by the very
necessity of safeguarding the system of
justice. Whether the accused should be
permitted to leave the country for
humanitarian reasons is a matter addressed
to the courts discretion.
Right to Information
- Right of the people to information on
matters of public concern shall be
recognized.
- Access to official records and to
documents and papers pertaining to official
acts, transactions pr decisions as well as to
government research data used as basis for
policy development shall be afforded the
citizen, subject to such limitations as may be
provided by law.
- Scope of the Right: right to information
contemplates inclusion of negotiations
leading to consummation of the transactions.
The right only affords access, which
means the opportunity to inspect and copy
them at his expense.
Subject to regulations: to protect
integrity of public records and to minimize
disruption of government operations.
- Exceptions:
1) Privileged communications rooted in
separation of powers
2) Information on military and diplomatic
secrets
3) Information affecting national security
4) Information on investigations of crimes
by law enforcement agencies before the
prosecution of the accused.
- Need for publication of law reinforces
this right.
- The manner of examining public records
may be subject to reasonable regulation by
the government agency in custody.
- The duty to disclose the information of
public concern, and to afford access to
public records cannot be discretionary on the

25

Nachura Notes Constitutional Law

part of said agencies. Its performance may


be compelled by mandamus.
- In Re: Request for Live Radio-TV
Coverage of the Trial in the SB of the
Plunder Case against Former Pres. Joseph
Ejercito Estrada, Secretary of Justice
Hernando Perez vs. Joseph Ejercito Estrada:
when the constitutional guarantees of
freedom of the press and the right to
public information, on the one hand, and
the fundamental rights of the accused, on
the other hand, along with the
constitutional power of a court to control
its proceedings in ensuring a fair and
impartial trial race against another,
jurisprudence tells us that the right of the
accused must be preferred (losing not only
his liberty but also the very life of an
accused).

- No law impairing the obligation of


contracts shall be passed.
- To fall within the prohibition, the change
must not only impair the obligation of the
existing contract, but the impairment must
be substantial.
- Change in the rights of the parties with
reference to each other and not with respect
to non-parties.
- Impairment: anything that diminishes the
efficacy of the contract
- Substantial impairment when the law
changes either
1) Time of performance
2) Mode of performance
3) Imposes new conditions
4) Dispenses with those expressed
5) Authorizes for its satisfaction something
different from that provided in its terms
- Limitations:
1) Police power public welfare is superior
to private rights
2) Eminent domain
3) Taxation
- Franchises, privileges, licenses, etc do
not come within the context of the provision
Subject to amendment alteration, or
repeal by the Congress when common good
so requires.

Right to Form Associations


- The right of the people, including those
employed in the public and private sectors,
to form unions, associations or societies for
purposes not contrary to law shall not be
abridged.
- Scope: includes the right not to join or to
disaffiliate from one.
- Right to Strike: members of the civil
service may not declare a strike to enforce
economic demands.
- The ability to strike is not essential to the
right of association.
- The right of the sovereign to prohibit
strikes or work stoppages by public
employees is clearly recognized at common
law. Modern rule merely incorporate or
reasserts said common law.
- Right is not absolute.
Anti-Subversion Act
Managerial
employees:
receive
information that is not only confidential but
also generally not available to the public.

Free Access to Courts


- Free access to the courts and quasijudicial bodies and adequate legal assistance
shall not be denied to any person by reason
of poverty.
- Social justice provision providing for
pauper suits.
Miranda Doctrine
- Any person under investigation for the
commission of an offense shall have
The right to be informed of his right to
remain silent and
To have competent and independent
counsel preferably of his own choice.

Non-impairment Clause

26

Nachura Notes Constitutional Law

- If the person cannot afford the services


of counsel, he must be provided with one.
- These rights cannot be waived, except
In writing and
In the presence of the counsel.
- No torture, force, violence, threat,
intimidation or any other means which
vitiate the free will shall be used against
him.
- Secret detention places, solitary,
incommunicado, or other similar forms of
detention are prohibited.
- Any confession or admission obtained in
violation of this or Section 17 shall be
inadmissible in evidence against him.
- The law shall provide for penal and civil
sanctions for violations of this section, as
well as compensation to and rehabilitation of
victims of torture or similar practices, and
their families.
- Rights are available only during
custodial investigation.
Custodial investigation or in-custody
interrogation of accused person: any
questioning initiated by law enforcement
officers after a person has been taken into
custody or otherwise deprived of his
freedom of action in any significant way.
Investigation ceases to be a general
inquiry into an unsolved crime and direction
is aimed upon a particular suspect who has
been taken into custody and to whom the
police would then direct interrogatory
questions which tend to elicit incriminating
statements.
- Does not apply to spontaneous
statement5s.
- Does
not
apply
to
admissions/confessions made by a suspect
before he was placed under custodial
investigation.
- Custodial investigation includes the
practice of issuing an invitation to a
person who is investigated in connection
with an offense he is suspected to have

committed, without prejudice to the liability


of the inviting officer for any violation.
- Police Line-up
Not considered part of custodial
investigation because it is conducted before
that stage of investigation is reached.
Process has not yet shifted from the
investigatory to the accusatory stage.
- People vs. Escordial
Out-of-court identification may be made
in a show-up (where the accused is
brought face to face with the witness for
identification) or in a police line-up (where
the suspect is identified by a witness from a
group of persons gathered for that purpose).
During custodial investigation, these
have
been
described
as
critical
confrontations of the accused by the
prosecution necessitating the presence of
counsel. This is because the result of these
pre-trial proceedings might well settle the
fate of the accused and reduce the trial to a
mere formality.
Merely photographed or paraffin test,
not yet under custodial investigation.
- Investigations not considered as
custodial interrogations.
- Arrested person signs a booking sheer
and an arrest report at the police station, he
does not admit the commission of an offense
nor
confess
to
any
incriminating
circumstance. Said booking sheet is merely
a statement of how the arrest was made and
has no probative value as an EJ statement of
the person detained.
- Rights guaranteed by this provision
refers only to testimonial compulsion.
- What rights are available
1) To remain silent;
No adverse inference from his refusal to
answer.
2) To competent and independent counsel
(preferably of his own choice; at all stages
of the proceeding);
Attaches upon the start of the
investigation;
27

Nachura Notes Constitutional Law

3) To be informed of such rights;


Transmission of meaningful information
rather than just ceremonial and perfunctory
recitation of an abstract constitutional
principle.
P must show that the accused understood
what he read and the consequences of his
waiver.
Right to be informed carries with it the
correlative obligation on the part of the
investigator to explain and contemplates an
effective communication which results in
the subject understanding what is conveyed.
(degree of explanation depends on the
personal circumstances of the accused)
4) Rights cannot be waived except in
writing and signed by the person in the
presence of his counsel;
5) No torture, force, violence, etc. which
vitiates free will shall be used;
6) Secret detention places, etc. are
prohibited; and
7) Confessions/admissions obtained in
violation of rights are inadmissible in
evidence.
2 Kinds
of Involuntary/Coerced
Confession
1) Coerced confession, the product of third
degree methods
2) Uncounselled statements, without the
benefit of the Miranda warning
Alleged
infringement
of
the
constitutional rights of the accused during
custodial investigation is relevant and
material only where an extrajudicial
confession/admission from the accused
becomes the basis of conviction.
1973 Constitution does not distinguish
between verbal and non-vernal confession.
A person suspected of having committed
a crime and subsequently charged with its
commission has the following rights in the
matter of his testifying or producing
evidence:
1) Before case is field in court or with
public
prosecutor
for
preliminary

Lawyer should never prevent a person


from telling the truth.
RA 7438: Accuseds parent, older bro
and sis, spouse, Mayor, Municipal Judge,
district school supervisor, or priest or
minister of the gospel as chosen by the
accused, may appear in lieu of the counsel
during the taking of an EJ confession IF:
1) Counsel of accused is absent and
2) Valid waiver had been executed.
competent and independent willing
to safeguard the constitutional rights of the
accused, as distinguished from one who
would merely be giving a routine
peremptory and meaningless recital of the
individuals constitutional rights.
Mere pro forma appointment of a
counsel de officio who fails to genuinely
protect the interests of the accused merits
disapprobation.
Independent Counsel: not special
counsel, City legal officer, Mayor,
public/private prosecutor, counsel of the
police, or a municipal attorney, whose
interest is admittedly adverse to the accused.
Preferably of his own choice does not
mean that the choice of a lawyer by a person
under investigation is exclusive as to
preclude other equally competent and
independent attorneys from handling the
defense.
Choice of lawyer when accused cannot
afford final say is still with the accused
who may reject said lawyer; deemed
engaged by the accused when he does not
object.
Confession obtained after charges had
already been filed: The right to counsel still
applies in certain pre-trial proceedings that
are considered critical stages in the criminal
process. Custodial interrogation before or
after charges have been filed, and noncustodial interrogation after the accused
has been formally charged, are considered
critical pre-trial stages in the criminal
process.
28

Nachura Notes Constitutional Law

investigation, but after having been taken


into custody or otherwise deprived of his
liberty and on being interrogated by the
police
To remain silent
Right to counsel
To be informed of such right
Not to be subjected to torture, violence,
threat, intimidation or any other means
which vitiates free will and
To have evidence obtained in violation
of these rights rejected and inadmissible.
2) After the case is filed in court
To refuse to be a witness
Not to have nay prejudice by such
refusal
To testify in his own behalf, subject to
cross-examination
While testifying, refuse to answer an
incriminating question
- Waiver
(1) Must be in writing and made in the
presence of the counsel
(2) No retroactive effect no application to
waivers made prior to APRIL 26, 1983, the
promulgation of Morales.
(3) Burden of proof burden of proving
valid waiver is with the prosecution.
Presumption that official duty has been
regularly performed cannot prevail over the
presumption of innocence.
(4) What may be waived
Right to remain silent
Right to counsel
NOT the right to be informed of these
rights.
- Guidelines for Arresting/Investigating
Officers (People vs. Mahinay)
(1) Person arrested, detained, invited or
under custodial investigation must be
informed in a language known to and
understood by him of the reason for his
arrest and must be shown the warrant of
arrest, if any.

(2) He must be warned that he has the right


to remain silent and that any statement he
makes may be used as evidence against him.
(3) He must be informed that he has the
right to be assisted at all times and have the
presence of an independent and competent
lawyer, preferably of his own choice.
(4) He must be informed that if he has no
lawyer or cannot afford one, a lawyer will
be provided for him; and that a lawyer may
also be engaged by any person in his behalf
or may be appointed by the Court upon
petition of the person or one acting in his
behalf.
(5) That whether or not the person arrested
has a lawyer, he must be informed that no
custodial investigation in any form shall be
conducted except in the presence of his
counsel or after a valid waiver.
(6) The person arrested must be informed
that, at any time, he has the right to
communicate or confer by the most
expedient means with his lawyer, any
member of his immediate family, or any
medical doctor, priest or minister chose by
him or anyone of his immediate family or by
his counsel, or be visited by/confer with
duly accredited national or international
non-governmental organization. It shall be
the responsibility of the officer to ensure
that this is accomplished.
(7) He must be informed that he has the
right to waive any said rights provided it is
made
voluntarily,
knowingly
and
intelligently, and ensure that he understood
the same.
(8) If the person arrested waives his right to
a lawyer, he must be informed that this must
be done in writing and in the presence of the
counsel, otherwise he must be warned that
the waiver is void even if he insists in his
waiver and chooses to speak.
(9) The person arrested must be informed
that he may indicate in any manner at any
time or stage of the process that he does not
wish to be questioned with a warning that

29

Nachura Notes Constitutional Law

once he makes such indication the police


may not interrogate him if the same had not
yet commenced or the interrogation must
cease if it had already begun.
(10)
The person arrested must be
informed that the initial waiver of his right
to remain silent, the right to counsel or to
any other rights does not bar him from
invoking it at any time during the process,
regardless of whether he may have answered
some questions or volunteered some
statements.
(11)
He must be informed that any
statement or evidence, as the case may be,
obtained in violation of any of the foregoing,
inculpatory or exculpatory, in whole or in
part, shall be inadmissible.
- Exclusionary
Rule:
Confession/Admission obtained in violation
of Section 12 and 17, Article III of the
Constitution shall be inadmissible in
evidence.
- Confession:
declaration
made
voluntarily and without compulsion or
inducement by a person acknowledging that
he has committed or participated in the
commission of a crime.
- Any allegation of force, duress, undue
influence or other forms of involuntariness
in exacting such confession must be proved
y clear, convincing and competent evidence
by the defense. Otherwise, the confessions
full probative value may be used to
demonstrate the guilt of the accused.
- Fruit of the Poisonous Tree: (Justice
Frankfurter Nardone vs. US)
Once the primary source is shown to
have been unlawfully obtained, any
secondary or derivative evidence derived
from it is also inadmissible.
Basis: evidence illegally obtained by the
State should not be used to gain other
evidence.
- Receipt of Seized Property if signed by
the accused without assistance of counsel

and not having been informed of his


constitutional rights is inadmissible.
People vs. Linsangan: initialed the P10
bill that the police found tucked in his waist.
Valid. Because possession of marked bills
did not constitute a crime, the subject if the
prosecution being his act of selling
marijuana cigs.
- Re-enactment of the Crime before,
must be appraised of his constitutional
rights.
- Res Gestae admissible.
- Waiver of Exclusionary Rule: failure to
object to offer in evidence.
Right to Bail
- All persons except those charged with an
offense punishable by RP, when evidence of
guilt is strong, shall before conviction be
bailable by sufficient sureties or be released
on recognizance as may be provided by law.
- The right to bail shall not be impaired
even when the privilege of the writ of
habeas corpus is suspended.
- Excessive bail shall not be required.
- Bail: is the security given for the release
of a person in custody of the law, furnished
by him or a bondsman, conditioned upon his
appearance before any court as may be
required.
- Any person under detention, even if no
formal charge have yet been field, can
invoke the right to bail.
- When bail is authorized, it should be
granted before arraignment, otherwise, the
accused may be precluded from filing a
motion to quash.
- Exceptions:
1. when charged with an offense
punishable by RP (or higher) and evidence
of guilt is strong
2. traditionally, not available to military
- Duty of the Court when accused is
charged with an offense punishable by RP or
higher.

30

Nachura Notes Constitutional Law

period to appeal, subject to consent of


bondsman.
If
court
imposes
penalty
of
imprisonment of 6-20 years, accused shall
be denied bail or bail previously granted
cancelled, upon showing by prosecution
that:
1) The accused is a recidivist, quasirecidivist, habitual delinquent, or has
committed the crime aggravated by the
circumstance of reiteration;
2) The accused is found to have previously
escaped from legal confinement, evaded
sentence or has violated the conditions of his
bail without valid justification;
3) The accused committed the offense
while on probation, parole or under
conditional pardon;
4) Circumstances of the accused or his case
indicate the probability of flight if released
on bail; and
5) Undue risk that during pendency of the
appeal, the accused may commit another
crime.
3) Denied
Accused is charged with a capital
offense or an offense punishable by RP or
higher and evidence of guilt is strong.
Principle denying bail to an accused
charged with a capital offense where
evidence of guilt is strong, applies with
equal force to the appellant who, though
convicted of an offense not punishable by
death, RP, or life imprisonment was
nevertheless originally charged with a
capital offense.
- Standards for fixing bail
1) Financial ability of the accused
2) Nature and circumstances of the offense
3) Penalty for the offense charged
4) Character and reputation of the accused
5) Penalty for the offense charged
6) Weight of the evidence against him
7) Age and health
8) Probability of appearing at the trial
9) Forfeiture of other bonds by him

Hearing on the motion for bail must be


conducted by the judge.
Prosecution must be given an
opportunity to present all the evidences.
Applicant having right of crossexamination and to introduce evidence in
rebuttal.
If prosecution refuses to adduce
evidence or fails to interpose an objection to
the motion for bail, it is still mandatory for
the court to conduct a hearing or ask
searching and clarificatory questions from
which it may infer the strength of the
evidence of guilt or lack of it.
- The hearing on the petition for bail need
not at all times precede arraignment,
because the rule is that a person deprived of
his liberty by virtue of his arrest or voluntary
surrender may apply for bail as soon as he is
deprived of his liberty, even before a
complaint or information is filed against
him.
- Courts order granting or refusing bail
must contain summary of evidence for the
prosecution.
- The assessment of the evidence
presented during bail hearing is only for the
purpose of granting or denying an
application for the provisional release of the
accused liberal in their approach, not
being a final assessment.
- Bail is either:
1) A matter of right
Before or after conviction by MeTC,
MTC MTC in Cities, MCTC
Before conviction by RTC of an offense
not punishable by death, RP or life
imprisonment.
2) Judges discretion
Upon conviction by RTC of an offense
not punishable by death, RP or life
imprisonment.
The court, in its discretion, may allow
the accused to continue on provisional
liberty under the same bail bond during the

31

Nachura Notes Constitutional Law

10) Fact that he was a fugitive from justice


when arrested
11) Pendency of other cases in which he is
under bond
- Right to Bail and Extradition
(Government of the U.S. vs. Judge Purungan
and Mark Jimenez)
The constitutional provision on bail
applies only when a person is arrested and
detained for violation of Philippine criminal
laws. It does not apply to extradition
proceedings, because extradition courts do
not render judgments of acquittal or
conviction.
It flows from the presumption of
innocence in favor of every accused who
should not be subjected to the loss of
freedom unless his guilt is proved beyond
reasonable doubt. The constitutional
provision on bail will not apply to a case of
extradition where the presumption of
innocence is not an issue.
Extradition proceedings are separate and
distinct from the trial of the offenses for
which he is charged.
He should apply for bail before the
courts trying the criminal cases against him,
not before the extradition court.
After a potential extradite has been
arrested and placed under custody of the
law, bail may be applied for and granted as
an exception, only after clear and
convincing showing that
a. Once granted bail, the applicant will not
be a flight risk or a danger to the
community, and
b. There exists special, humanitarian and
compelling circumstances.
- Waiver of the Right to Bail personal to
the accused.
- The right to bail is not impaired by the
suspension if the privilege of the writ of
habeas corpus.

- No person shall be held to answer for a


criminal offense without due process of law.
- In all criminal prosecutions,
the accused shall be presumed innocent
until the contrary is proved,
and shall enjoy the right to be heard by
himself and counsel,
to be informed of the nature and cause of
accusation against him,
to have a speedy, impartial and public
trial,
to meet the witnesses face to face, and
to have compulsory process to secure the
attendance of the witnesses and the
production of evidence in his behalf.
- After arraignment, trial may proceed
notwithstanding the absence of the accused,
provided that he has been duly notified and
the failure to appear is unjustifiable.
- Criminal due process:
1) accused has been heard in a court of
competent jurisdiction
2) accused is proceeded against under the
orderly processes of law
3) accused has been given notice and the
opportunity to be heard
4) judgment rendered was within the
authority of a constitutional law
- Unreasonable delay in resolving
complaint is violation of the right to due
process and to speedy trial dismissal of
complaint.
Exception: petitioners own acts or
complexity of the issues involved.
- Hearing before an impartial and
disinterested tribunal. Bias must be shown
by clear and convincing evidence.
- Right to a hearing
- Plea of guilt to a capital offense.
Mandatory that:
1) TC must conduct a searching inquiry
into the voluntariness of the plea and the full
comprehension of the consequences;
2) Prosecution should present evidence to
prove the guilt of the accused and the
precise degree of his culpability; and

Constitutional Rights of the Accused

32

Nachura Notes Constitutional Law

3) Accused must be asked if he desires to


present evidence in his behalf and should be
allowed to do so if he desires.
- The State and the offended party are
entitled to due process
- Presumption of Innocence: every
circumstance favoring the innocence of the
accused must be taken into account.
Will NOT apply if there is some logical
connection between the fact proved and the
ultimate fact presumed, and the inference of
one fact from proof of another shall not be
so unreasonable as to be purely arbitrarily
mandate.
Can be invoked only by an individual
accused of a criminal offense.
Corporate entity has no personality to
invoke the same.
- Presumption that official duty was
regularly performed cannot, by itself, prevail
over the constitutional presumption of
innocence.
Exception: when it is not the sole basis
for conviction.
- Constitutional presumption may be
overcome by contrary presumptions based
on experience of human conduct. (e.g.
unexplained wealth)
- Circumstantial evidence in order to
warrant conviction:
1) More than one circumstance
2) Facts from which the inference are
derived are proven
3) Combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt.
- Equipose Rule: applicable only when the
evidence adduced by the parties are evenly
balanced, in which case the constitutional
presumption of innocence should tilt the
scales in favor of the accused.
- Right to be heard by himself and
counsel: efficient and truly decisive legal
assistance.
Proceeds from fundamental principle of
due process.

Right to counsel during the trial is not


subject to waiver because even the most
intelligent or educated man may have no
skill in the science of law, particularly in the
rules of procedure, and without counsel. He
may be convicted not because he is guilty
but because he does not know how to
establish his innocence.
Failure of the record to disclose
affirmatively that the TC advised the
accused of his right to counsel is not
sufficient ground to reverse conviction. The
TC must be presumed to have complied with
the procedure prescribed by law for the
hearing and trial of the cases, and such
presumption can be overcome only by an
affirmative showing to the contrary.
- Right to counsel is not indispensable to
due process of law.
Exceptions: cannot be waived during
trial.
But this is not absolute. Option cannot
be used to sanction reprehensible dilatory
tactics, to trifle with ROC, or prejudice the
equally important rights of the State and the
offended party to speedy and adequate
justice.
- Preference in the choice of counsel
pertains more aptly and specifically to a
person under custodial investigation rather
than one who is accused in a criminal
prosecution. Such preferential discretion
cannot partake of discretion so absolute and
arbitrary as would make the choice of
counsel refer exclusively to the prediction of
the accused.
- General Rule: a client is bound by the
mistakes of his lawyer
Exceptions: when the negligence or
incompetence of counsel is deemed gross as
to have prejudiced the constitutional right of
the accused to be heard.
- Right to be informed of the nature and
cause of accusation against him.
Reasons:

33

Nachura Notes Constitutional Law

1. furnish the accused with such a


description of the charge against him as will
enable him to prepare for his defense;
2. avail himself of his conviction or
acquittal for protection against a further
prosecution for the same cause; and
3. to inform the Court of the facts alleged,
so that it may decide whether they are
sufficient in law to support a conviction.
- When a judge is informed or discovers
that an accused is apparently in a condition
of insanity or imbecility, it is within his
discretion to investigate the matter.
- Requisites: The information must state:
1. name of the accused
2. designation of the offense given by
statute
3. statement of acts or omissions so
complained of as constituting the offense
4. name of the offended party
5. approximate time and date of the
commission of the offense
6. place where the offense has been
committed
7. facts and circumstances that have a
bearing on the culpability and liability of the
accused
- Every element of the offense must be
alleged in the complaint or information,
because the accused is presumed to have no
independent knowledge of the facts that
constitute the offense charged.
- Not necessary to state the precise time
when the offense was committed except
when time is a material ingredient of the
offense.
- Description not the designation of the
offense controls.
- Accused can be convicted only of the
crime alleged or necessarily included in the
allegations in the information.
- While a TC can hold a joint trial of 2 or
more criminal case and can render a
consolidated decision, it cannot convict the
accused of the complex crime constitutive of
the various crimes of the 2 informations.

- Void for Vagueness Rule: the law is


deemed void where the statute itself is
couched in such indefinite language that it is
not possible for men of ordinary intelligence
to determine what acts or omissions are
punishable.
- The right to be informed of the nature
and cause of the accusation against may not
be waived but the defense may waive the
right to enter a plea and let the court enter a
plea of not guilty.
- Indictment must fully state the elements
of the specific offenses alleged to have been
committed. An accused cannot be convicted
of an offense, even if duly proven, unless it
is alleged or necessarily included in the
complaint or information.
Different matter if the accused
themselves refused to be informed of the
nature and cause of the accusation against
them.
- Accused may be convicted of as many
offenses charged in the information and
proved during the trial, where he fails to
object to such duplicitous information
during the arraignment.
- Information which lacks certain material
allegations may sustain a conviction if the
accused fails to object to its sufficiency
during trial and deficiency is cured by
competent evidence presented therein.
- Right to Speedy, Impartial and Public
Trial
Speedy Trial
Free from vexatious, capricious and
oppressive delays.
Accused entitled to dismissal, equivalent
to acquittal, if trial is unreasonably delayed.
Relative subject to reasonable delays
and postponements arising from illness,
medical attention, body operations, etc.
Aggrieved party also has the same rights
as the accused.
Separate trial is in consonant with the
right of the accused to a speedy trial.
RA 8493 (Speedy Trial Act):

34

Nachura Notes Constitutional Law

o Arraignment of the accused w/in 30


days from the filing of the information or
from the date the accused has appeared
before the justice, judge or court in which
the charge is pending, whichever date last
occurs.
o If plea of not guilty has 15 days to
prepare for trial.
o Trial shall commence w/in 30 days from
arraignment as fixed by the court.
o No case shall the entire trial period
exceed 180 days from the first day of trial,
except as otherwise authorized by the Chief
Justice of the SC.
Impartial Trial
cold neutrality of an impartial judge
for the benefit of the litigants and is also
designed to preserve the integrity of the
judiciary and to gain and maintain the
peoples faith in the institution s they have
erected when they adopted the Constitution.
Pervasive publicity is not per se
prejudicial to the right of the accused to a
fair trial.
Trial judges must be accorded a
reasonable leeway in asking questions as
may be essential to elicit relevant facts and
to bring out the truth. This is not only a right
but also duty of the judge.
Public Trial
Intended to prevent abuses that may be
committed against accused.
Not absolute.
Not synonymous to publicized trial.
Means that the court doors must be open
to those who wish to come, sit in the
available seats, conduct themselves with
decorum and observe trial processes.
- Right to Meet the Witnesses Face to
Face right to cross-examine the
complainant and the witnesses.
Testimony of the witness who has not
submitted himself to cross-examination is
not admissible in evidence being hearsay.
This right can be waived.

- Right to Compulsory Process to secure


the attendance of witnesses and the
production of evidence.
Subpoeana process directed to a person
requiring him to attend and to testify at the
hearing or trial of an action or at any
investigation conducted under the laws of
the Philippines or for the taking of his
deposition.
2 kinds:
1. subpoena ad testificandum: compel a
person to testify
2. subpoena duces tecum: compel the
production of books, records, things or
documents
o test of relevancy: books, documents or
other things requested must appear prima
facie relevant to the issue subject of the
controversy
o test of definiteness: such books must be
reasonably described by the parties to be
readily identified
- Requisites:
1. evidence is really material
2. accused is not guilty of neglect in
previously obtaining the production of such
evidence
3. the evidence will be available at the time
desired
4. no similar evidence can be obtained.
- Trial in absentia
Purpose is to speed up the disposition of
criminal cases.
Mandatory upon the court whenever the
accused has been arraigned, notified of the
date/s of hearing/s and his absence is
unjustified.
After the accused has waived further
appearance during trial, he can still be
ordered arrested by the court for nonappearance upon summons to appear for
purposes of identification.
Presence of the accused is mandatory:
1. arraignment and plea
2. during
trial,
for
purposes
of
identification
35

Nachura Notes Constitutional Law

3. promulgation of sentence, except for


light offense wherein accused may appear
by counsel/representative
Accused who escapes from confinement,
jumps bail or flees to a foreign country,
loses his standing in court and unless he
surrenders or submits himself to the
jurisdiction of the court, he is deemed to
waive his right to seek relief from the court.

- That the preliminary investigation was


invalid and that the offense had already
prescribed is not a ground to grant the
issuance of habeas corpus.
Remedy: motion to quash the WOA or
file a motion to quash the information based
on prescription.
- Desaparecidos (disappeared persons),
persons in whose behalf the writ was issued
could not be found Remedy: refer the
matter to the Commission on Human Rights
In case of doubt, the burden of proof
rests on the officers who detained them and
who claim to have effected the release of the
detainees.
- All courts of competent jurisdiction may
entertain petitions for HC to consider the
release of petitioners convicted of violation
of the Dangerous Drugs Act, provided they
have served the maximum term of the
applicable penalties newly prescribed by RA
7659.
- HC lies only where the restraint of the
persons liberty has been judicially adjudged
to be illegal or unlawful.
- Loss of judicial records, after 12 years of
detention in the service of the sentence
imposed upon conviction, will not entitle
him to be released on HC. Remedy:
reconstitution of judicial records.
- Have to comply with the writ.
Disobedience constitutes contempt of court.

Habeas Corpus
- The privilege of the writ of habeas
corpus shall not be suspended except in
cases of invasion or rebellion when public
safety requires it.
- Definition: a writ issued by a court
directed to a person detaining another,
commanding him to produce the body of the
prisoner at a designated time and place, with
the day and cause of his caption/detention,
to do, to submit to and to receive whatever
the court/judge awarding the writ shall
consider in his behalf.
- When available: restores the liberty of an
individual subjected to physical restraint. It
secures to the prisoner the right to have the
cause of his detention examined and
determined by the courts; and to have the
issue ascertained as to whether he is held
under lawful authority.
- May also be availed of where, as a
consequence of a judicial proceeding:
1. there has been deprivation of
constitutional rights
2. the court has no jurisdiction to impose
the sentence
3. excessive penalty has been imposed,
since such sentence is void as to the excess.
- The writ will not issue where the person
alleged to be restrained on liberty is in the
custody of an officer under a process issued
by the court which has jurisdiction to do so.
- Even if the detention is at its inception
illegal, supervening events such as the
issuance of a judicial process, may prevent
the discharge of the detained person.

- In case of invasion or rebellion, when


the public safety requires it, the President
may for a period not exceeding 60 days,
suspend the privilege of the writ of HC.
- W/in 48 hours from the suspension, the
President shall submit a report, in person or
in writing, to Congress.
- Congress, voting jointly by a majority
vote of at least a majority of all its members
in regular or special session may revoke
such proclamation or suspension, such
revocation shall not be set aside by the
President.

36

Nachura Notes Constitutional Law

- Unlike right to speedy trial, this right is


available not only during trial but also when
the case has already been submitted for
decision.
- Right extends to all citizens, including
those in the military, and covers the period
before, during and after trial.
- Right can be waived failure to
seasonably assert this right.

- Upon initiative of the President, the


Congress may, in the same manner, extend
such proclamation or suspension for a period
to be determined by Congress, if the
invasion or rebellion shall persists and
public safety requires it.
- SC may review, in appropriate
proceeding filed by any citizen, the
sufficiency of the factual basis for the
proclamation of martial law and the
suspension of the privilege of the HC or the
extension thereof.
- SC must promulgate its decision w/in 30
days from filing.
- The suspension of the privilege of the
writ shall apply only to persons charged for
rebellion or offenses inherent in or directly
connected with invasion.
- During the suspension of the privilege of
the writ, any person thus arrested or detained
shall be judicially charged within 3 days,
otherwise he shall be released.

Self-incrimination
- No person shall be compelled to be a
witness against himself.
- Right is available not only in criminal
prosecutions but also in all other
government proceedings, including civil
actions and administrative or legislative
investigations.
- It may be claimed not only by the
accused but also by any witness to whom a
question calling for an incriminating answer
is addressed.
- General Rule: it may be invoked only
when and as the question calling for an
incriminating answer is asked. This applies
only to ordinary witness.
In criminal prosecution accused may not
be compelled to take the witness stand.
Similarly applicable to a respondent in
an administrative proceeding.
- Scope: not against all compulsion, but
testimonial compulsion only. (not the
inclusion of his body in evidence when it
may be material)
Prohibition extends to the compulsion
for the production of documents, papers and
chattels that may be used as evidence
against the witness, except where the State
has a right to inspect the same such as the
books of accounts of corporations, under the
police or taxing power or where a
government official is required to produce
official documents/public records which are
in their possession.
Also protects the accused against any
attempt to compel him to furnish a specimen

- Suspension of the privilege does not


suspend the right to bail.
Speedy Disposition of Cases
- All persons shall have the right to a
speedy disposition of cases before all
judicial, quasi-judicial or administrative
bodies.
- Not limited to the accused in a criminal
proceedings, but extends to all cases,
including civil and administrative cases and
in all proceedings including judicial and
quasi-judicial hearings.
- Like right to speedy trial, this right is
violated only when the proceedings are
attended by vexatious, capricious and
oppressive delays or when unjustified
postponements of the trial are asked for and
secured, or when without cause or justifiable
motive a long period of time is allowed to
elapse without the party having his case
tried.

37

Nachura Notes Constitutional Law

of his handwriting in connection with a


prosecution for falsification.
- Immunity:
1) Transactional
Immunity:
witness
immune from any criminal prosecution for
an offense to which his compelled testimony
relates.
2) Use and Fruit Immunity: prohibits the
use of the witness compelled testimony and
its fruits in any manner in connection with
the criminal prosecution of the witness.
- Those granted this privilege paid a high
price the surrender of their right to remain
silent. Should be given a liberal
interpretation.
- Waiver: either directly or by failure to
invoke it, provided that the waiver is certain
and unequivocal and intelligently made.

heinous crimes, the Congress hereafter


provides for it.
- Any death penalty already imposed shall
be reduced to RP.
- The
employment
of
physical,
psychological or degrading punishment
against any prisoner or detainee, or the use
of substandard or inadequate penal facilities
under subhuman conditions shall be dealt
with by law.
- Mere severity does not constitute cruel
or unusual punishment.
- The penalty must be flagrantly and
plainly oppressive, wholly disproportionate
to the nature of the offense as to shock the
moral sense of the community.
- Death penalty is not a cruel or unusual
punishment. It is an exercise of the States
power to secure society against the
threatened
and
actual
evil.
Automatic review in death penalty cases
shall proceed even in the absence of the
accused, considering that nothing less than
life is at stake and any court decision must
be error-free as possible.

Non-detention by Reason of Political Beliefs


or Aspirations
- No person shall be detained solely by
reason of his political beliefs or aspirations.
Involuntary Servitude
- No involuntary servitude in any form
exist except as a punishment for a crime
whereof the party shall have been duly
convicted.
- Exceptions:
1) Punishment for a crime whereof one has
been duly convicted;
2) Patria potestas
3) Posse comitatus
4) Return to work order in industries
affected by public interest
5) Service in defense of the state
6) Naval (merchant marine) enlistment

Non-imprisonment for Debt


- No person shall be imprisoned for debt
or non-payment of a poll tax.
- While the debtor cannot be imprisoned
for failure to pay his debt, he can be validly
punished in a criminal action if he
contracted his debt through fraud, as his
responsibility arises not from the contract of
loan, but from the commission of the crime.
Double Jeopardy
- No person shall be twice put in jeopardy
of punishment for the same offense.
- If an act is punished by law and an
ordinance, conviction or acquittal under
either shall constitute a bar to another
prosecution for the same act.
- Requisites:
1. valid complaint or information

Prohibited Punishment
- Excessive fines shall not be imposed.
- Nor cruel, degrading or inhuman
punishment inflicted.
- Neither shall death penalty be imposed,
unless for compelling reasons involving

38

Nachura Notes Constitutional Law

- When the ground for motion to dismiss


is insufficiency of evidence (grant of
demurrer) equivalent to an acquittal and
any further prosecution would violate the
constitutional proscription against double
jeopardy.
- When the proceedings have been
unreasonably prolonged as to violate the
right of the accused to speedy trial double
jeopardy
- Revival of the case provisionally
dismissed time-bar for the revival of
criminal cases provisionally dismissed with
the express consent of the accused and with
prior notice to the offended party:
1) 2 years if the offense charged is
penalized by more than 6 years
imprisonment
2) 1 years if the penalty imposed does not
exceed 6 years imprisonment or a fine in
whatever amount
- Prohibits the state from appealing or
filing a petition for review if judgment of
acquittal that was based on the merits of the
case. Certiorari will lie to correct errors of
judgment.
- Double jeopardy provides three related
protections:
1) Against 2nd prosecution for the same
offense after acquittal;
2) Against a 2nd prosecution for the same
offense after conviction; and
3) Against multiple punishments for the
same offense.
- Instances when prosecution may appeal
1) Prosecution is denied due process, such
denial results in loss or lack of jurisdiction
and this appeal may be allowed
2) Accused has waived or is estopped from
invoking his right against double jeopardy
- No double jeopardy
1) Mistrial
2) State is deprived of fair opportunity to
prosecute and prove its case
3) Dismissal of information/complaint is
purely capricious

does not attach in preliminary


investigation.
2. filed before a competent court
mistake has been made in charging the
proper offense, the first charge shall be
dismissed to pave the way for the filing of
the proper offense. The dismissal of the first
case will not give rise to double jeopardy
inasmuch as the court does not have
jurisdiction over the case,
3. to which defendant had pleaded
no arraignment = no double jeopardy
grant of motion to quash, filed before the
accused makes his plea, can be appealed by
the prosecution because the accused has not
yet been placed in jeopardy.
4. defendant was previously acquitted or
convicted, or the case dismissed or
otherwise terminated without his express
consent
promulgation of only one part of the
decision is not a bar to the promulgation of
the other part, the imposition of the criminal
accountability and does not constitute a
violation of the proscription against double
jeopardy.
- Dismissal of action
1. permanent dismissal
1) termination of the case on the merits
resulting in either conviction or acquittal
2) dismissal of the case because of the
prosecutions failure to prosecute
3) dismissal on the ground of unreasonable
delay in violation of the right to speedy trial
2. provisional dismissal dismissal without
prejudice to reinstatement before order of
dismissal becomes final or to subsequent
filing of a new information within the
periods allowed by law.
- Express consent directly given, either
viva voce or in writing, a positive, direct,
unequivocal consent requiring no inference
or implication to supply its meaning.
- When dismissal is made at the instance
of the accused, there is no double jeopardy.

39

Nachura Notes Constitutional Law

4) Lack of proper notice to be heard


5) Accused waives or is estopped from
invoking his right against double jeopardy.
6) Dismissal/acquittal is made with grave
abuse of discretion
- Discharge of co-accused to be utilized as
government witness
- Accused cannot be prosecuted anew for
an identical offense, or for any attempt to
commit the same or frustration thereof, or
for any offense which necessarily includes
or is necessarily included in the offense
charged in the original complaint or
information.
- Doctrine of Supervening Event the
accused may still be prosecuted for another
offense if a subsequent development
changes the character of the first indictment
under which he may have already been
charged or convicted.
The conviction of the accused shall not
be a bar to another prosecution for an
offense which necessarily includes the
offense charged in the original complaint or
information when:
a. Graver offense developed due to
supervening facts arising from the same act
or omission;
b. Facts constituting the graver offense or
were discovered only after the filing of the
former complaint or information; or
c. The plea of guilty to a lesser offense was
made without the consent of the fiscal or the
offended party.

c. Law that changes the punishment, and


inflicts a greater punishment than the law
annexed to the crime when committed;
d. Law that alters legal rules of evidence
and receives less or different testimony than
the law required at the time of the
commission of the offense, in order to
convict the offender;
e. Law which, assuming to regulate civil
rights and remedies only, in effect imposes
a penalty or the deprivation of a right for
something which when done was lawful;
f. Law which deprives a person accused of
a crime of some lawful protection to which
they have been entitled
Characteristics
a. Retroactive
b. Works to the prejudice of the accused
c. Refers to criminal matters
- Bill of attainder
Definition: legislative act that inflicts
punishment without trial.
Substitutes legislative fiat for a judicial
determination of guilt.
It is only when the statute applies either
to named individuals or to easily
ascertainable members of a group in such a
way as to inflict punishment on them
without judicial trial that it becomes a bill of
attainder.
Anti-Subversion Act is not a bill of
attainder. simply declares that the
Communist Party is an organized conspiracy
to overthrow the Government and for
definitional purposes only.

Ex post facto law and Bill of attainder


- No ex post facto law or bill of attainder
shall be enacted.
- Ex post facto law
Kinds
a. Law that makes criminal an action done
before the passage of the law and which was
innocent when done, and punishes such
action;
b. Law that aggravates a crime, or makes
it greater than it was when committed;

VII. CITIZENSHIP
- Definition: membership in a political
community which is personal and more or
less permanent in character.
- Nationality is membership in any class
or form of political community. It does not
necessarily include the right/privilege of
exercising civil or political rights.
- Modes of acquiring:
1) Marriage
40

Nachura Notes Constitutional Law

2) Birth
- Jus soli
- Jus sanguinis
3) Naturalization
- Natural-born citizens citizens of the
Philippines from birth without having to
perform any act to acquire or perfect their
Philippine citizenship.
- Marriage by Filipino to an alien
citizens of the Philippines who marry aliens
shall retain their citizenship, unless by their
act or omission they are deemed, under the
law, to have renounced it.
- Dual allegiance of citizens is inimical to
the national interest and shall be dealt with
by law.
- Dual citizenship as a disqualification
under the LGC must refer to dual allegiance.
- For candidates with dual citizenship, it is
sufficient that they elect Philippine
citizenship upon the filing of their certificate
of candidacy to terminate their status as
persons with dual citizenship.
Filing of certificate of candidacy is
sufficient to renounce foreign citizenship.
- Attack on ones citizenship may be made
only through a direct and not collateral
attack.
- Doctrine of res judicata does not
ordinarily apply to questions of citizenship.
Exception:
1) Persons citizenship is resolved by a
court or an administrative body as a material
issue in the controversy, after full-blown
hearing
2) Active participation of the SolGen or his
representative
3) Finding of citizenship is affirmed by the
SC
- Citizens of the Philippines
1) Citizens of the Philippines at the time of
the adoption of the 1987 Constitution
2) Whose fathers or mothers are citizens of
the Philippines
3) Born before January 17, 1973, of
Filipino mothers, who elect Philippines

citizenship upon reaching the age of


majority
Election stated in a statement to be
signed and sworn to by the party concerned
before any official authorized to administer
oath.
Filed with the nearest Civil Registry
Accompanied with the Oath of
Allegiance to the Constitution and the
Government
Within 3 years from reaching the age of
majority except when there is justifiable
reason for delay.
Doctrine of Implied Election exercise
of right of suffrage and participation in the
election exercises
Right is available to the child as long as
the mother was a Filipino citizen at the time
of the marriage to the alien, even if by
reason of such marriage, she lost her
Philippine citizenship and even if the mother
was not a citizen at time of birth.
Right to elect Philippine citizenship is an
inchoate right
During his minority, child is an alien.
Apply only to legitimate children.
If the child is illegitimate, he follows the
status and citizenship of his known parent,
the mother.
4) Naturalization
- Modes of Naturalization
Direct
1) Judicial or administrative proceedings
2) Special act of legislature
3) Collective change of nationality,
resulting from cession or subjugation
4) Adoption of orphan minors as nationals
of the State where they were born
Derivative
1) Alien woman upon marriage to a
national
2) Minor children of naturalized person
3) Wife of naturalized husband

41

Nachura Notes Constitutional Law

- Doctrine of Indelible Allegiance:


individual may be compelled to retain his
original nationality even if he has already
renounced or forfeited it under the laws of
the second State whose nationality he has
acquired.
- Qualifications:
1) Not less than 21 at the date of the
hearing;
2) Resided in the Philippines for a
continuous period of 10 years
Reduced to 5 years IF
1) Born in the Philippines
2) Honorably held office in Government
3) Introduced a useful invention or
established a new industry
4) Engaged as a teacher in the Philippines,
public or private school (except those
established for the exclusive instruction of
persons of a particular nationality) or in any
branches of education or industry for a
period of not less than 2 years
3) Good moral character; believes in the
underlying principles of the Constitution;
conducted himself in a proper and
irreproachable manner during his residency
4) Own real estate in the Philippines not
less than P5,000, have some lucrative trade,
profession or lawful occupation
5) Speak and write English/Spanish/any
principal Philippine languages
6) Enrolled his minor children of school
age to public/private schools recognized by
the Government, where Philippine history,
government and civic are taught
- Disqualifications:
1) Opposed to organized government or
affiliated with any association of
groups/persons who uphold and teach
doctrines
opposing
all
organized
governments
2) Defending or teaching the propriety of
violence, personal assault, assassination for
the success or predominance of ideals
3) Polygamists or believers

4) Convicted of a crime involving moral


turpitude
5) Suffering from mental alienation or
incurable contagious disease
6) Who, during the period of their
residence, have not mingled socially with
Filipinos or who have not evinced a sincere
desire to learn and embrace the customs,
traditions and ideals of the Filipinos
7) Citizens and subjects of nations with
whom the Philippines is at war, during the
period of such war
8) Citizens and subjects of foreign country
whose law does not grant Filipinos the right
to become naturalized citizens
- Procedure
1) File declaration of intention with SolGen
one year prior to the filing of the petition
Exception:
1) Born in the Philippines and received
primary and secondary education in public
or private schools recognized by the
Government and not limited to particular
race
2) Resided in the Philippines for 30 years
or more before the petition and enrolled his
children to elementary and high schools
recognized by the Government and not
limited to particular race
3) Widow and minor children if an alien
who has declared his intention to become a
citizen of the Philippines and dies before he
is actually naturalized.
2) File petition + affidavit of 2 credible
persons, citizens of the Philippines who
personally know the petitioner, as character
witness
3) Publication of petition
Jurisdictional
Published in OG or in a newspaper of
general circulation once a week for three
consecutive weeks
4) Actual residence during the entire
proceedings
5) Hearing
6) Promulgation of the decision

42

Nachura Notes Constitutional Law

7) Hearing after 2 years (Probation period


of 2 years)
Not left the Philippines
Dedicated himself continuously to a
lawful calling/profession
Not been convicted of any offense or
violation of rules
Not committed any act prejudicial to the
interest of the nation or contrary to any
Government-announced policies
8) Oath taking and issuance of certification

- Effects of Denaturalization: if the


ground affects the intrinsic validity of the
proceedings, the denaturalization will divest
wife and children; if ground is personal to
the denaturalized Filipino, his wife and
children shall retain Philippine citizenship.
- Naturalization by direct legislative
action discretionary on Congress; usually
for aliens who made outstanding
contributions to the country
Administrative Naturalization grant
Philippine citizenship by administrative
proceedings to aliens born and residing in
the Philippines
Special Committee on Naturalization SolGen (Chairman), Sec of FA and National
Security Adviser power to approve, reject
or deny applications
Qualifications
1) Born in the Philippines and residing
therein since birth
2) Not less than 18 at the time of filing
3) Good moral character; believes in the
underlying principles of the Constitution;
conducted himself in a proper and
irreproachable manner during his residency
4) Received primary and secondary
education in any public/private school
recognized by DECS, where Philippine
history, government and civics is taught and
not limited to any race/nationality; Provided
that where he has minor children, must be
enrolled in similar schools
5) Known trade, business, profession or
lawful occupation from which he derives
income sufficient to support himself and
family
N/A to college degree holders who are
disqualified from practicing their profession
due to citizenship requirements
6) Able to read, write and speak Filipino or
any of the dialects
7) Mingled with Filipinos and evinced a
sincere desire to learn and embrace the
customs and traditions and ideals of the
Filipino people

- Effects
1) Vests citizenship on wife if she herself
may be naturalized
2) Minor children born in the Philippines
before naturalization shall also be
considered citizens
3) Minor children born outside the
Philippines but residing in the Philippines at
the time of naturalization shall also be
considered citizens
4) Minor children born outside the
Philippines shall be citizens only during
minority, unless he begins to reside
permanently in the Philippines
5) Child born outside the Philippines, after
the naturalization of the parents shall be
considered citizens, Provided he registers as
such before any Philippine consulate within
one year after attaining majority age and
takes his oath of allegiance
- Grounds for Denaturalization
1) Naturalization
certificate
obtained
fraudulently or illegally
2) Invalid declaration of intention
3) Minor children failed to graduate
through the fault of parents
4) Allowed himself to be used as dummy
5) If within 5 years he returns to his native
country or some foreign country and
establishes residence there
- 1-year stay in native country or 2-year
stay in a foreign country is prima facie
evidence of intent to take up residence

43

Nachura Notes Constitutional Law

- Procedure
1) File with Special Committee a petition
2) Publication of pertinent portions of the
petition once a week for 3 consecutive
weeks in newspaper of general circulation
3) Posting of copies in public or
conspicuous areas
4) Furnish copies to following agencies
who shall post copies of the petition in any
public or conspicuous areas in their building
officers and premises and within 30 days
submit to Committee a report stating
whether or not petitioner has any derogatory
record on file
DFA
Bureau of Immigration and Deportation
Civil registrar of petitioners place of
residence
NBI
5) Within 60 days from receipt of agencies
report, Committee shall consider and review
all information.
6) If Committee receives any adverse
information,
Committee shall allow
petitioner to answer, explain or refute the
petition
7) Deny or Approve petition
8) Within 30 days from approval, petitioner
pays P100,000, take oath of allegiance and
certificate of naturalization shall issue.
9) Within 5 days from taking oath, BoI
shall forward copy of oath to the proper
local civil registrar and cancel petitioners
alien certificate of registration.
- Status of Alien Wife and Minor Children
May filed a petition for cancellation of
their alien certificate of registration.
If applicant is a married woman,
husband may not benefit. But minor children
may avail of the right to seek the
cancellation of alien certificate of
registration.
- Cancellation of the Certificate of
Naturalization
1) Naturalized person or representative
made
any
false
statement
or

misrepresentation or obtained citizenship


fraudulently or illegally or committed any
violation of the law, rules or regulations
2) w/in 5 years shall establish permanent
residence in a foreign country
o 1-year stay in native country or 2-year
stay in a foreign country is prima facie
evidence of intent to take up residence
3) Allowed himself, wife or children with
acquired citizenship to be used as dummy
4) He, his wife or children commits any act
inimical to national interest
Loss and Reacquisition of Philippine
Citizenship
- Loss of Citizenship
1) Naturalization in a foreign country
- RA 9225
2) By express renunciation of citizenship
3) By subscribing to an oath of allegiance
to support the Constitution or laws of a
foreign country upon attaining 21 years of
age
- Principle of Indelible Allegiance
Filipino may not divest himself of Philippine
citizenship in this manner while Philippines
is at war with any country
4) By rendering service or accepting
commission in the armed forced of a foreign
country
- Exceptions:
1) Philippines has a defensive and/or
offensive pact of alliance with the said
foreign country
2) Foreign country maintains armed forces
in the Philippine territory with consent of
the Republic
5) By cancellation of the certificate of
naturalization
6) By having been declared by competent
authority a deserter of the Philippine armed
forces in time of war
- Reacquisition of Citizenship
1) Taking the oath of allegiance required of
former natural-born Philippine citizens who
may have lost their citizenship by reason of

44

Nachura Notes Constitutional Law

their acquisition of the citizenship of a


foreign country
2) Naturalization
provided
that
he
possesses none of the disqualifications
3) Repatriation or deserters of the Army,
Navy or Air Corps; a woman who has lost
her citizenship by reason of marriage may
be repatriated after termination of marital
status
- Repatriation takes effect as of the date of
filing of his application.
- Effect of repatriation is to allow the
person to recover or return to his original
status before he lost his Philippine
citizenship.
4) Direct act of Congress

1) Referendum on Statutes
2) Referendum on local legislation
- Prohibited measures
1) Petition embracing more than one
subject
2) Involving emergency measures, the
enactment of which is specifically vested in
Congress by the Constitution, cannot be
subject to referendum, until 90 days after
effectivity
- Local Initiative,
Not less than 2,000 registered voters in
case of autonomous regions

1,000 in provinces
and cities

100 in
municipalities

50 in baranagays
File a petition with Regional Assembly
or local legislative body
- Limitation on Local Initiative
1) Exercised not more than once a year
2) Extend only to subjects or matters which
are within the legal powers of the local
legislative body to enact
3) If at any time before the initiative is
held, the local legislative body shall adopt in
toto the proposition presented, the initiative
shall be cancelled

VIII.
THE
LEGISLATIVE
DEPARTMENT
- Legislative power the power to
propose, enact, amend and repeal laws
- Vested in Congress except to the extent
reserved to the people by the provision in
initiative and referendum
People can directly propose and enact
laws or approve or reject any act or law or
part thereof passed by the Congress or local
legislative body after the registration of a
petition thereof signed by at least 10 per
centum of the total number of registered
voters, of which every legislative district
must be represented by at least 3 per centum
of the registered voters.
Initiative power of the people to
propose amendments to the Constitution or
to propose and enact legislation through an
election called for that purpose.
1) Initiative on the Constitution
2) Initiative on Statutes
3) Initiative on local legislation
Indirect Initiative exercise of initiative
by the people through a proposition sent to
Congress or local legislative body for action
Referendum power of the electorate to
approve or reject legislation through an
election called for that purpose.

- Composition of Congress: Senate and


House of Representative
- Senate: 24 senators, elected at large by
qualified voters
Qualifications
1) Natural-born
2) On the day of the election, at least 35
years of age
3) Able to read and write
4) Registered voter
5) Resident of the Philippines for not less
than 2 years immediately preceding the day
of the election
Term: 6 years, commencing at noon on
30th day of June next following their election

45

Nachura Notes Constitutional Law

Limitation: no senator shall serve for


more than 2 consecutive terms. Voluntary
renunciation of office for any length of time
shall not be considered as an interruption in
the continuity of his service for the full term
for which elected.
- House of Representatives: not more than
250, unless otherwise provided by law
Composition
1) District representative
2) Party-list representative
3) Sectoral representative
Apportionment of legislative district is a
justiciable question
o (Provinces and cities and Metro Manila
area) Apportionment shall be made in
accordance with the number of respective
inhabitants on the basis of a uniform and
progressive ratio.
o Each city with not less than 250,00
inhabitants entitled to at least 1 rep
o Each province, irrespective of number of
inhabitants entitled to at least 1 rep
Each legislative district shall comprise,
as far as practicable, compact, contiguous
and adjacent territory.
Congress to make reapportionment of
legislative districts within 3 years following
return of every census.
Constitution does not preclude Congress
from increasing its membership by passing a
law other than a general apportionment law.
Reapportionment of legislative districts
may be made through a special law.
Qualifications:
1) Natural-born Filipino citizen
2) At the day of the election, at least 25
years old
3) Able to read and write
4) Except the party-list representative, a
registered voter in the district in which he
shall be elected
5) Resident thereof for not less than 1 year
immediately preceding the day of the
election

Principles
1) Minor follows domicile of parents
2) Domicile of origin is lost only when
there is
a. actual removal or change of domicile
b. bona fide intention of abandoning the
former residence and establishing a new one
c. acts which corresponds with the purpose
3) Wife does not automatically gain
husbands domicile
THEORY OF LEGAL IMPOSIBILITY
J. Francisco (Aquino v. Comelec)
Immigration to the US by virtue of a
green card constitutes abandonment of
domicile in the Philippines. (Caasi vs.
COMELEC)
Term: 3 years, commencing at noon on
the 30th day of June next following their
election,
Limitation: shall not serve for more than
3 consecutive terms.
- Party-List System: mechanism for
proportional representation
Party: political party, sectoral party or
coalition of parties
Political Party: organized group of
citizens advocating an ideology or platform,
principles and policies for the general
conduct of government and which, as the
most immediate means of securing their
adoption, regularly nominates and supports
certain of its leaders and members as
candoidates for public office.
National Party: constituency is spread
over the geographical territory of at least a
majority of the regions.
Regional Party: constituency is spread
over the geographical territory of at least a
majority of the cities and provinces
comprising the region.
Sectoral Party: (LUFEP-WHIP-VY)
organized group of citizens belonging to any
of the following: labor, urban poor,
fisherfolk, elderly, peasants, women,
handicapped,
indigenous
cultural

46

Nachura Notes Constitutional Law

communities, overseas workers and


professionals, veterans and youth.
Sectoral Organization: group of citizens
or a coalition of groups of citizens who
share
similar
physical
attributes,
characteristics, employment, interest or
concern.
Coalition: aggrupation of duly registered
national, regional, sectoral parties or
organization for political and/or election
purposes.
- Registration/Manifestation to Participate
in the Party-List System
90 days prior to election, petition
verified by its President or Secretary
If already registered, file instead a
manifestation of its desire to participate in
the party-list system
- Refusal
and/or
Cancellation
of
Registration (motu proprio or upon verified
complaint filed by any interested party; after
due notice and hearing)
1) Religious sect/denomination
2) Advocate violence to attain goal
3) Foreign party/organization
4) Receives support from foreign party/org
5) Declares untruthful statement in its
petition
6) Violates or fails to comply with election
laws, rules and regulations
7) Failed to participate in the last 2
preceding elections or fails to obtain at least
2% of the votes cast under the party-list
system in the 2 preceding elections for the
constituency in which it has registered
8) Ceased to exist for at least 1 year
- Nomination
of
a
party-list
representative: each registered party,
organization or coalition must submit a list
of names to the COMELEC not later than 45
days before the election.
Not less than 5
Only persons who have given their
consent may be included in the list

Not include any candidate for elective


position, or who lost the immediately
preceding election
No change allowed except:
1) Dies
2) Withdraws in writing
3) Becomes incapacitated
Incumbent who are nominate are NOT
considered resigned.
- Qualifications of a Party-list nominee
1) Natural-born citizen
2) Able to read and write
3) Registered voter
4) Resident of the Philippines at least 1
year immediately preceding the day of the
election
5) Bona
fide
member
of
the
party/organization which he seeks to
represent at least 90 days preceding the day
of the election
6) At least 25 years old at the day of the
election
7) Youth sector at least 25 but not more
than 30. If during his term reaches the age of
30, he shall be allowed to continue until
expiration of term.
- Manner of Voting every voter entitled
to two votes, 1 for member of the House and
1 for the party, organization or coalition.
- Number 20% of the total number of
the members of the House including those
under the party-list.
In determining the allocation of seats for
the second vote:
1) Parties, organizations and coalitions
shall be ranked from the highest to the
lowest cased on the number of votes they
garnered during the election
2) Parties, organizations and coalitions
receiving at least 2% of the total votes cast
for the party-list system shall be entitled to
1-seat each, those garnering more than 2%
of the votes shall be entitled to additional
seats in proportion to their total number of
votes

47

Nachura Notes Constitutional Law

3) Each party, organization or coalition


shall be entitled to not more than 3 seats
4 inviolable parameters:
1) 20% allocation: combined number of all
party-list congressmen shall not exceed 20%
of the total membership of the House
2) 2% threshold: only those parties
garnering a minimum of 2% of the total
valid votes cast for the party-list system are
qualified to have a seat
3) 3-seat limit: each qualified party,
regardless of the number of votes it actually
obtained, is entitled to a maximum of 3 seats
4) Proportional representation: additional
seats which a qualified party is entitled to
shall be computed in proportion to their
number of votes.
In order that a political party registered
under the party-list system may be entitled
to a seat in the House:
1) Represent the marginalized and underrepresented sector
2) Major political parties must comply with
this statutory policy
3) Constitutional
prohibition
against
religious sect
4) Not disqualified under RA7941
5) Not adjunct or project funded by
government
6) Party and its nominees must comply
with the requirements of the law
7) Nominee must also represent the
marginalized and under-represented sector
8) Nominee must be able to contribute to
the formulation and enactment of
appropriate legislation
- Choosing Party-List Representative:
proclaimed by COMELEC based on a list of
names submitted by respective parties,
according to their ranking in the list.
- Effect of Change of Affiliation
Changes affiliation during term
forfeiture of seat
IF w/in 6 months before election, he
shall not be eligible for nomination under
new party

- Vacancy automatically filled by the


next rep from the list of nominees and shall
serve for the unexpired term. If the list is
exhausted, the party, organization or
coalition shall submit additional nominees.
- Term of Office: term of 3 years and shall
be entitled to same salaries and emoluments
as regular members of the House.
Election
Regular: 2nd Monday of May
Special: to fill a vacancy; serve for the
unexpired term
Salaries
Determined by law.
No increase in said compensation shall
take effect until after the expiration of the
term of all the members of the Senate and
House approving such increase.
Privileges
1) Freedom from Arrest
Offenses punishable by not more than 6
years imprisonment, be privileged from
arrest while Congress is in session.
2) Privilege of Speech and of Debate
Not be questioned nor be held liable in
any other place for any speech/debate in the
Congress or in any committee.
Held to account for such speech or
debate by the House to which he belongs
Disqualifications
1) Incompatible Office
Not hold any other office or employment
Forfeiture of the seat in Congress
automatically
upon
assumption
of
incompatible office.
N/A if he holds the government office in
an ex officio capacity
2) Forbidden Office
Neither shall he be appointed to any
office which may have been created or the
emoluments thereof increased during the
term for which he was elected.
48

Nachura Notes Constitutional Law

Officers
Senate elects its President
House elects its Speaker
Each nay choose such other officers as it
may deem necessary

Last only for the duration of the term for


which the member of Congress was elected.
Other Inhibitions
not personally appear as counsel before
any court, ET, quasi-judicial or other
administrative bodies
not be directly or indirectly interested
financially in any contract with, or any
franchise or special privilege granted by the
Government
not intervene in any matter before any
office of the Government for his pecuniary
benefit or where he may be called upon to
act on account of his office.

Quorum
Majority of each House
But a smaller number may adjourn from
day to day and may compel the attendance
of absent Members in such manner and
under such penalties as such House may
determine
Quorum in the Senate shall be the total
number of Senators who are in the country
and within the coercive jurisdiction of the
Senate.

Session
Regular: convene once a year on the 4 th
Monday of July unless a different date is
fixed by law; and shall continue for such
number of days as it may determine until 30
days before the opening of its next regular
session, exclusive of Saturdays, Sundays
and legal holidays.
Special: call by president usually to
consider legislative measure which the
President may designate in his call
Joint
1) Voting Separately
a. Choosing the president
b. Determine disability of the president
c. Confirming nomination of VP
d. Declaration of the existence of a state of
war
e. Proposing constitutional amendments
2) Voting Jointly
a. Revoke/extend proclamation suspending
the privilege of the writ of HC
b. Or placing the Philippines under martial
law
Adjournment neither House during the
sessions of the Congress shall, without the
consent of the other adjourn for more than 3
days nor to any other place than that in
which the 2 Houses shall be sitting.

Rules of Proceedings
Each House determined the rules of its
proceedings.
Discipline of Members
House may punish its members for
disorderly behavior, and with concurrence of
2/3 of all its members, suspend (for not
more than 60 days) or expel a member.
Determination of acts which constitute
disorderly behavior is within the full
discretionary authority of the House
concerned, and the Court will not review
such determination, the same being a
political question.
Records and Books of Accounts
Preserve and open to public
Books shall be audited by COA which
shall publish annually an itemized list of
amounts paid to and expenses incurred by
each member.
Legislative Journal and Congressional
Records
Each House shall keep a Journal of its
proceedings, and from time to time publish

49

Nachura Notes Constitutional Law

the same, excepting such parts as may, in its


judgment, affect national security;
And the yeas and nays on any question
shall, at the request of 1/5 of the Members
present, be entered in the Journal.
Each House shall also keep a Record of
its proceedings.
Matters which under the Constitution are
to be entered in the journal:
a. Yeas and nays on 3rd and final reading of
a bill
b. Veto message of the President
c. Yeas and nays on the repassing of a bill
vetoed by the President
d. Yeas and nays on any question at the
request of 1/5 of members present.
Enrolled Bill Theory: enrolled bill is one
duly introduced and finally passed by both
Houses, authenticated by the proper officers
of each and approved by the President.
Enrolled Bill prevails, except to matters
which under the Constitution must be
entered in the Journal.

necessary before the case may be brought to


the Court.
Power: sole judge of all contests relating
to the election, returns and qualifications of
their respective members.
HRET may assume jurisdiction only
when after the winning candidate shall have
been duly proclaimed, has taken oath of
office, and has assumed functions of the
office.
Decisions may be reviewed by SC by
showing grave abuse of discretion in a
petition for certiorari filed under R65.
Commission on Appointment
Composition
a. Senate President, ex-officio chairman
b. 12 senators
c. 12 house
* b and c elected by each House on the basis
of proportional representation from the
political parties registered.
Powers act on all appointments
submitted to it within 30 session days of
Congress from their submission.
Shall rule by majority vote of its
members
Meet only while Congress is in session
At the call of its Chairman or majority of
all its members
Independent of the 2 Houses and has the
power to promulgate its own rules of
proceedings.

Electoral Tribunals
Composition
a. 3 SC Justices designated by CJ, the
senior justice shall be the chairman
b. 6 members of the house, chosen on the
basis of proportional representation from the
political parties registered
Non-partisan court; independent of
Congress
Termination of Membership:
a. Expiration of congressional term
b. Death
c. Resignation from political party
d. Formal affiliation to another political
party
e. Removal for other valid causes
Cannot disqualify senator-member just
because election contest is filed against him.
(Abbas vs. Senate ET)
Doctrine of Primary Administrative
Jurisdiction, prior recourse to the House is

Powers of Congress
1. General (plenary) legislative power
- Limitations:
1. Substantive
- Express
a. Bill of rights
b. Appropriations
c. Taxation
d. Constitutional appellate jurisdiction of
SC

50

Nachura Notes Constitutional Law

e. No law granting a title of royalty or


nobility shall be passed
- Implied
a. Non-delegation of powers
b. Prohibition against the passage if
irrepealable laws
2. Procedural
a. Only one subject to be expressed in the
title
- Title is not required to be an index of the
contents of the bill
- Sufficient compliance if the title
expresses the general subject and all the
provisions of the statute are germane to thee
subject
- Sufficient if the title is comprehensive
enough, as in this case, to include subjects
related to the general purpose which the
statute seeks to achieve.
- Rider is a provision not germane to the
subject matter of the bill.
b. Three readings on separate days
- Printed copies of bill in its final form
distributed to Members 3 days before its
passage
- EXCEPT when the President certifies to
its immediate enactment to meet a public
calamity or emergency
- Upon last reading, no amendment
allowed, and vote thereon taken immediately
and the yeas and nays entered in the journal
- Presidential certification dispensed with
the requirement not only of printing but also
that of reading the bill on separate days.
3. Legislative Process
- Requirements as to bill
Only 1 subject to be expressed in the
title
Appropriation, revenue bills, tariff bills,
bills of local application, bills authorizing
increase of public debts and private bills
shall originate exclusively in the House of
Representative.
It is not the law, but the bill, which is
required to originate exclusively in the
House, because the bill may undergo such

extensive changes in the Senate that the


result may be a rewriting of the whole.
The Constitution does not prohibit the
filing in the Senate of a substitute bill in
anticipation of its receipt of the bill from the
House, so long as the action by the Senate as
a body is withheld pending receipt of the
House bill.
- Procedure: passed 3 readings on separate
days, and printed copies in its final form
have been distributed to its Members 3 days
before its passage EXCEPT when President
certifies to the necessity of its immediate
enactment to meet a public calamity or
emergency.
Courts are denied the power to inquire
into allegations that, in enacting a law, a
House of Congress failed to comply with its
own rules, in the absence of any showing
that there was a violation of constitutional
requirements or the rights of private
individuals.
It is within the Bicameral Conference
Committee to include in its report an
entirely new provision that is not found
either in the House or Senate bill.
If the Committee can propose an
amendment consisting of 1 or 2 provisions,
there is no reason why it cannot propose
several provisions, collectively considered
as an amendment in the nature of a
substitute so long as the amendment is
germane to the subject of the bills before the
Committee.
Jurisdiction
of
the
Conference
Committee is not limited to resolving
differences between the Senate and the
House versions of the bill. It may propose an
entirely new provision.
- Approval of Bills
The bill becomes a law in the following
cases:
a. President approves the same and signs it.
b. Congress overrides the Presidential veto
if the President disapproves the bill, he
shall return the same, with his objections
51

Nachura Notes Constitutional Law

contained in his Veto message to the House


of origin (which shall enter the objections at
large in its Journal). The veto is overridden
upon a vote of 2/3 of all members of the
House of origin and the other House. Yeas
and Nays entered in the Journal of each
House.
o No pocket veto.
o Partial veto, as a rule, is invalid. It is
allowed only for particular items in an
appropriation, revenue or tariff bill. The
President cannot veto part of an item in an
appropriation bill while approving the
remaining portion of the item.
o Legislative Veto a congressional veto
is a means whereby the legislature can block
or modify administrative action taken under
a statute. It is a form of legislative control in
the implementation of particular executive
action. It may be negative (subjecting the
executive action to disapproval by
Congress) or affirmative (requiring approval
of the executive action by Congress)
c. When the President fails to act upon the
bill for 30 days from receipt thereof, the bill
shall become a law as if he had signed it.
2. Power of Appropriation
Spending power called the power of the
purse belongs to Congress subject only to
the veto power of the President.
It is the President who proposes the
budget, the final say on the matter of
appropriation is lodged in Congress.
The power of appropriation carries with
it the power to specify the project/activity to
be funded under the appropriation law.
Need for appropriation NO money
shall be paid out of the Treasury except in
pursuance of an appropriation made by
law.
Indispensable requisites or condition
sine qua non for the execution of
government contracts:
a. Existence of appropriation
b. Availability of funds

Appropriation law a statute the


primary and specific purpose of which is to
authorize the release of public funds from
the Treasury.
Classification:
1) General Appropriations Law passed
annually, for the financial operations of the
government.
2) Special Appropriations Law for
specific purpose
Implied Limitation on Appropriation
Measures
1) Appropriation must be devoted to public
purpose
2) Sum authorized to be released must be
determinate or at least determinable
Decree do not specify the specific
amounts to be paid, the amounts are
nevertheless made certain by the legislative
parameters provided in the decrees.
The mandate being only to pay the
principal, interest, taxes and other normal
banking charges.
Constitutional Limitation on Special
Appropriation Measure
1) Specify the public purpose for which the
sum is intended
2) Must be supported by funds actually
available as certified to by the National
Treasurer or to be raised by a corresponding
revenue proposal included therein.
Constitutional Rules on General
Appropriations Law:
Congress may not increase the
appropriations recommended by the
President for the operation of the
Government.
The form, content and manner of
preparation of the budget shall be prescribed
by law.
No provision or enactment shall be
embraced unless it relates specifically to
some particular appropriation. Any such
provision or enactment shall be limited in its
operation to the appropriation to which it

52

Nachura Notes Constitutional Law

relates. This is intended to prevent riders or


irrelevant provisions included in the bill to
ensure its approval.
i.
Procedure
for
approving
appropriations for Congress shall strictly
follow the procedure for approving
appropriations for other departments and
agencies. (to prevent sub rosa appropriation
by Congress)
ii. Prohibition
against
transfer
of
appropriations
Exception:
1) President
2) Senate President
3) Speaker
4) Chief Justice
5) Heads of Constitutional Commission
By law, be authorized to augment any
item in the general appropriation law for
their respective offices from savings in other
items of their respective appropriations.
iii. Prohibition against appropriation for
sectarian benefit
Exception: priest, preacher, minister or
dignitary is assigned to the armed forces or
to any penal institution or government
orphanage or leposarium.
iv. Automatic reappropriation
If Congress failed to pass the general
appropriations bill for the ensuing year, the
general appropriations bill for the preceding
fiscal year shall be deemed re-enacted until
said bill is passed.
Impoundment the refusal by the
President for whatever reason to spend funds
made available by Congress. It is the failure
to spend or obligate budget authority of any
type.
Appropriation
Reserves

the
Administrative Code authorizes the Budget
Secretary to establish reserves against
appropriations to provide for contingencies
and emergencies which may arise during the
year.
This is expenditure deferral not
suspension, since the agencies concerned

can still draw on the reserves if the fiscal


outlook improves.
3. Power of Taxation
Limitations
1. uniform and equitable evolve a
progressive system of taxation
2. charitable institutions, etc. and all lands,
buildings and improvements actually,
directly and exclusively used for religious,
charitable or educational purposes shall be
exempt from taxation.
3. all revenues and assets of non-stock,
non-profit educational institutions used
directly, actually and exclusively for
educational purposes shall be exempt from
taxation.
4. Law granting tax exemptions shall be
passed only with concurrence of majority of
all members of Congress
4. Power of Legislative Investigation
Conduct inquiries in aid of legislation.
Rights of persons appearing in or
affected by such inquiries shall be respected.
Limitations
1. in aid of legislation
2. in accordance with duly published rules
of procedure
3. Rights of persons appearing in, or
affected by such inquiry shall be respected
Power to punish for contempt: Senate
being a continuing body may order
imprisonment for an indefinite period, but
principles of due process and equal
protection will have to be considered.
5. Question Hour
Heads of the departments may upon their
own initiative with the consent of the
President OR upon the request of wither
House, as the rules of each House shall
provide, appear before and be heard by the
House on any matter pertaining to their
departments.
Written questions submitted to the
Senate P or Speaker, 3 days before the
scheduled appeared.

53

Nachura Notes Constitutional Law

Qualifications
1. natural-born citizen
2. registered voter
3. able to read and write
4. on the day of the election, at least 40
years old
5. resident of the Philippines for at least 10
years immediately preceding such election

Interpellations shall not be limited to the


written questions, may cover matters related
thereto.
When the security of the State or the
public interest so requires, may be held in
executive session.
6. War Powers
Declaration of the existence of state of
war 2/3 of both Houses in joint session,
voting separately
7. Power to act as Board of Canvassers in
election of President
8. Power to call a Special Election for
President and VP
9. Power to judge the Presidents physical
fitness to discharge the functions of
Presidency
10. Power to revoke or extend suspension of
the privilege of the writ of HC or declaration
of martial law
11. Power to concur in Presidential
amnesties
Concurrence of majority of all members
of the Senate
12. Power to concur in treaties or
international agreements
2/3 of all the members of the Senate
13. Power to confirm certain appointments
by the President
in the event of vacancy in the Office of
VP, from among members of Congress
confirmed by majority vote of all the
Members of both Houses of Congress,
voting separately.
Nominations by President under Sec 16,
Article 7 confirmed by Commission on
Appointments
14. Power to impeachment
15. Power relative to natural resources
16. Power to propose amendments to the
Constitution

Election
- Regular Election: 2nd Monday of May
- Congress as Board of Canvassers
Returns of every election for President
and VP, duly certified by Board of
Canvassers of each province or city shall be
transmitted to Congress directed to Senate
President.
SP, upon receipt, shall not later than 30
days after the day of the election, open all
the certificates in the presence of the Senate
and House in joint public session.
Congress upon determination of the
authenticity and due execution, shall canvass
the votes.
Congress shall promulgate its own rules.
2 or more candidates shall have an equal
and highest number of votes, one of them
shall be chosen by a majority vote of all
members of Congress.
- Congress has the authority to proclaim
the winning candidates for the position of
President and Vice President
- Congress may delegate the initial
determination of the authenticity and due
execution of the certificate of canvass to a
Joint Congressional Committee, composed
of members of the House and Senate
- The decisions and final report of the
Committee shall be subject to the approval
of the joint session of both Houses if
Congress, voting separately.
- Even if Congress has adjourned its
regular session it may continue to perform
this Constitutional duty of canvassing the
presidential and vice-presidential election

IX. EXECUTIVE DEPARTMENT


The President

54

Nachura Notes Constitutional Law

results without need of any call for a special


session by the President.
- The joint public session cannot adjourn
sine die until it has accomplished its
constitutionally mandated task.
- No constitutional or statutory basis for
COMELEC to undertake a separate and an
unofficial tabulation of results
descends to the level of private organization
while using public funds, violates exclusive
prerogative of NAMFREL and taints
integrity of envelopes containing ER and the
ERs themselves.
- SC as Presidential Electoral Tribunal
SC, en banc
Sole judge of all contests relating to the
election, returns and qualifications of the
President or VP
Promulgate its own rules

- Department Secretaries, though alter


egos, cannot invoke Presidents immunity
from suit.
Prohibitions/Inhibitions
1. Not receive any other emoluments from
the government or nay other source
2. Not hold any other office or
employment, unless provided in this
Constitution
- VP may be appointed to the Cabinet
without need of confirmation from
Commission on Appointment
- Secretary of Justice is ex-officio member
of Judicial and Bar Council
- Secretary of Labor ex-officio member
of BOD of PEZA
- Secretary of TC ex-officio Chairman
of PPA and LRTA
- Prohibition must not be construed as
applying to poses occupied by Executive
officials without additional compensation in
an ex-officio capacity, as provided by law
and as required by the primary functions of
the said officials office. These posts do not
comprise any other office but is an
imposition of additional duties and functions
on said official.
3. Not directly or indirectly practice any
other profession, participate in any business
or be financially interested in any contract,
franchise or special privilege
4. Strictly avoid conflict of interest in the
conduct of their office
5. May not appoint Spouse or Relatives by
consanguinity or affinity within the fourth
civil degree as
a. Members of Constitutional Commissions
b. Office of the Ombudsman
c. Secretaries
d. Undersecretaries
e. Chairman/heads
of
bureaus/offices/GOCCs/subsidiaries

Term of Office: 6 years


- No re-election
- No person who has succeeded as
President and has served for more than 4
years shall be qualified for election to the
same office at any time
Privileges
1. Official Residence
2. Salary
- Determined by law
- Shall not be decreased during tenure
- No increase shall take effect until after
expiration of the term of the incumbent
during which such increase was approved.
3. Immunity from Suit
- President is immune from suit
- May not be prevented from instituting a
suit
- Immune from civil liability
- After tenure, cannot invoke immunity
from suit for civil damages arising out of
acts done by him while he was President
which was not performed in the exercise of
official duties.

Rules on Succession
- Vacancy at the BEGINNING of term

55

Nachura Notes Constitutional Law

President transmits to Senate President


and Speaker
His written declaration that he is unable
to discharge the powers and duties of his
office
Until he transmits a written declaration
to the contrary
Powers and duties shall be discharged by
the VP as Acting President
Majority of the members of the Cabinet
transmit to Senate President and Speaker
Written declaration that the President is
unable to discharge the powers and duties of
his office
VP shall IMMEDIATELY assume the
powers and duties of the office as Acting
President
IF President shall transmit written
declaration that no such disability exists
He shall reassume the powers and duties
of his office
IF majority of the members of the
Cabinet transmit within 5 days to SP and
Speaker their written declaration that the
President is unable to discharge the powers
and duties of his office,
Congress shall decide the issue
Congress shall convene within 48 hours,
if not in session
w/in 10 days from receipt of last
declaration OR if not in session w/in 12 days
after it is required to assemble Congress
determines by 2/3 vote of both Houses,
voting separately
that President is unable VP shall act
as President; Otherwise, President shall
continue exercising the powers and duties of
his office.

DEATH
or VP-elect
shall
PERMANENT
become President
DISABILITY
of
President elect
President-elect fails to VP-elect shall act
qualify
as President until
President-elect
shall have qualified
President shall not VP-elect shall act
have been chosen
as President until
President-elect
shall have been
chosen
and
qualified
No President and VP:
Senate President or
- Chosen
in case of his
- Qualified
disability,
the
- Both died
Speaker of the
- Both
become House shall act as
permanently disabled
President until a
President or VP
shall been chosen
and qualified.
In case of inability
of both, Congress
shall,
by
law
provide for the
manner by which
one who is to act
as President shall
be selected until a
President or VP
shall
have
qualified.
-

Vacancy DURING the term


Death, permanent disability, removal
from office or resignation of President
VP shall become President
Elements of Valid Resignation:
1. intent to resign
2. act of relinquishment
-

Constitutional Duty of Congress in case of


Vacancy in the Offices of President and VP
- 10:00am, 3rd day after the vacancy
occurs
- Congress shall convene without need of
call

Temporary Disability

56

Nachura Notes Constitutional Law

- w/in 7 days enact a law calling for a


special election to elect a President and VP
- election held not earlier than 45 days nor
later than 60 days from time of such call
- bill shall be deemed certified and shall
become law upon approval on 3rd reading by
Congress
- convening cannot be suspended
- election cannot be postponed
- IF vacancy occurs w/in 18 months
before the date of the next presidential
election NO special election

10) Others
a. Call Congress to special session
b. Power to approve or veto bolls
c. Consent to deputation of government
personnel by COMELEC
d. Discipline such deputies
e. Emergency powers, by delegation from
Congress
f. General supervision over LGs and
autonomous regional governments
Executive Power
- Executive Power: power to enforce and
administer the laws
- Power of carrying out the laws into
practical operation and enforcing their due
observance
- Authority to Reorganize the Office of
the President to achieve simplicity,
economy and efficiency.
- Power to reorganize the OP under
Section 31 (1) of EO 292 (Administrative
Code) President can reorganize the OP
proper by abolishing, consolidating or
merging units or by transferring functions
from one unit to another
- Power to reorganize the OP under
Section 31 (2) and b(3) of EO 292
(Administrative Code) power of the
President to reorganize offices outside of the
OP proper is limited to merely transferring
functions/agencies
from
OP
to
Departments/Agencies and v.v.
- It is not for the President to determine
the validity of the law, it is the function of
the judiciary. Unless and until such law is
declared unconstitutional, President has the
duty to execute it.

Removal of President: Impeachment


Vice-President
Qualifications
1. natural-born citizen
2. registered voter
3. able to read and write
4. on the day of the election, at least 40
years old
5. resident of the Philippines for at least 10
years immediately preceding such election
Term: No VP shall serve for more than 2
successive terms.
Vacancy in VP
- President shall nominate a VP from
among members of Senate and House
- Assume office upon confirmation by a
majority vote of all Members of both
Houses of Congress, voting separately
Powers of the President
1) Executive Power
2) Power of Appointment
3) Power of Control
4) Military Powers
5) Pardoning Power
6) Borrowing Power
7) Diplomatic Power
8) Budgetary Power
9) Informing Power

Power of Appointment
- Nominate and with consent of the
Commission on Appointments, appoint:
a. Heads of the executive departments
b. Ambassadors
c. Other public ministers and consuls

57

Nachura Notes Constitutional Law

d. Officers of the armed forces from the


rank of colonel or naval captain
e. Other officers whose appointments are
vested in him in this Constitution
- Appoint all other officers of the
Government whose appointments are not
otherwise provided by law
- Appoint those whom he may be
authorized by law to appoint.
- Congress may by law, vest appointment
of other officers lower in rank in the
a. President alone,
b. Courts
c. Heads
of
departments/agencies/commissions/boards
- Appointment: selection, by the authority
vested with the power, of an individual who
is to exercise the functions of a given office.
Designation: imposition of additional
duties, usually by law, to one who is already
in public service
Commission: written evidence of
appointment
- Classification of Appointments
a. Permanent extended to persons
possessing the requisite eligibility and are
protected by security of tenure
b. Temporary extended to persons
without requisite eligibility, revocable at
will, without necessity of just cause or valid
investigation
Not subject to confirmation by
Commission on Appointment
If confirmation erroneously given, will
not make it a permanent appointment
Designation is considered only an acting
or temporary appointment
c. Regular made by President while
Congress is in session
Takes effect upon confirmation of
Commission on Appointment
Once approved, continues until end of
term of the appointee

d. Ad interim made by President while


Congress is not in session

Takes effect immediately but ceases to


be valid if disapproved by the Commission
on Appointments or upon next adjournment
of Congress (by-passed through inaction)
Intended to prevent interruptions in vital
government services
Permanent and cannot be withdrawn by
the President once the appointee has
qualified
If disapproved by the Commission on
Appointments can no longer be extended
a new appointment; decision of the
Commission is final and binding
If by-passed President is free to
renew the ad interim appointment
- Officials who are appointed by the
President
Does NOT require confirmation by COA
a. Commissioner of Customs
b. Philippine Coast Guard
c. Chairman of Commission of Human
Rights
d. NLRC Chairman and Commissioners
- Congress cannot by law require
confirmation of appointments of government
officials other than those mentioned in the
Constitution
- Steps in the Appointing Power
a. Nomination by President
b. Confirmation by COA
c. Issuance of the Commission
- Appointment is deemed complete upon
acceptance; pending such acceptance, the
appointment may still be validly withdrawn
- Discretion of Appointing Authority
includes the determination of the nature ad
character of appointment
- In case of vacancy in an office occupied
by an alter ego of the President, e.g.
Department Secretary, the President
necessarily appoint the alter ego of his
choice. Congress, cannot by law, compel the
President to appoint automatically the
undersecretary as his temporary alter ego.
An alter ego, temporary or permanent, holds
a position of great trust and confidence.
58

Nachura Notes Constitutional Law

- Special Limitations on the Presidents


Appointing Power
1. may not appoint his spouse or relatives
by consanguinity or affinity, within the 4th
civil degree as
a. members of Constitutional Commission
b. Ombudsman
c. Secretaries
d. Undersecretaries
e. Chairmen/heads
of
bureaus/offices/GOCCs
2. appointments made by acting president
shall remain effective unless revoked by
elected President w/in 90 days from
assumption of office
3. 2 months immediately before the next
presidential election and up to the end of his
term, a President or acting President shall
not make appointments EXCEPT temporary
appointments to executive positions when
continued vacancies will prejudice public
service or endanger public safety
No law that prohibits local executive
officials
4. Congress power to prescribe
qualifications
5. Judiciary may annul an appointment
made by President of the appointee is not
qualified or has not been validly confirmed.
- Power of Removal
Implied from power of appointment
President cannot remove officials
appointed by him where the Constitution
prescribes certain methods for separation of
such officers from service
Chairman and commissioners of
Constitutional
Commissions

impeachment
Judges disciplining authority of SC
Where power of removal is lodged in
President:
a. Cause as may be provided by law
b. Prescribed administrative procedure
Members of career service of the Civil
Service who are appointed by the President
may be directly disciplined by him

Members of Cabinet and Officers whose


continuity in office depends upon pleasure
of President replaced any time;
separation is not by removal but
EXPIRATION of term.
Power of Control
- President shall have control of all
Executive departments
Bureaus
Offices
- Control: power of an officer to alter,
modify, set aside, or nullify what a
subordinate had done in the performance of
his duties and to substitute the judgment of
the former for that of the latter.
Supervision: overseeing; the power of an
officer to see that subordinate officers
perform their duties, and if the latter fails or
neglects to fulfill them, then the former may
take such action or steps as prescribed by
law to make them perform these duties.
- Alter
Ego
Principle/Doctrine
of
Qualified Political Agency
All executives and administrative
organizations are adjuncts of the Executive
department
The heads of the various executive
departments are assistants and agents of the
Chief Executive
And, except in cases where the Chief
Executive is required by the Constitution or
law to act personally OR the exigencies of
the situation demand that he act personally,
the
multifarious
executive
and
administrative functions of the Chief
Executive are performed by and through the
executive departments,
And the acts of Secretaries, performed
and promulgated in the regular course of
business are, unless disapproved or
reprobated are presumptively the acts of the
Chief Executive.

59

Nachura Notes Constitutional Law

- President may exercise powers conferred


by law upon Cabinet members or
subordinate executive officers.
- Power of the president to reorganize the
National Government may validly be
delegated to his Cabinet members exercising
control over a particular executive
department.
- Appeal to the President from decisions
of executive officers, including Cabinet
members, complete the exhaustion of
administrative remedies.
Exception: Doctrine of Qualified
Political Agency applies, in which case the
decision of Cabinet Secretary carries the
presumptive approval of the President, thus
there is no need to appeal to the President.
- Power of control may be exercised over
the acts, NOT over the actors
- Power of control of Secretary of Justice
over prosecutors
Decisions/Resolutions of prosecutors are
subject to appeal to the Secretary of Justice
who exercises power of direct control and
supervision over prosecutors.
Where Secretary exercises power of
review only after an information is filed, TC
should defer or suspend arraignment and
other proceedings until appeal is resolved.
HOWEVER, the TC is not ipso facto bound
by the resolution of the Secretary, because
jurisdiction, once acquired is not lost despite
the resolution of the Secretary to withdraw
the information or to dismiss the case.
- Power of general supervision over local
governments.
- President can only interfere in the affairs
and activities of a local government unit of
he finds that the latter had acted contrary to
law.
Otherwise, violative of local autonomy.
- Local fiscal autonomy: automatic release
of LGU shares in the national internal
revenue.
Military Powers

- Commander-in-Chief of all armed forces


of the Philippines
- If necessary, he may call out such armed
forces to prevent or suppress lawless
violence, invasion or rebellion.
- In case of invasion or rebellion, when
public safety requires it, he may, for a period
not exceeding 60 days, suspend the privilege
of the writ of HC or place the Philippines or
any part thereof under martial law.
- Commander-in-Chief Clause
Conduct of saturation drives or areal
target zoning
Exercises discretionary power
Only criterion, whenever it becomes
necessary
Discretionary authority to declare state
of rebellion
Court may only look into the sufficiency
of the factual basis for the exercise of the
power.
Mere declaration of a state of rebellion
cannot diminish or violate constitutionally
protected rights
Power to organize courts martial for the
disciple of members of the armed forces
Power to create military commissions
for the punishment of war criminals
Military tribunals cannot try civilians
when civil courts are open and functioning
Members of the PNP are not within the
jurisdiction of the military court
RA 7055, lawmakers intended to return
to civilian courts jurisdiction over offenses
that have traditionally within their
jurisdiction but did not divest the military
courts jurisdiction over cases mandated by
the Article of War
a. Disrespect towards the President
b. Disrespect towards Superior Officer
c. Sedition/Mutiny
d. Conduct Unbecoming an Officer and a
Gentleman
e. General Articles of the Articles of War
- Suspension of the privilege of the writ of
HC
60

Nachura Notes Constitutional Law

- May grant Amnesty with concurrence of


a majority of all members of the Congress
- Pardon: act of grace which exempts the
individual from punishment that the law
inflicts upon the crime he has committed
- Commutation: reduction or mitigation of
penalty
- Reprieve: postponement of sentence/
stay of execution
- Parole: release from imprisonment but
still in custody of law although not in
confinement
- Amnesty: act of grace, with concurrence
of legislature, usually extended to group of
persons who committed political offenses,
puts into oblivion the offense itself
- Discretionary exercise by the President
- Cannot be controlled by Legislature or
reversed by courts unless there is a
constitutional violation.
- Limitations:
1) Cannot be granted in cases of
impeachment
2) Cannot be granted in cases of violation
of election offenses w/o favorable
recommendation of COMELEC
3) Cannot be granted in cases of legislative
contempt or civil contempt
4) Cannot absolve civil liability
5) Cannot restore public offices forfeited
- Exceptions: on consideration of justice
and equity, entitled to reinstatement (Sabello
vs. DECS)
6) Only after conviction by final judgment
- Classification of Pardon:
1) Plenary or partial
2) Absolute or conditional
Conditional pardon is in the nature of a
contract between the Chief Executive and
the convicted criminal.
By the pardonees consent to the terms
stipulated in the contract, the pardonee has
placed himself under the supervision of the
Chief Executive or his delegate who is duty
bound to see to it that the pardonee complied
with the conditions of the pardon

Grounds: invasion or rebellion, when


public safety requires it
Duration: not to exceed 60 days, unless
extended by Congress
Duty of President to Report action to
Congress: w/in 48 hours, personally or in
writing
Congress may revoke or extend by a
majority vote of all its members, voting
jointly
SC may review upon proceeding filed by
any citizen, as to the sufficiency of factual
basis. It must promulgate its decision w/in
30 days from its filing.
Suspension does not impair the right to
bail.
Suspension applies to persons judicially
charged for rebellion or offenses inherent in
or directly connected with invasion
During suspension, any person thus
arrested shall be judicially charged w/in 3
days, otherwise he shall be released.
- Martial Law
NOT Suspend operation of the
Constitution
NOT Supplant the functioning of civil
courts or legislative assemblies
NOT
authorize
conferment
of
jurisdiction on military courts and agencies
over civilians where civil courts are able to
function
NOT automatically suspend the privilege
of the writ
Pardoning Power
- Except in cases of IMPEACHMENT or
AS OTHERWISE PROVIDED IN THE
CONSTITUTION
- May grant, after conviction by final
judgment
a. Reprieves
b. Commutations
c. Pardons
d. Remit fines and forfeitures

61

Nachura Notes Constitutional Law

- No treaty or international agreement


shall be valid and effective unless concurred
in by at least 2/3 of all members of the
Senate.
- Treaties vs. International Agreements

President is authorized to order the arrest


or re-incarceration of such a person, if he
fails to comply with the conditions of his
pardon.
Such exercise of Presidential judgment
is beyond judicial scrutiny.
- Amnesty
Stands before the law precisely as
though he had committed no offense
Criminal liability is totally extinguished
To avail of the benefit, must admit the
guilt of the offence covered by the
proclamation

AMNESTY
Addressed
to
political offenses
Classes of persons
No need for distinct
acts of acceptance
Concurrence
by
Congress
Public act which
courts may take
judicial notice
Looks back and puts
into oblivion the
offense itself

Treaties
Formal documents
require ratification
International
agreements which
involve
political
issues or changes of
national policy

PARDON
Infractions of peace
of the state
Individual
Acceptance needed

Involving
arrangements
permanent
character

Nope
Private act which
must be pleaded and
proved
Looks forward and
relieves pardonee of
the consequences of
the offenses

of

International
Agreements
Become
binding
through
executive
action
International
agreements involving
adjustments
of
details carrying out
well
established
national
policies
and traditions
Involving
arrangements of a
more
or
less
temporary nature

- It is immaterial whether US treats the


VFA as merely an executive agreement
because, under international law, an
executive agreement is just as binding as a
trearty.
Budgetary Power
- Submit to Congress within 30 days from
opening of its regular session
- A budget of expenditures and sources
of financing, including receipts from
existing and proposed revenue measures
- As basis of the general appropriations
act

Borrowing Power
- Contract or guarantee foreign loans on
behalf of the Republic, with prior
concurrence of Monetary Board and subject
to such limitations as may be provided by
law.
- MB, shall w/in 30 days from end of
every quarter, submit to the Congress a
complete report of its decisions on
applications for loans to be contracted or
guaranteed by the Government/GOCC
which would have the effect of increasing
the foreign debt, and containing other
matters as may be provided by law.
Diplomatic Power

Informing Power
- Address Congress at the opening of its
regular session
- May appear before it at any other time
X. JUDICIAL DEPARTMENT
Judicial Power

62

Nachura Notes Constitutional Law

- Duty of the courts of justice to settle


actual controversies involving rights which
are legally demandable and enforceable, and
to determine whether or not there has been
grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any
branch or instrumentality of the government.
- Political questions forbidden territory
of courts
- Inherent power of Courts to amend and
control its processed and orders so as to
make them comformable with law and
justice.
- Right to reverse itself.

6. members of Judiciary have security of


tenure
7. members of Judiciary may not be
designated to any agency performing quasijudicial or administrative functions
8. salaries of judges may not be reduced;
Judiciary enjoys fiscal autonomy
9. SC alone may initiate ROC
10. SC alone may order temporary detail
judges
11. SC can appoint officials and employees
of judiciary
Qualifications
- Proven competence, integrity, probity
and independence +
- SC
1) Natural-born
2) At least 40
3) 15 years or more a judge of a lower
court or engaged in the practice of law in the
Philippines

Where vested
- 1 SC
- Such lower courts as may be established
by law
Jurisdiction
- Power to hear and decide a case
- Congress shall have the power to define,
prescribe and apportion the jurisdiction of
various courts, but may not deprive SC of its
jurisdiction over cases enumerated in
Section 5, Article VIII
- No law shall be passed increasing
appellate jurisdiction of SC without its
advice and concurrence

- Lower Collegiate Courts


1) Natural-born
2) Member of Philippine Bar
3) Congress
may
prescribe
qualifications
- Lower Courts
1) Citizen
2) Member of Philippine Bar
3) Congress
may
prescribe
qualifications

Constitutional
Safeguards
to
Insure
Independence of SC
1. SC is a constitutional body; it may not
be abolished by legislature
2. members of SC are removable only by
impeachment
3. SC may not be deprived of its original
and appellate jurisdiction; Appellate
jurisdiction may not be increased without its
consent and concurrence
4. SC has administrative supervision over
all inferior courts and personnel
5. SC has exclusive power to discipline
judges and justices of inferior courts

other

other

Procedure for Appointment


- Appointed by the President from a list of
nominees prepared by Judicial and Bar
Council
- Lower Courts: appointed by President
w/in 90 days from submission of list
Judicial and Bar Council
- Composition
Ex-officio Members
1) CJ as Chairman

63

Nachura Notes Constitutional Law

2)
3)

1)
2)
3)
4)

Justice Secretary
Representative of Congress
Regular Members
Representative of IBP
Professor of Law
Retired justice of SC
Representative of private sector
Secretary ex-officio: clerk of SC

modified or reversed except by the court


sitting en banc
Powers of the SC
1) Original Jurisdiction
2) Appellate Jurisdiction
3) Temporary Assignment of judges of LCs
to other stations as public interest may
require
4) Order change of venue or place of trial,
to avoid miscarriage of justice
5) Rule-Making Power
6) Power of Appointment
7) Power of Administrative Supervision
8) Annual Report

- Appointment: regular members shall be


appointed by President for a term of 4 years,
with consent of COA; shall receive
emoluments as determined by SC
- Powers/Functions:
Principal
function:
recommending
appointees to Judiciary
Exercise such other functions and duties
as SC may assign

Original Jurisdiction
1) Cases affecting ambassadors, public
ministers and consuls
2) Petition for certiorari, prohibition,
mandamus
3) Quo warranto
4) Habeas corpus

Supreme Court
Composition
1 CJ
14 Associate Justices
May sit en banc or in its discretion, in
divisions of 3, 5 or 7 members
Vacancy shall be filled within 90 days
from occurrence
En Banc concurrence of a majority of
the members who took part in the
deliberations and voted
1) Constitutionality
of
a
treaty,
international or executive agreement, or law
2) All others required by ROC
3) Constitutionality,
application
or
operation of PDs, orders, instructions,
ordinances and other regulations
Division - concurrence of a majority of
the members who took part in the
deliberations and voted and in no case
without the concurrence of at least 3 such
members
When required number is not obtained
case shall be decided en banc (case
decided NOT matters - resolved)
No doctrine or principle of law laid by a
court sitting en banc or in a division, may be

Appellate Jurisdiction review, revise,


reverse, modify, or affirm on appeal or
certiorari as the ROC may provide final
judgments and orders of lower courts in:
1) All
cases
involving
constitutionality/validity of any treaty,
international or executive agreements, law,
PD, proclamation, order, instruction
ordinance or regulation is in question
2) All cases involving legality of any tax,
impost, assessment or toll or any penalty
imposed in relation thereto
3) Jurisdiction of lower court is in issue
4) All criminal cases in which penalty
imposed is RP or higher
5) All cases in which only an error or
question of law is involved
- Does not include power of SC to review
decisions of administrative bodies

64

Nachura Notes Constitutional Law

- Penalty is RP, accused must appeal.


Otherwise, judgment of conviction will
become final and executory
- If death, TC shall forward records for
automatic review
- Question of Law: correct application of
law or jurisprudence to a certain set of facts;
when the issue does not call for an
examination of the probative value of the
evidence, the truth or falsehood of the facts
being admitted.

Payment of dues is a necessary


consequence of membership in the IBP, of
which no one is exempt
Practice of law is a privilege and as such
must bow to the inherent regulatory power if
the SC
- Writ of Amparo: writ that may be issued
by the courts, based on the constitutional
power of the SC to promulgate rules, for the
protection and enforcement of constitutional
rights.
- Congress cannot amend the ROC
- Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the SC

Temporary Assignment of judges of LCs to


other stations as public interest may require
Order change of venue or place of trial, to
avoid miscarriage of justice

Power of Appointment
- Appoint all officials and employees of
the Judiciary in accordance with Civil
Service Law

Rule-Making Power
- Promulgate rules:
1) Protection
and
enforcement
of
constitutional rights
2) Pleadings
3) Practices
4) Procedure in all courts
5) Admission to practice of law
6) Admission to TB
7) Legal assistance to underprivileged
- Limitations:
1) Simplified and inexpensive procedure
2) Uniform in all courts of the same grade
3) Not diminish, increase or modify
substantive rights
- Integrated Bar
State-organized bar to which each
lawyer must belong
Official unification of entire lawyer
population, where each lawyer is given the
opportunity to do his share in carrying out
the objectives of the Bar as well as obliged
to bear his portion of its responsibilities
Requires membership and financial
support of every atty as a condition sine qua
non to the practice

Power of Administrative Supervision


- Administrative supervision over all
courts and personnel
- Ombudsman may not initiate or
investigate a criminal or administrative
complaint before his office against a judge,
he must first indorse the case to the SC
- Administrative proceedings before the
SC are confidential in nature.
Annual Report
- Submit, within 30 days from opening
of each regular session of Congress to the
President and to Congress an annual report
on the operations and activities of the
Judiciary.
Consultations/Decisions of SC
1) Conclusions in any case submitted to it
for decision shall be reached in consultation
before the case is assigned to a member for
the writing of the opinion of the Court. A
certification to this effect signed by the CJ
shall be issued.
- N/A to administrative cases

65

Nachura Notes Constitutional Law

- Applicable to lower collegiate bodies


- Votes are equally divided and majority is
not obtained, petition shall nbbe dismissed
2) The decision shall state clearly and
distinctly the facts and the law on which it is
based.
- N/A to:
1) Minute resolution dismissing a petition
for HC, certiorari and mandamus
2) Administrative cases
- Decision need not be a complete recital
of the evidence presented
- Factual and legal basis are clearly and
distinctly set forth
- Imperative that decision is not limited to
dispositive part; must
1) State nature of the case
2) Summarize the facts w/ reference to
record
3) Contain statement of applicable law and
jurisprudence
4) Tribunals statement and conclusion of
the case
3) No petition for review or MR shall be
refused due course or denied without stating
the legal basis.

NOTE: only cases involving dismissal of


judges of LCs are required to be decided by
the Court en banc.
First clause: declaration of grant of the
disciplining power to and the determination
of the procedure in the exercise by the Court
en banc
Grounds for the removal of a judicial
officer should be established beyond
reasonable doubt, particularly where the
charges on which removal is sought are
misconduct in office, willful neglect,
corruption, incompetence, etc.
Judges cannot be disciplined for every
erroneous order or decision rendered in the
absence of a clear showing of ill motive,
malice or bad faith.
The absence of bad faith or malice will
not totally exculpate them from charges of
incompetence and ignorance of the law
when they render decisions that are totally
bereft of factual and legal bases.
- No law shall be passed reorganizing the
Judiciary when it undermines the security of
tenure of its members.

Salaries
- Fixed by law
- May not be decreased during their
continuance in office
- Imposition of income tax on salaries of
judges does not violate the constitutional
prohibition against decrease in salaries

Tenure of Judges/Justices
- SC: Justices may be removed only by
impeachment
Special Prosecutor has no authority to
conduct an investigation on charges against
a member of the SC, in view of filing a
criminal information. Because if found
guilty, he will be removed from office
violation of his security of tenure.
- LC: Judges shall hold office during
GOOD BEHAVIOR until they reach the age
of 70 or become INCAPACITATED to
discharge the duties of their offices.
SC en banc shall have the power to
discipline judges of LCs, or order their
dismissal by a vote of a majority of the
members who took part in the deliberations
and voted

Periods of Decisions
- All cases filed after the effectivity of the
Constitution must be decided and resolved,
from date of submission
24 months SC
12 months lower collegiate courts
3 months all other lower courts
- Unless in the 2 latter cases, the period is
reduced by the SC
- Certification to be signed by the Chief
Justice/Presiding Justice shall be issued
stating the reason for delay

66

Nachura Notes Constitutional Law

- Must not sacrifice for expediencys sake


the fundamental requirements of due process
- sin perjuicio judgment without a
statement of the facts in support of its
conclusions, to be later supplemented by the
final judgment.
- Designed to prevent delay in the
administration of justice.
- Failure to decide cases within the
prescribed period is not excusable and
constitute gross inefficiency which is a
ground for administrative sanction against
the defaulting judge.
- Judges who cannot comply with this
mandate should ask for additional time,
explaining in their request the reasons for
the delay.
- Despite expiration of the mandatory
period, the court, without prejudice to such
responsibility as may have been incurred in
consequence thereof, shall decide or resolve
the case or matter submitted to it without
further delay.
- Court does not lose jurisdiction despite
the lapse of the mandatory period.

commission vested with fiscal autonomy


should be construed to mean that no
condition to fund releases to it may be
imposed.
Provision in Section 3, Article VIII,
prohibiting
the
reduction
in
the
appropriation for the Judiciary below the
amount appropriated for the previous year
does not appear in Section 5, Article IXA. Congress is not prohibited from
reducing the appropriations Constitutional
Commissions
below
the
amount
appropriated for them for the previous year.
5. promulgate its own procedural rules,
provided they do not diminish, increase or
modify substantive rights (subject to
disapproval by the SC)
6. appoint their own officials and
employees in accordance with Civil Service
Law
7. Chairman and members removed only
by impeachment
8. Chairman and members are given a
fairly long term of 7 years
9. Chairman and members may not be
reappointed or appointed in an acting
capacity
10. salaries of Chairman and members are
relatively high and may not be decreased
during continuance in office
11. Chairman and members are subject to
certain disqualification calculated to
strengthen their integrity

XI. CONSTITUTIONAL COMMISSION


Independent Constitutional Commission
1. Civil Service Commission
2. COMELEC
3. Commission on Audit
Safeguards Insuring the Independence of the
Commission
1. constitutionally created, and not be
abolished by statute
2. expressly described as independent
3. conferred certain powers and functions
which cannot be reduced by statute
4. enjoy fiscal autonomy
no report, no release policy may not be
validly enforced against offices vested with
fiscal autonomy.
Automatic release of approved annual
appropriations
to
a
constitutional

Inhibitions/Disqualifications
1. not hold any other office or employment,
during tenure
2. not engage in the practice of any
profession
3. not engage in the active management or
control of any business which in any way
may be affected by the functions of his
office
4. not be financially interested, directly or
indirectly, in any contract or in any franchise
or privilege granted by the Government

67

Nachura Notes Constitutional Law

- Judgment of the COA are not reviewable


by ordinary writ of error or appeal by
certiorari to the SC. Only when COA acts
without or in excess of jurisdiction, or with
GAD amounting to lack or excess of
jurisdiction, may this court entertain a
petition for certiorari under R65.
- Decisions of the CSC shall be appealable
by certiorari to the CA w/in 15 days from
receipt of a copy. From the decision of the
CA, the party adversely affected thereby
shall file a petition for review on certiorari
under R45.

Rotational Scheme of Appointments


- First appointees serve terms of 7, 5 and 3
years.
- After the first commissioners are
appointed, the rotational scheme is intended
to prevent the possibility of one President
appointing all the Commissioners.
- Rotational plan requires:
1. terms of the first commissioners should
start on a common date
2. any vacancy due to death, resignation or
disability before the expiration of the term
should only be filled for the unexpired
balance of the term.

Enforcement of Decision
- Final decision of the CSC are
enforceable by writ of execution which CSC
may itself issue.

Decisions
1. Each Commission shall decide by a
majority vote of all its members any case or
matter brought before it w/in 60 days from
the date of its submission for decision or
resolution.
- Majority vote of ALL members and not
only of those who participated in the
deliberations and voted thereon.
- Retired prior to promulgation of decision
votes should be considered withdrawn, as
if they had not signed the resolution; only
the votes of the remaining commissioners
shall be counted.
- Treat the procedural requirements on
deadlines realistically.
2. Aggrieved party may bring the decision
to the SC on certiorari w/in 30 days from
receipt of copy
- When Court reviews a decision of the
COMELEC,
the
Court
exercises
extraordinary
jurisdiction;
thus
the
proceeding is limited to issues involving
grave abuse of discretion resulting in lack or
excess of jurisdiction and does not ordinarily
empower the Court to review factual
findings.
- Certiorari under R65 is the appropriate
remedy.

CIVIL SERVICE COMMISSION


Composition
- Chairman
- 2 Commissioners
Qualifications
1. Natural-born
2. at the time of the appointment at least 35
years old
3. proven
capacity
for
public
administration
4. not have been candidates for any elective
position in the election immediately
preceding their appointment
Term
- Appointed by the President with the
consent
of
the
Commission
on
Appointments
- Term of 7 years, without reappointment
- In no case shall any member be
appointed or designated in temporary or
acting capacity.
Constitutional Objective/Function

68

Nachura Notes Constitutional Law

1. central personnel agency of the


Government
2. establish a career service
3. adopt measures to promote morale,
efficiency,
integrity,
responsiveness,
progressiveness and courtesy in the civil
service
4. strengthen merit and reward system
5. integrate
all
human
resources
development programs for all levels and
ranks
6. institutionalize a management climate
conducive to public accountability

- with original charter refers to


corporation chartered by special law as
distinguished from corporations organized
under the Corporation Code
- Includes:
1. Economic Intelligence and Information
Bureau
2. Jose M. Rodriguez Hospital
3. Philippine National Red Cross
4. UP
5. Morong Water District
- N/A:
1. National Housing Corporation

- Granting civil service eligibility to


employees under provisional or temporary
status who have rendered 7 years of efficient
service is DISCRETIONARY on the CSC
and may not be compelled by mandamus to
issue such eligibility.
- CSC cannot validly abolish Career
Executive Service Board
- Power to hear and decide administrative
cases instituted before it directly or on
appeal, including contested appointments.
- Power to recall an appointment initially
approved in disregard of the applicable
provisions of the Civil Service law and
regulations.
- Original jurisdiction to hear and decide a
complaint for cheating in the CS
examinations by a government employee.
- Decisions of lower level officials in
cases involving personnel actions be
appealed to the agency head then to the
CSC. (not RTC)
- CSC does not have appellate jurisdiction
over a case of separation from government
service under Section 2, Article II of the
Provisional Constitution.

Classes of Service
1. Career Service
a. Description
- Entrance based on merit and fitness, as
far as practicable by competitive
examinations
- Or based on highly and technical
qualifications
- Opportunity for advancement to higher
career positions
- Security of tenure
b. Includes:
1) Open Career Service
- Prior qualification in an appropriate
examination is required
2) Closed Career Service
- Scientific or highly technical
3) Career Executive Service
- Undersecretaries, bureau directors, etc.
4) Positions in the Armed Forces of the
Philippines
- Governed by a different merit system
5) Career Officers
- Other than those belonging to Career
Executive Service, appointed by President,
e.g. foreign service
6) Personnel of GOCC w/ original charters
7) Permanent laborers (skilled, semi-skilled
or unskilled)
c. Incumbents of positions which are
declared to be CES positions for the first
time who hold permanent appointments

Scope of the CS
- Embrace ALL branches, subdivisions,
instrumentalities and agencies of the
Government, including GOCCs with
original charter

69

Nachura Notes Constitutional Law

shall remain under permanent status in their


position. Upon promotion or transfer to
other CES positions, these incumbents shall
be under temporary status in said other CES
positions until qualify,
d. Mere fact that a position belongs to the
CES does not automatically confer security
of tenure on the applicant. Such right will
have to depend on the nature of his
appointment which depends on his
eligibility or lack of it.
e. A person who does not have the
requisite qualifications for the position
cannot be appointed.
- Exception: acting capacity in the
absence of appropriate eligibles.
f. Security of Tenure in the CES pertains
only to RANK and not to the office or the
position to which they may be appointed.
1) Career executive service eligibility
2) Appointment to the appropriate career
executive service rank
2. Non-Career Service
a. Description
- Entrance on bases other than those of the
usual tests utilized for the career service
- Tenure
1) limited to a period specified by law or
2) which is co-terminous with that of the
appointing authority or
3) subject of his pleasure or
4) which is limited to the duration of a
particular project for which purpose the
employment was made.
b. Includes:
1) Elective
officials,
personal
and
confidential staff
2) Department Heads and officials of
Cabinet rank who holds office at the
pleasure of the President, personal and
confidential staff
3) Chairmen
and
members
of
commissions/boards w/ fixed terms of
office, personal and confidential staff
4) Contractual personnel/ those whose
employment in government is in accordance

with a special contract to undertake a


specific work or job requiring special or
technical skills not available in employing
agency, to be accomplished within a period
not exceeding 1 year, under his own
responsibility, with minimum direction and
supervision
5) Emergency and seasonal personnel
- Under Administrative Code, the CSC is
expressly empowered to declare positions in
the CS as primarily confidential.
- Enumeration in the Civil Service decree,
which defined the non-career service is not
an exclusive list
Appointments in Civil Service
- According to merit and fitness to be
determined, as far as practicable by
competitive examination
- Except to positions which are:
1) Policy-determining
2) Primarily confidential or
3) Highly technical
- Principles
1) Classification of a particular position as
policy-determining, primarily confidential or
highly technical amounts to no more than an
executive or legislative declaration that is
not conclusive upon the courts, the true test
being the nature of the position
2) The exemption provided pertains only to
exemption from competitive examination to
determine merit and fitness to enter the civil
service
- Exempt from competitive examination to
determine merit and fitness:
1) Policy-determining
Officer lays down principal or
fundamental guidelines or rules
E.g. department head
2) Primarily confidential
Not only confidence in the aptitude if the
appointee for the duties of the office but
primarily close intimacy which ensures
freedom
of
intercourse
without

70

Nachura Notes Constitutional Law

embarrassment or freedom from misgivings


or betrayal on confidential matters of state
NATURE of the position which
determined whether a position is primarily
confidential, policy-determining or highly
technical
proximity rule can be considered as
confidential employee if the predominant
reason why he was chosen by the appointing
authority was the latters belief that he can
share a close intimate relationship with the
occupant which ensures freedom of
discussion without fear of embarrassment or
misgivings of possible betrayals of personal
trust or confidential matters of the State.
Where the position occupied is remote
from that of the appointing authority, the
element of trust between them is no longer
predominant, and cannot be classified as
primarily confidential.
3) Highly technical requires possession of
technical skill in a superior degree.

demands that the position be filled even in a


temporary capacity.
Role of the CSC
Check if the appointee possesses the
qualifications and appropriate eligibility; if
he does, appointment is approved; if he
doesnt, appointment is disapproved.
Selection or placement is made through
the Placement Committee, the members of
which are the representatives of the head of
the agency as well as representatives of the
employees. Said Committees work is
merely recommendatory.
Appointment should be submitted to the
CSC w/in 30 days from issuance; otherwise,
it shall be ineffective.
CSC Memorandum Circular only the
appointing authority has the right to
challenge the CSCs disapproval of an
appointment.
Abella, Jr. vs. CSC both the
appointing authority and the appointee are
the real parties in interest and both have
legal standing
Challenge to the appointing authoritys
discretion
While appointee has no vested right to
the position, it was his elgibility that was
being questioned; he has a personal stake in
the outcome

Discretion of the Appointing Authority


Where the appointee possesses the
minimum
qualification
requirements
prescribed by law for the position, the
appointing authority has discretion who to
appoint.
Even if officers and employees in the
career service of the Civil Service enjoy
preference in the promotion, it is not
mandatory that the vacancy be filled by
promotion.
Discretion of the appointing authority is
not only in the choice of the person who is
to be appointed, but also in the nature or
character of the appointment issued.
CSC
cannot
convert
temporary
appointment to a permanent one
arrogation of power belonging to appointing
authority.
May approve as merely temporary an
appointment intended to be permanent when
the appointee does not possess the requisite
eligibility and the exigency of the service

Disqualifications
1) Lost in any election within 1 year
preceding the appointment
2) Elective official during tenure
3) Appointive official, except when
allowed by law or the primary functions of
his position
Ex-officio capacity
Security of Tenure
- Removed and suspended for case
provided by law.
- Ground, procedure for investigation and
the discipline of career service officers and
71

Nachura Notes Constitutional Law

EEs Career Service Law; Noncompliance constitutes denial of the right to


security of tenure
- Presidential
appointee

direct
disciplinary authority of the President
- Reassignment does not offend the
constitutional guarantee
- Reinstatement deemed not to have left
his office; entitled to payment of back
salaries, notwithstanding silence.
Payment of back wages during the
period of suspension of a civil servant who
is subsequently reinstated is proper only if
he is found innocent of the charges and the
suspension is unjustified.
BUT where the reinstatement is ordered
not as a result of exoneration but merely as
an act of liberality, the claim for back wages
was not allowed. It follows the general rule
that the public official is not entitled to
compensation if he has not rendered any
service.
- Valid abolition of office does not violate
the constitutional guarantee of security of
tenure.
- ROC, career service officer or employee
who has been unlawfully ousted from his
office has 1 year within which to file an
action in court to recover office.
Exception: Cristobal vs. Melchot
grounds of equity
- Appellate jurisdiction of the CSC only
over Merit System Protection Boards
decisions in administrative disciplinary
cases involving the imposition of the penalty
of suspension, fine, demotion in rank or
salary, transfer, removal, dismissal from
office not over MSPB decision
exonerating the accused. Only by the party
adversely affected (Not ER).
- He who, while occupying one office,
accepts another incompatible with the first,
ipso facto vacates the first office and his title
thereto is thereby terminated without any
other act of proceeding.

Canonizado vs. Aguirre: accepted


another position while case questioning the
law that removed him from his first position
was still pending.
Partisan Political Activity no officer or
employee in the civil service shall engage,
directly or indirectly, in any electioneering
or partisan political campaign
Except to vote
Does not prevent expression of views
regarding political problems or mention the
names of the public officers he supports
Applicable to military establishments
only to those in the active military service,
not to reservists
Exemptions:
1. members of the Cabinet
2. public officers and employees holding
political offices
The above 2 are allowed to take part in
political and electoral activities, except to
solicit contributions from their subordinates
or commit acts prohibited under the Election
Code.
The right to Self-organization shall not be
denied to government employees
May not engage in strikes to demand
changes in the terms and conditions of
employment because such are provided for
by law.
Temporary employees of the Government
shall be given such protection as may be
provided by law.
Standardization of Compensation
Provided for by Congress (and also
qualification required fir their positions)
Double Compensation
No elective or appointive public officer
or employee shall receive additional, double
or
indirect
compensation,
UNLESS
specifically authorized by law,
72

Nachura Notes Constitutional Law

order to expedite disposition of cases,


including pre-proclamation controversies.
All such election cases shall be heard
and decided in division, provided that
motions for reconsideration of decisions
shall be decided en banc.
Cases which must first be heard and
decided in division
1. all election cases, including preproclamation contests, originally cognizable
by the Commission
2. cancel certificate of candidacy
3. cases appealed from the RTC or MTC
(SC may motu proprio consider question of
jurisdiction)
4. petition for certiorari filed with
COMELEC from a decision of the RTC or
MTC
Exceptions:
1. error in tabulation results or tallying of
results by the Board of Canvassers, merely
clerical in nature (petition for correction of
manifest errors in the Statement of Votes)
2. prosecution cases involving violation of
election laws
The rule that all election cases shall be
heard and decided in division applies only
when the COMELEC exercises its
adjudicatory powers or quasi-judicial
functions, not when it exercises purely
administrative functions.

Nor accept without the consent of


Congress, any present, emoluments office or
title of any kind from any foreign
government.
Pensions and gratuities shall not be
considered as additional, double or indirect
compensation.
Retiree can continue to receive such
pension/gratuity even after he accepts
another government position to which
another compensation is attached.
Oath of Allegiance shall take an oath or
affirmation to uphold and defend this
Constitution
COMMISSION ON ELECTIONS
Composition
- Chairman
- 6 Commissioners
Qualifications
1. Natural-born
2. at the time of the appointment at least 35
years old
3. holder of a college decree
4. not have been candidates in the
immediately preceding election
5. majority, including the chairman, must
be member of the Philippine Bar who have
been engaged in the practice of law for at
least 10 years.

COMELEC decisions reviewable by the SC


1. decisions of COMELEC en banc, on
certiorari
2. only decision of COMELEC in the
exercise of its adjudicatory or quasi-judicial
power may be brought to SC on certiorari
if merely administrative in character
ordinary civil action before trial courts

Term
- Appointed by the President with the
consent
of
the
Commission
on
Appointments
- Term of 7 years, without reappointment
- In no case shall any member be
appointed or designated in temporary or
acting capacity.

COMELEC en banc shall promulgate rules


concerning pleadings and practice before it
or before any of its offices, but they must
not diminish, increase or modify substantive
rights

En Banc and Division cases


It may sit en banc of in 2 division, and
shall promulgate its rules of procedure in

73

Nachura Notes Constitutional Law

subject to the rule that rules of procedure


of special courts and quasi-judicial bodies
shall remain effective unless disapproved by
the SC
rules on civpro regarding demurrer to
evidence cannot apply to election cases,
even by analogy in suppletory character.
Authority to suspend reglamentary
periods provided by its rules, or the
requirement of NFS, in the interest of justice
and speedy resolution of cases. It is not
constrained to dismiss a case on the ground
of non-payment of filing fees.
Fingerprinting of chairman and members
of the Board of Election Inspectors is an
internal matter and may be done even
without prior notice.

After sufficient publication


Present platform/program of government
6) File petition in court for the
inclusion/exclusion of voters, upon verified
complaint or in its own initiative; investigate
and/or prosecute cases for violations of
election laws
7) Recommend to Congress effective
measures to minimize election spending,
limitation of places where propaganda
materials shall be posted and to prevent and
penalize all forms of election frauds,
offenses,
malpractice
and
nuisance
candidates
8) Submit to the President and Congress a
comprehensive report on the conduct of each
election, plebiscite initiative, referendum or
recall

Constitutional Powers and Functions


1) Enforce and administer all laws and
regulations relative to the conduct of an
election, plebiscite, initiative, referendum or
recall
2) Exclusive original jurisdiction
a. All contests relating to the elections,
returns and qualifications of all elective
regional, provincial and city officials.
Exclusive appellate jurisdiction
b. All contests involving elective municipal
officials decide by RTC
c. Elective barangay officials decided by
MTC
3) Decide all questions relating to elections
Determination of the number and
location of polling places
Appointment of election officials and
inspectors
Registration of voters
EXCEPT: right to vote
4) Deputize law enforcement agencies and
instrumentalities for the exclusive purpose
of ensuring free, orderly , honest and
peaceful and credible elections, with
concurrence of President
5) Accredit Citizens Arm and Register
political parties, coalitions or organizations

Enforce and administer all laws and


regulations relative to the conduct of an
election, plebiscite, initiative, referendum
or recall
Initiative: power of the people to
propose amendments to the Constitution or
to propose and enact legislation through an
election called for the purpose.
Referendum: power of the electorate to
approve or reject legislation through an
election called for the purpose
Recall:
termination
of
official
relationship of a local elective official for
loss of confidence prior to the expiration of
his term through the will of the electorate
Plebiscite: submission of constitutional
amendments or important legislative
measures to the people for ratification.
1) Broad powers promulgate rules and
regulations in the enforcement of laws
relative to elections
Enforcement of provisions of the
Omnibus Election Code exclusive
jurisdiction of the COMELEC
Includes the ascertainment of the
identity of a political party and its legitimate
officers

74

Nachura Notes Constitutional Law

2) Votes not cast would affect the result of


the election
6) Not authorized to make an unofficial
quick count of presidential election results

Does not authorize the COMELEC,


motu proprio, without the proper
proceedings, to deny due course to cancel a
certificate of candidacy filed in due form.
Election and contests involving election
of Sangguniang Kabataan elections do NOT
fall within jurisdiction of the COMELEC
DILG
Authority to annul results of plebiscite
(through pre-proclamation case of revision
of ballots)
2) Regulatory power over media of
transportation,
communication
and
information
to ensure equal opportunity, time, space,
right to reply, etc.
during election period
exercised only over the media, not over
practitioners of media
3) No pardon, amnesty, parole, etc, for
violation of election laws shall be granted by
the President without its favorable
recommendation
4) COMELEC cannot exercise power of
apportionment
5) Power to declare failure of election
The election in any polling place has not
been held on the date fixed on account of
force majeure, violence, terrorism, fraud or
other analogous case
The election in any polling place has
been suspended before the hour fixed by law
for the closing of the voting on account of
force majeure, violence, terrorism, fraud or
other analogous case
After the voting and during the
preparation and transmission of the election
returns or in custody or canvas, such
election results in a failure to elect on
account of force majeure, violence,
terrorism, fraud or other analogous case.
Petition must show, on its face
1) No voting has taken place in the precint
on the sate fixed by law or even if there was
voting, the result nevertheless results in a
failure to elect

Exclusive original jurisdiction


All contests relating to the elections,
returns and qualifications of all elective
regional, provincial and city officials.
Exclusive jurisdiction over pre-proclamation
cases
Possible conflict with HR/S ET
foreclosed by Section 15, RA 7166
prohibits pre-proclamation controversies in
national offices (EXCEPT on question
involving the composition and proceedings
of the Board of Canvassers)
ET over a member only after
proclamation
COMELEC without the power to
partially/totally annul a proclamation or to
suspend the effects of a proclamation
without notice and hearing violation of
due process clause
Power to issue writs of prohibition,
certiorari, etc.
In the exercise of its exclusive appellate
jurisdiction
Exclusive appellate jurisdiction
All
contests
involving
elective
municipal officials decide by RTC
Elective barangay officials decided by
MTC
Decisions shall be final, executory and
unappealable
Appeal to the COMELEC from RTC
must be filed within 5 days from receipt of a
copy of the decision.
MR of RTC decision is a prohibited
pleading and does not interrupt running of
period for appeal.

75

Nachura Notes Constitutional Law

disobedience, violation or disregard of its


orders.

Mere filing of notice of appeal is not


sufficient, must be accompanied by payment
of correct amount of appeal fee.
Permissive COMELEC may give due
course, and the subsequent payment cures
the procedural defect.

Accredit Citizens Arm and Register


political parties, coalitions or organizations
Authority to promulgate the necessary
rules to enforce and administer all election
laws includes the determination of
appropriate periods for the accomplishment
of pre-election acts, e.g. filing petitions for
registration under the party-list system.

Execution Pending Appeal


COMELEC cannot deprive RTC of its
competence to order the execution of
judgment pending appeal, because the mere
filing of an appeal does not divest the TC of
its jurisdiction over a case.
Factors:
1) Public interest involved or will of the
electorate
2) Shortness of the remaining portion of the
term
3) Length of time that the election contest
has been pending
Strictly construed against the movant
being an exception to the general rule.
Filed before expiration of the period for
appeal.
Judgments which may be executed
pending appeal need not only be those
rendered by the TC, but by the COMELEC
as well.

File
petition
in
court
for
the
inclusion/exclusion of voters, upon verified
complaint or in its own initiative; investigate
and/or prosecute cases for violations of
election laws
Finding of probable cause in the
prosecution of election offenses rests in the
COMELECs sound discretion
Includes the authority to decide whether
or not to appeal the dismissal of a case by
the TC.
Recommend to Congress effective measures
to minimize election spending, limitation of
places where propaganda materials shall be
posted and to prevent and penalize all forms
of election frauds, offenses, malpractice and
nuisance candidates

Decide all questions relating to elections


As an incident to its duties concerning
registration of voters, it may decide a
question involving the right to vote, but
decision shall be subject to judicial review.
Exercising purely administrative power
may not punish for contempt

Submit to the President and Congress a


comprehensive report on the conduct of each
election, plebiscite initiative, referendum or
recall
Statutory Powers of the COMELEC
1) Exercise supervision and control over
official required to perform duties relative to
the conduct of elections
2) Promulgate rules and regulations
3) Punish contempt
4) Inquire into financial records of
candidates, groups, etc.
5) Prescribe forms to be used in elections

Deputize law enforcement agencies and


instrumentalities for the exclusive purpose
of ensuring free, orderly, honest and
peaceful and credible elections, with
concurrence of President
May recommend to the President the
removal of any officer it has deputized, or
the imposition of any other sanction for
76

Nachura Notes Constitutional Law

6) Procure supplies and materials needed


for elections
7) Enlist non-partisan groups to assist it
8) Fix periods for pre-election requirements
9) Power to declare failure of election; call
for special election
10) Exclusive original jurisdiction over all
pre-proclamation cases

and qualified (LGC limits term of barangay


officials to 3 years)
Exclusive original jurisdiction over all preproclamation cases
GR: COMELEC restricted, in oreproclamation cases, to an examination of the
election returns on their face and is without
jurisdiction to go beyond them and
investigate election irregularities.
Exception: duty-bound to investigate
allegations of fraud, terrorism, violence and
other analogous cases in an action for
annulment of election results or for a
declaration of failure of elections. (may
conduct technical examination of election
documents and analyze signatures and
fingerprints in order to determine whether
the election has been free, honest and clean)

Power to declare failure of election; call for


special election
Sitting en banc and by a majority vote of
its members
Motu proprio or upon a verified petition
Hearing of the case shall be summary in
nature
Petition to declare a failure of election is
neither an election protest nor a preproclamation controversy
Validity of an election, it is essential that
the voters have notice in some form, either
actual or constructive, of the time, place and
purpose.
Time must be authoritatively designated
in advance
Stricter in cases of special election, at
least there must be substantial compliance
In fixing date of special election:
1) Should not be later than 30 days after the
cessation of the cause of the postponement
or suspension of the election or failure to
elect
Not absolute; directory
Residual powers to conduct special
elections even beyond the deadline
prescribed
2) Reasonably close to the date of the
election not held, suspended, or which
resulted in failure
No law which provides for a
reglementary period within which to file a
petition for the annulment of an election if
there has been no proclamation yet
Legally remain in office in hold-over
capacity until successors have been elected

Party-System - a free and open party-system


shall be allowed to evolve according to the
free choice of the people
Votes cast in favor of political party,
organization or collation that are
REGISTERED.
Entitled to appoint poll watchers in
accordance with law.
Election Period
Commence 90 days before the day of the
election and shall end 30 days thereafter
Exception: period fixed by COMELEC
in special cases
Judicial Review of COMELEC Decisions
Petition for certiorari (R65)
Filed with SC
w/in 30 days from receipt of decision of
COMELEC en banc
COMMISSION ON AUDIT
Composition
- Chairman
- 2 Commissioners
77

Nachura Notes Constitutional Law

1. Constitutional
Commissions
and
bodies/offices granted fiscal autonomy
2. autonomous
state
colleges
and
universities
3. GOCCs and subsidiaries with or
without original charter
4. Non-governmental entities receiving
subsidy or equity
Temporary or special pre-audit
Duty to pass in audit a salary voucher is
discretionary
Exception: authority of Auditor General
is limited to auditing (whether 1) there is a
law appropriating funds for a given purpose,
2) goods or services have been delivered, 3)
payment has been authorized) presence
of all, duty to pass a voucher in audit
becomes MINISTERIAL.
COA may validly veto appropriations
which violated rules on unnecessary,
irregular or unconscionable expenses, under
1987 Constitution.

Qualifications
1. Natural-born
2. at least 35 years old
3. CPAs with not less than 10 years of
auditing experience OR members of the
Philippine Bar with at least 10 years practice
of law
4. not have been candidates in the election
immediately preceding the appointment
5. no time shall ALL members belong to
the same profession
Term
- Appointed by the President with the
consent
of
the
Commission
on
Appointments
- Term of 7 years, without reappointment
Powers and Duties
1. Examine, audit and settle all accounts
pertaining to the revenue and receipts of,
and expenditures or uses of funds and
property owned or held in trust or pertaining
to the Government
2. Keep the general accounts of
Government and preserve vouchers and
supporting papers for such period as
provided by law
3. authority to define the scope of its audit
and examination, establish techniques and
methods required therefore
4. Promulgate accounting and auditing
rules and regulations, including those for the
prevention and disallowance of irregular,
unnecessary, expensive, extravagant or
unconscionable expenditures or uses of
government funds or property

Keep the general accounts of Government


and preserve vouchers and supporting
papers for such period as provided by law
Authority to define the scope of its audit and
examination, establish techniques and
methods required therefore
EXCLUSIVE
1. Power to define the scope of its audit
2. Promulgate
auditing
rules
and
regulations
3. Power
to
disallow
unnecessary
expenditures
NOT Exclusive power to examine
and audit
Promulgate accounting and auditing rules
and regulations, including those for the
prevention and disallowance of irregular,
unnecessary, expensive, extravagant or
unconscionable expenditures or uses of
government funds or property
COA may stop the payment of the price
stipulated in the government contracts when

Examine, audit and settle all accounts


pertaining to the revenue and receipts of,
and expenditures or uses of funds and
property owned or held in trust or pertaining
to the Government
Post-audit basis

78

Nachura Notes Constitutional Law

found to be irregular, extravagant or


unconscionable.
May prohibit the use of government
vehicle by officials who are provided with
transportation allowance.

5. Chairmen and Members of ConCom


6. Ombudsman
* enumeration is exclusive
Impeachable officer who is a member of
the Philippine Bar cannot be disbarred
without first being impeached.
Grounds:
1. Culpable violation of the constitution
2. treason
3. bribery
4. graft and corruption
5. other high crimes
6. betrayal of public trust
* enumeration is exclusive
Procedure for Impeachment Congress
shall promulgate its rules
1. Initiating Impeachment Case
House of Representative shall have the
exclusive power to initiate all cases of
impeachment.
Deemed initiated when the complaint
(with
accompanying
resolution
of
indorsement) has been filed with the House
of Representatives and referred to the
appropriate Committee.
Initiated by
1. any Member of the House of
Representatives OR
2. by any citizen upon a resolution of
endorsement by any Member
Included in the order of business w/in 10
session days and referred to the proper
Committee w/in 3 session days.
If the verified complaint is filed by at
least 1/3 of all the members of the House,
the same shall constitute the Articles of
Impeachment and the trial by Senate shall
forthwith proceed (no need to refer the same
to the proper Committee)
The Committee, after hearing, and by a
majority vote of all its members, shall
submit its report to the House w/in 60
session days
A vote of at least 1/3 of all the members
of the House shall be necessary to affirm a
favorable resolution with the Articles of

Jurisdiction of the Commission


No law shall be passed exempting any
entity of Government or any investment of
public funds from the jurisdiction of the
Commission on Audit
Water districts are subject to jurisdiction
of COA
Authority to investigate whether
directors/officials/employees of GOCCs,
receiving additional allowances and bonuses
are entitled to such.
Failure of bidding:
1. only one offeror
2. all the offers are non-complying or
unacceptable does not speak of accepted
bids but of offerors, without disctinction as
to whether they are qualified or not.
XII. LOCAL GOVERNMENT
XIII. ACCOUNTABILITY OF PUBLIC
OFFICERS
Statement of Policy
Public office is a public trust.
Public officers and employees must at all
times be accountable to the people,
Serve them with utmost responsibility,
integrity, loyalty and efficiency,
Act with patriotism and justice
And lead modest lives.
Impeachment
National inquest into the conduct of
public men
Impeachable Officers
1. President
2. Vice President
3. Chief Justice
4. Associate Justices of SC
79

Nachura Notes Constitutional Law

Impeachment of the Committee, or override


its contrary resolution.
The vote of each member shall be
recorded.
2. Limitations on initiating Impeachment
Case
Not more than once within a period of 1
year against the same official.
3. Trial and Decision
The Senate shall have the sole power to
try and decide all cases of impeachment.
The Senators shall be on oath or
affirmation.
President is on trial, the Chief Justice of
the SC shall preside, but shall not vote.
A decision of conviction must be
concurred in by at least 2/3 of all members
of the Senate.
4. Effect of Conviction
Removal
from
office
and
disqualification to hold office.
Party convicted shall be liable and
subject to prosecution, trial and punishment
according to law.

Only instance when Sandiganbayan may


exercise jurisdiction over a private
individual is when the complaint charges
him either as a co-principal, accomplice or
accessory of a public officer who has been
charged with a crime within the jurisdiction
of the Sandiganbayan.
Whether or not the Sandiganbayan or the
RTC has jurisdiction shall be determined by
the allegations in the information
specifically on whether or not the acts
complained of were committed in relation to
the official functions of the accused.
Required that the charge be set forth
with particularity as will reasonable indicate
that the exact offense which the accused is
alleged to have committed is one in relation
to his office.
Ramification of Section 7, RA 8249
1. if the trial of the cases pending before
whatever court has already begun as of the
approval of RA 8249, the law does not
apply;
2. if trial of cases pending before whatever
court has not begun as of the approval of RA
8249, then the law applies and the rules are:
a. if SB has jurisdiction over a case
pending before it, then it retains jurisdiction
b. if SB has no jurisdiction over a case
pending before it, case shall be referred to
the regular courts
c. if SB has jurisdiction over a case
pending before a regular court, the latter
loses jurisdiction and the same shall be
referred to the Sandiganbayan
d. if a regular court has jurisdiction over a
case pending before it, then said court
retains jurisdiction

THE SANDIGANBAYAN
Anti-graft court
Composition
1 Presiding Justice
8 Associate Justices
With the rank of the Justice of the CA
Sits in 3 divisions of 3 members each
Jurisdiction
Following must concur:
1. violation of RA 3019, RA 1379, Chapter
2 Section 2 Title 7 Book II of RPC, Eos 1, 2,
14 and 14-A or other offenses of felonies
whether simple or complexed with other
crimes;
2. offender is public official or employees
holding any of the positions enumerated in
par a Sec 4 RA 8249; and
3. offenses committed in relation to the
office

Decision/Review
Unanimous vote of all 3 members
required for the pronouncement of judgment
by a division.
Decisions of the Sandiganbayan shall be
reviewable by the SC on petition for
certiorari

80

Nachura Notes Constitutional Law

Mandatory for the Sandiganbayan to


suspend any public officer against whom a
valid information charging violation of that
law, or any offense involving fraud upon the
government or public funds or property is
filed. (RA 3019)
The appellate jurisdiction of the SC over
decisions and final orders of the
Sandiganbayan is limited to questions of
law.

Rank of Chairman and Members of the


ConCom
Receive the same salary which shall not
be decreased during their term of office

Fiscal Autonomy
Disqualifications/Inhibitions During their
tenure shall:
1) Not hold any other office or employment
2) Not engage in the practice of any
profession or in the active management or
control of any business which may in any
way be affected by the functions of his
office
3) Not be financially interested, directly or
indirectly, in any contract with, or in any
franchise or privilege granted by the
Government
4) Not be qualified to run for any office in
the election immediately succeeding their
cessation from office

THE OMBUDSMAN
Tanodbayan
Composition
One overall Deputy
At least one deputy for Luzon, Visayas
and Mindanao
Separate deputy for the military
establishment may likewise be appointed
Qualifications
1) Natural-born
2) At least 40 years of age
3) Recognized probity and independence
4) Members of the Philippines Bar
5) Must not have been candidates for any
elective office in the immediately preceding
election
6) Ombudsman must have been a judge or
engaged in the practice of law for 10 years
or more

Powers and Duties


jurisdiction of the Ombudsman over
government-owned
or
controlled
corporations, 3 Requisites:
1) agency organized as a stock or non-stock
corporation
2) vested with functions relating to public
needs, whether government or proprietary
3) owned by the Government directly or
through its instrumentalities, either wholly
or, where applicable as in the case of stock
corporations, to the extent of at least 51% of
capital stock
Special Prosecutor may prosecute before
the Sandiganbayan judges accused of graft
and corruption, even if they come under the
administrative supervision of the SC.
Tanodbayan could review and reverse
the findings of the City Fiscal and order him
to withdraw certain charges, inasmuch as the
Presidents power of control is exercised not
by the Secretary of Justice but by the
Tanodbayan because the offense/s charged

Appointment of the Ombudsman and his


Deputies
By President
From a list of 6 nominees prepared by
the Judicial and Bar Council
From a list of 3 nominees for every
vacancy; all vacancies must be filled in 3
months.
Term of Office
7 years without reappointment
Rank and Salary

81

Nachura Notes Constitutional Law

were allegedly committed by a public


functionary in connection with his office.
For purposes of initiating a preliminary
investigation before the Office of the
Ombudsman, a complaint in any form or
manner is sufficient.
Ombudsman or his deputy is authorized
to preventively suspend any officer or
employee under his authority pending an
investigation irrespective of whether such
officer or employee is employed in the
Office of the Ombudsman or in any other
government agency.
Whether evidence of guilt is strong to
warrant preventive suspension is left to the
determination of the Ombudsman. There is
no need for preliminary hearing.
Congress can, by statute, prescribe other
powers, functions and duties to the
Ombudsman.
He may utilize the personnel of his
office to assist in the investigation of the
cases, the Ombudsman may refer cases
involving non-military personnel for
investigation by the Deputy Ombudsman for
Military Affairs.
Power to cite for contempt; exercised by
the
Ombudsman
while
conducting
preliminary
investigation
because
preliminary investigation is an exercise of
quasi-judicial functions.
Appeals shall be made to the CA in
accordance with R43.
any illegal act or omission of any
public official is broad enough to embrace
any crime committed by a public official or
employee.
Power of the Ombudsman to investigate
and to prosecute, as granted by law, is
plenary and unqualified.
The authority of the Ombudsman to
investigate is not an exclusive authority, but
rather a shared or concurrent authority with
the Department of Justice Panel of
Investigators, in respect of the offense
charged

It is not for the court to review the


Ombudsmans paramount decision in
prosecuting or dismissing a complaint filed
before his office.
Exception: grave abuse of discretion on
the part of the Ombudsman in either
prosecuting or dismissing a case before it is
evident.
Case law holds that the Court is loathe to
interfere with the exercise by the
Ombudsman of its powers.
While the Office of the Ombudsman has
the discretion to determine whether an
information should be withdrawn and a
criminal case should be dismissed, and to
move for the withdrawal of such information
or dismissal of a criminal case, the final
disposition of the said motion and of the
case is addressed to the sound discretion of
the Sandiganbayan, subject only to the
caveat that the action of the Sandiganbayan
must not impair the substantial rights of the
accused and the right of the people t due
process of law.
RA 1405 (Law on Secrecy of Bank
Deposit) before an in camera inspection of
bank accounts may be allowed:
1) there must be a pending case before a
court of competent jurisdiction
2) account must be clearly identified
3) inspection limited to the subject matter
of the pending case before the court
4) bank personnel and account holder must
be notified to be present during the
inspection
5) inspection may cover only the account
identified in the pending case
investigation being done by the
Ombudsman is NOT one before a court of
competent jurisdiction
Ombudsman has no authority to directly
dismiss a public officer from government
service
Can only recommend to the officer
concerned the removal of a public officer or
employee found to be administratively liable

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Nachura Notes Constitutional Law

HOWEVER the refusal, without just


cause, of any officer to comply with such an
order of the Ombudsman to penalize an
erring officer or employee is a ground for
disciplinary action.
Special Prosecutor
Existing Tanodbayan (at the time of the
adoption of the 1987 Constitution) shall be
known as the Special Prosecutor.
It shall continue to function and exercise
its powers as now or hereafter provided by
law, except those conferred to the Office of
the Ombudsman.

required by law, submit a declaration under


oath of his assets, liabilities and net worth.
Declaration shall be disclosed to the
public in the manner provided by law in case
of:
1) President
2) VP
3) Members of the Cabinet
4) Congress
5) SC
6) ConCom
7) Other constitutional offices
8) Officers of the armed forces of general
or flag rank

Ill-gotten Wealth
Right of the State to recover properties
unlawfully acquired by public officials or
employees, from them or from their
nominees or transferees, shall not be barred
by prescription, laches or estoppel.
Applies only to civil actions for recovery
of ill-gotten wealth and not to criminal
cases.

Allegiance to the State and to the


Constitution
Any public officer or employee who
seeks to change his citizenship or acquire
the status of an immigrant of another
country during his tenure shall be dealt with
by law.
XIV. NATIONAL
PATRIMONY

Restriction on Loans
No loan, guaranty or other form of
financial accommodation for any business
purpose may be granted directly or
indirectly by any government owned or
controlled bank or financial institution to
(during their tenure):
1) President
2) VP
3) Members of the Cabinet
4) Congress
5) SC
6) ConCom
7) Ombudsman
8) Any firm or entity in which they have
controlling interest

ECONOMY

AND

Goals
1. equitable distribution of opportunities,
income and wealth
2. sustained increase in amount of goods
and services, produced by the nation for the
benefit of the people
3. expanding productions as the key to
raising the quality of life
For attainment of these goals, the State shall:
Promote industrialization and full
employment based on sound agricultural
development and agrarian reform, through
industries that make full and efficient use of
human and natural resources and which are
competitive in both domestic and foreign
markets.
State shall protect Filipino enterprises
from unfair competition and trade practices.

Statement of Assets, Liabilities and Net


Worth
A public officer or employee shall, upon
assumption of office and as often as may be

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Nachura Notes Constitutional Law

Natural Resources
All lands of public domain, waters,
mineral, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna
and other natural resources are owned by the
State.
With the exception of agricultural lands,
all other natural resources shall not be
alienated.
Regalian Doctrine: all agricultural,
timber and mineral lands are subject to the
dominion of the State.
Before any land may be classified from
the forest group and converted into alienable
or disposable land from agricultural or other
purposes, there must be positive act from the
Government.
Absence of proof that property is
privately owned, the presumption is that it
belongs to the State.
Any possession, no matter how lengthy,
cannot ripen into ownership. And all lands
not otherwise appearing to be clearly within
private ownership are presumed to belong to
the State.
Tasks of administering and disposing
lands of public domain belongs to the
Director of Lands and ultimately the
Secretary of DENR.
The classification of public lands is an
exclusive prerogative of the Executive
Department through the Office of the
President. In the absence of classification,
the land remains unclassified public land
until released and rendered open for
disposition.
Forest land is not capable of private
appropriation and occupation in the absence
of a positive act of the Government
declassifying it into alienable and
disposable.

Dominium: lands held by the State in its


proprietary character. It may provide for the
exploitation and use of lands and other
natural
resources,
including
their
disposition, except as limited by the
Constitution.
Citizenship Requirements
1. Co-production,
joint
venture
or
production
sharing
agreements
for
exploration, development and utilization of
natural resources
Filipino citizens
Corporations at least 60% of whose
capital is Filipino-owned
Agreements shall not exceed 25 years,
renewable for another 25
2. Use and enjoyment of the nations
marine wealth
Exclusively to Filipino citizens
Protect the rights of subsistence
fishermen, especially of local communities
to the preferential use of the communal
marine and fishing resources, both inland
and offshore.
Marginal Fisherman individual
engaged in fishing whose margin of return
or reward from his harvest of fish, as
measured by existing price levels, is barely
sufficient to yield a profit or cover the cost
of gathering the fish.
Subsistence Fishermen catch yields
but the irreducible minimum for his
livelihood.
LGC defined marginal farmer or
fisherman - engaged in the subsistence
farming or fishing which shall be limited to
the sale, barter or exchange of agricultural or
marine products.
Preferential right granted to them is not
absolute.
3. Alienable lands of public domain

Imperium: government authority possessed


by the State, embraced in sovereignty and its
capacity to own and acquire property.
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Nachura Notes Constitutional Law

Filipino citizens may acquire not more


than 12 hectares by purchase, homestead or
grant OR lease more than 500 hectares
Private corporation may lease not more
than 1,000 hectares for 25 years, renewable
for another 25 years
4. Certain areas of investment (as Congress
shall provide when national interest so
dictates)
Filipino citizens
Corporations at least 60% of whose
capital is Filipino-owned
Congress
may
prescribe
higher
percentage of Filipino ownership
Filipino First Policy
o positive command which is complete in
itself
o needs no further guidelines or
implementing rules or laws for its operation
o per se enforceable
o Filipinos should be preferred and when
the Constitution declares that a right exists
in certain specified circumstances, an action
may be maintained to enforce this right.
5. Franchise, certificate or authorization for
the operation of a public utility
Citizens of the Philippines
Corporations at least 60% of whose
capital is Filipino-owned
Franchise, certificate or authorization
shall not be exclusive nor for a period for
more than 50 years, and shall be subject to
amendment, alteration or repeal by
Congress. All executive and managing
officers must be Filipino citizens.
No franchisee can demand or acquire
exclusivity in the operation of a public
utility.
Congress does not have the exclusive
power to issue such authorization also
administrative bodies.
Franchise for the operation of public
utility does not require a franchise before
one can own the facilities needed to operate
a utility, so long as it does not operate them
to serve the public.

Public utility: business or service


engaged in regularly supplying the public
with some commodity or service of public
consequence. Implies public use and service.
All broadcasting, whether radio or
television, is licensed by the Government.
They do not own the airwaves and
frequencies and they are merely given he
temporary privilege.
A franchise is a privilege subject to
amendment.
Joint venture falls within the purview of
association; if it wishes to engage in the
business of operating a public utility, must
comply with the 60-40% Filipino-foreign
capitalization requirement.

Classification of Lands of Public Domain


Lands of public domain are classified
into:
1. agricultural
2. forest or timber
3. mineral lands
4. national parks
Agricultural lands may further be
classified by law according to the uses to
which they may be devoted.
Congress shall determine by law the size
of the lands of the public domain which may
be acquired, developed, held or leased and
conditions therefore.
The classification of public lands is a
function of the executive branch of the
Government Director of the Land
Management Bureau.
The decision of the Director, when
approved by the Secretary of the Department
of Environment and Natural Resources as to
questions of fact is conclusive upon the
courts.
Alienable lands of the public domain
shall be limited to agricultural lands.
Forest land cannot be owned by private
persons.
It is not registrable and possession
thereof, no matter how lengthy, cannot

85

Nachura Notes Constitutional Law

convert it into private land, unless the land is


reclassified and considered disposable and
alienable.
Foreshore land is that part of the land
which is between the high and low water,
and left dry by the flux and reflux of the
tides. It is part of the alienable and of the
public domain and may be disposed of only
by leased and not otherwise.
Private corporations or associations may
not hold such alienable lands of the public
domain except by lease.
It would cease to be public land only
upon the issuance of the certificate of title to
any Filipino citizen qualified to acquire the
same.
1973 Constitution cannot impair vested
rights. Where the land was acquired in 1962
when corporations were allowed to acquire
lands not exceeding 1,024 hectares, the same
may be registered in 1982.
The 1987 Constitution prohibits private
corporations from acquiring alienable lands
of the public domain.
Congress shall determine the specific
limit of forest land and national parks,
marking clearly their boundaries on the
ground.
The State shall protect the rights of
indigenous cultural communities to their
ancestral lands to ensure their economic,
social and cultural well being.

applicable, in the disposition or utilization of


other natural resources.
Including lands of the public domain
under lease or concession suitable to
agriculture, subject to prior rights,
homestead rights of small settlers, and the
rights of indigenous communities to their
ancestral lands.
The State may resettle landless farmers
and farm workers in its own agricultural
estates which shall be distributed to them in
the manner provided by law.
Private Lands
- Private lands shall be transferred or
conveyed to individuals, corporations or
associations qualified to acquire or hold
lands of the public domain.
- Exception: in cases of hereditary
succession
- Any sale or transfer in violation of the
prohibition is null and void.
- Being an alien, disqualified from
acquiring and owning real property.
Neither can petitioner recover the money
he had spent for the purchase.
Equity, as a rule, will follow the law,
and will not permit to be done indirectly that
which, because of public policy, cannot be
done directly.
- Action to recover the property sold filed
by the former owner will lie, the pari delicto
ruling having been abandoned.
- The lease for 99 years with a 50-year
option to purchase the property if and when
Wong Heng would be naturalized is a virtual
surrender of all rights incident to ownership
and therefore invalid. (PNB vs. Lui She)
- Land tenure is not indispensable to the
free exercise of religious profession and
worship.
A religious corporation, controlled by
non-Filipinos, cannot acquire and own lands
even for a religious use or purpose.
For a religious corporation sole to
acquire lands, it must appear that at least

The Stewardship Concept


The use of property bears a social
function, and all economic agents shall
contribute to the common good, individuals
and private groups, including corporations,
cooperatives
and
similar
collective
organizations, shall have the right to own,
establish and operate economic enterprises,
subject to the duty of the State to promote
distributive justice and to intervene when the
common good so demands.
The State shall apply the principles of
agrarian reform or stewardship, whenever
86

Nachura Notes Constitutional Law

60% of the faithful or its members are


citizens of the Philippines in order to
comply with the citizenship requirement.
This is so regardless of the citizenship of
the incumbent inasmuch as a corporation
sole is merely an administrator of the
temporalities or properties titled in its name
and for the benefit of its members.
- Land sold to an alien which was later
transferred to a Filipino citizen or where
the alien later becomes a Filipino citizen can
no longer be recovered by the vendor
because ether is no longer any public policy
involved.
- Exceptions to the Rule:
1. Hereditary Succession
Exception: testamentary disposition
2. A natural born citizen of the Philippines
who has lost his Philippine citizenship may
be a transferee of private lands
Filipino citizen may acquire 5,000
square meters of urban land
Filipino citizen may acquire 3,000
hectares of rural land
May be used for residence, business and
for other purposes.

Remedies to Recover Private Land from


Disqualified Alien
1. Escheat Proceedings
2. Action for Reversion under Public Land
Act
The Director of Lands has the authority
and the specific duty to conduct
investigation of alleged fraud in obtaining
free patents and the corresponding titles to
alienable public lands.
And if the facts warrant, to file the
corresponding court action for the reversion
of the land to the State.
Imprescriptible.
State, alone, which may institute
reversion proceedings against public lands
allegedly acquired through fraud and
misrepresentation.
Private parties are without legal standing
at all question the validity of respondents
title.
Property in dispute is still part of the
public domain, only the State can file suit
for reconveyance of such public land.
The State can be in estoppel by the
mistakes or errors of its officials or agents.
o Estoppel against the State is not favored;
it may be invoked only in rare and unusual
circumstances.
o State may not be allowed to deal
dishonorably or capriciously with its
citizens.
o State may be held in estoppel for
irregular acts and mistakes of its officials.
o Republic vs. CA, where the State failed
to correct and recover the alleged increase in
the land area of the titles issued, the
prolonged inaction strongly militates against
its cause, tantamount to laches.
o Laches failure or neglect, for an
unreasonable and unexplained length of
time, to do that which by exercising due
diligence could or should have been done
earlier.

3. Americans hold valid title to private


lands as against private persons
Titles to private lands acquired by such
persons before such date (July 3, 1974) shall
be valid as against private persons only)
Transitory Provision of the 1973
Constitution.
Previous owner may no longer recover
land from an American buyer who
succeeded in obtaining title over the land.
Only the State has the superior right to
the land through the institution of escheat
proceeding (as a consequence of the
violation of the Constitution) or through an
action for reversion (as expressly authorized
under the Public Land Act with respect to
lands which formerly formed part of the
public domain).

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Nachura Notes Constitutional Law

o The negligence or omission to assert a


right within a reasonable time, warranting a
presumption that the party entitled to assert
it either abandoned it or decline to assert it.

companies, consisting in the exclusive right


to carry on a particular business or trade,
manufacture a particular article, or control
the sale of a particular commodity.
- Monopolies are not per se prohibited by
the Constitution but may be permitted to
exist to aid the government in carrying on an
enterprise or to aid in the performance of
various services and functions in the interest
of the public.
- Subjected to a higher level of State
regulation.
- Desirability of competition is the reason
for the prohibition against restraint of trade.
- The reason for the interdiction of unfair
competition and the reason for the
prohibition of unmitigated monopolies.
- A market controlled by one player
(monopoly) or dominated by a handful of
players (oligopoly) is hardly the market
where honest-to-goodness competition will
prevail.
- Constitution enshrined free enterprise as
a policy, it nevertheless reserves to the
Government the power to intervene
whenever necessary for the promotion of the
general welfare.

3. Action for recovery filed by the former


Filipino owner, the pari delicto ruling
having been abandoned, unless the land is
sold to an American citizen prior to July 3,
1974 and the American citizen obtained title
thereto.
Preference for Filipino Labor, etc.
- The State shall promote the preferential
use of Filipino labor, domestic materials and
locally produced goods, and adopt measures
that help make them competitive.
Practice of Profession
- The practice of all profession shall be
limited to Filipino citizens
- Exception: in cases prescribed by law
Cooperatives
- Congress shall create an agency to
promote the viability and growth of
cooperatives as instruments for social justice
and economic development.
- RA 6939: An Act Creating the
Cooperative Development Authority
- CDA is devoid of any quasi-judicial
authority to adjudicate intra-cooperative
disputes and, more particularly, disputes
related to the election of officers and
directors of cooperatives.
- CDA may conduct hearings and
inquiries in the exercise of its administrative
functions.

Central Monetary Authority


- Congress shall establish an independent
central monetary authority, the members of
whose governing board must be:
1. natural-born
2. known probity, integrity and patriotism
3. majority of whom shall come from the
private sector
- The authority shall:
1. provide policy direction in the areas of
money banking and credit
2. have supervision over the operations of
banks
3. exercise such regulatory powers as may
be provided by law over the operations of
finance companies and other institutions
performing similar functions

Monopolies
- Policy: the State shall regulate or
prohibit monopolies when the public interest
so requires. No combinations in restraint of
trade or unfair competition shall be allowed.
- Monopoly a privilege or peculiar
advantage vested in one or more persons or

88

Nachura Notes Constitutional Law

- Until Congress otherwise provides, the


Central Bank shall function as the central
monetary authority.

3. living wage
- They shall also participate in policy and
decision-making processes affecting their
rights and benefits as may be provided by
law.
- The State shall promote the principle of
shared responsibility between the workers
and employers and the preferential use of
voluntary modes in settling disputes,
including conciliation and shall enforce their
mutual compliance to foster industrial peace.
- The State shall regulate the relations
between
workers
and
employers,
recognizing the
1. right of labor to its just share in the fruits
of production and
2. the right of enterprises to reasonable
returns on investments and to expansion and
growth.

XV. SOCIAL JUSTICE AND HUMAN


RIGHTS
Policy Statement
- Congress shall give highest priority to
the enactment of measures that
protect and enhance the right of all the
people to human dignity
reduce social, economic, and political
inequalities
and remove cultural inequities by
equitably diffusing wealth and political
power for the common good.
- To this end, the State shall regulate the
acquisition, ownership, use and disposition
of property and its increment.
- The promotion of social justice shall
include the commitment to create economic
opportunities based on freedom of initiative
and self-reliance.
- Pursuit to social justice cannot justify
breaking the law.
- The States solitude for the destitute and
the have-nots does not mean it should
tolerate usurpation of property, public or
private.

- Employees in the civil service may not


resort to strikes, walkouts and other
temporary work stoppages to pressure the
Government to accede to their demands.
- The ability to strike is not essential to the
right to association and the right to
sovereign to prohibit strikes or work
stoppages was clearly recognized at
common law.
Agrarian and Natural Resources Reform
- Constitutionality of the Comprehensive
Agrarian Reform Law.

Labor
- The State shall afford full protection to
labor, local and overseas, organized and
unorganized, and promote full employment
and equality of employment opportunities
for all.
- It shall guarantee the rights of all
workers to:
1. self-organization
2. collective bargaining and negotiations
3. peaceful concerted activities, including
the right to strike in accordance with law
- They shall be entitled to:
1. security of tenure
2. humane conditions of work

Urban Land and Housing Reform


- The State shall, by law, and for the
common good, undertake, in cooperation
with the private sector, a continuing
program of urban land reform and housing
which will make available at affordable cost
decent housing and basic services to
underprivileged and homeless citizens in
urban centers and resettlement areas.
- It shall promote adequate employment
opportunities.

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Nachura Notes Constitutional Law

- State shall respect the rights of small


property owners.
- Urban or rural poor dwellers shall not be
evicted nor their dwellings demolished,
Except: in accordance with law and
in a just and humane manner.
- No resettlement of urban or rural
dwellers shall be undertaken without
adequate consideration with them and the
communities where they are to be located.

The power to appoint the Chairman and


members of the Commission is vested in the
President, without need of confirmation by
the Commission on Appointments.
CHR does not enjoy fiscal autonomy. It
does not belong to the species of constituent
commissions.
Powers and Functions:
1. jurisdiction or adjudicatory powers and
not meant to be another court or quasijudicial agencies in this country
2. may investigate
receive evidence
make findings of fact as regards claimed
human rights violations involving civil and
political rights
but fact-finding is not adjudication, and
cannot be likened to the judicial function of
a court of justice, or even a quasi-judicial
agency or official
3. cannot issue writs of injunction or a
restraining order against supposed violators
of human rights, not being a court of justice.

- Eviction of squatters and the demolition


of their shanties shall be done in accordance
with law does not mean that the validity and
legality of demolition or eviction hinges on
the existence of resettlement area designated
or earmarked by the Government.
- Judicial notice of the fact that urban
reform has become a paramount task of
Government in view o the acute shortage of
decent housing in urban areas.
- Section 19 of the LGC imposes certain
restriction on the exercise of the power of
eminent domain/
- RA 7279 provides the order in which
lands may be acquired for socialized
housing.
- Urban tenants right of first refusal (preemptive right), can be exercised only where
the disputed land is situated in an area
declared to be an area for priority
development (APD) and an urban land
reform zone (ULRZ).

XVI. EDUCATION, SCIENCE AND


TECHNOLOGY, ARTS CULTURE
AND SPORTS
State Policy
priority to education, science and
technology, arts, culture and sports to
foster patriotism and nationalism
accelerate social progress and
promote total human liberation and
development
protect and promote the right of all
citizens to quality education at all levels and
shall take appropriate steps to make such
education accessible to all.

Human Rights
The Commission on Human Rights
Composition
1. Chairman
2. 4 Members
Qualifications
1. natural-born
2. majority of whom shall be members of
the Bar
Term of office and other disqualification
and disabilities of the members shall be
provided by law.

National Medical Admission Test


(NMAT) ensures quality education for
future doctors and protect public health by
making sure of the competence of future
medical practitioners.

90

Nachura Notes Constitutional Law

- Option expressed in writing by parent or


guardian
- Public elementary and high schools
- Within regular class hours
- Instructors designated or approved by
religious authorities
- Without additional cost to Government

Constitutional right of every citizen to


select a profession or course of study subject
to fair, reasonable and equitable admission
and academic requirements.
It may be regulated pursuant to police
power of the State to safeguard health,
morals, peace, education, order, safety and
general welfare of the people.
Persons who desire to engage in the
learned professions requiring scientific or
technical knowledge may be required to take
an examination as a prerequisite to engaging
in their chosen careers.
Requirement that a school must first
obtain government authorization before
operating is based on the State policy that
educational programs and/or operations shall
be of good quality and shall satisfy
minimum standards.

Educational Institution
- Ownership
Solely by Filipino citizens or
Corporations 60% Filipino-owned
Exception: those established by religious
groups or mission boards, but Congress may
increase
required
Filipino
equity
participation.
- Control and Administration
Vested in Filipino citizen..
- Alien Schools
No educational institution shall be
established exclusively for aliens, and no
group of aliens shall compromise more than
1/3 of the enrolment in any school.
Exception:
schools
for
foreign
diplomatic personnel and their dependents
and for other foreign temporary residents.
- Tax Exemptions
all revenues and assets
all grants, endowments, donations and
contributions
of non-stock, non-profit educational
institution
used directly, actually and exclusively
for educational purposes

Constitutional Mandate for the State to


Establish
adequate
and
relevant
education
Free public elementary and high school
education
Scholarship grants and loan programs
Out-of-school study programs
Adult education
Constitutional Objectives of Education
1. inculcate patriotism and nationalism
2. foster love of humanity
3. respect for human rights
4. appreciation of the role of national
heroes in the historical development of the
country
5. teach the rights and duties of citizenship
6. strengthen ethical and spiritual values
7. develop moral character and personal
discipline
8. encourage critical and creative thinking
9. broaden scientific and technological
knowledge
10. promote vocational efficiency

Highest Budgetary Priority to Education


- merely directory
Academic Freedom
enjoyed in all institutions of higher
learning
colleges, publicly or privately-owned
Two Views:
1. from the standpoint if the educational
institution

Optional Religious Instruction

91

Nachura Notes Constitutional Law

1. academic deficiency and


2. breach of the schools reasonable rules
of conduct
Minimum standards of procedural due
process must be satisfied:
1. student must be informed in writing of
the nature and cause of the accusation
against them
2. right to answer the charges against them,
with the assistance of counsel, if desired
3. informed of the evidence against them
4. right to adduce evidence in their own
behalf
5. evidence must be duly considered by the
investigating
committee
or
official
designated by the school authorities to hear
and decide the case.
It is within the sound discretion of the
university to determine whether a student
may be conferred graduation honors,
considering that the student had incurred a
failing grade in an earlier course she took in
school.
Profession Regulation Commission
cannot interfere with the conduct of review
that review schools and centers believe
would best enable their enrollees to meet the
standards required before becoming fullpledged public accountants.
Prerogative of the school to provide
standards for its teachers and to determine
whether or not these standards have been
met is in accordance with academic freedom
and constitutional autonomy which give
educational institutions the right to choose
who should teach.
Academic freedom was never meant to
be unbridled license; it is a privilege which
assumes the correlative duty to exercise it
responsibly.
Conferment of an honor or distinction
was obtained through fraud, the University
has the right to revoke or withdraw the
honor or distinction conferred. The right
does not terminate upon the graduation of
the student.

determine:
1. who may teach
2. what may be taught
3. how it shall be taught
4. who may be admitted to study
Freedom to determine whom to admit
includes the right to determine whom to
exclude or expel, as well as to impose lesser
sanctions such as suspension.
Right to freely choose their field of
study subject to existing curricula, and to
continue their course therein up to
graduation, such right is subject to
established academic and disciplinary
standards laid down by the academic
institution.
2. from the standpoint of the members of
the academe
freedom of the teacher or research
worker in higher institutions of learning to
investigate and discuss the problems of his
science and to express conclusions, whether
through publication or in the instruction of
students, without interference from political
or ecclesiastical authority, or from the
administrative officials of the institution in
which he is employed, unless the methods
are found to be incompetent or contrary to
professional ethics.
Widest latitude to innovate and
experiment on the method of teaching which
is most fitting to his students, subject only to
the rules and policies of the University.
Limitations
1. dominant police power of the State
2. social interests of the community
Termination of Contract theory in
Alcauz can no longer be used as a valid
ground to deny readmission or re-enrollment
to students who had led or participated in
student mass actions against the school. The
students do not shed their constitutionallyprotected rights of free expression at the
school games.
The only valid grounds to deny
readmission of students are:
92

Nachura Notes Constitutional Law

All members of the armed forces shall


take an oath or affirmation to uphold and
defend the Constitution
Professionalism
and
Adequate
Remuneration shall be a prime concern of
the State.
Insulated from partisan politics.
No member of the military shall engage
directly or indirectly in any partisan political
activity except to vote.
No member of the armed forces in the
active service shall, at any time, be
appointed or designated in any capacity to
any civilian position.
Laws on retirement of military officers
shall not allow extension of their service.
The officers and men of the regular force
of the armed forces shall be recruited
proportionately from all provinces and cities
as far as practicable.

Language
National language Filipino
Purpose
of
communication
and
instruction Filipino, and until otherwise
provided by law, English
Regional languages auxiliary official
languages in the regions and shall serve as
ancillary media of instruction
Spanish and Arabic promoted on
voluntary and optional basis
Constitution shall be promulgated in
Filipino and English and shall be translated
into major regional languages, Arabic and
Spanish.
XVII. THE FAMILY
XVII. GENERAL PROVISIONS
Flag
Red, white and blue
A sun and 3 stars
As consecrated and honored by the
people and recognized by law.

National Police Force


The State shall establish and maintain
one police force, which shall be:
National in scope and
Civilian in character.
To be administered and controlled by a
national police commission.
Authority of local executives over the
police units in their jurisdiction shall be
provided by law.
RA 6975 established the PNP under a
reorganized department, DILG.

Name
Congress may, by law, adopt:
a new name for the country
a national anthem or
a national seal
which shall be truly reflective and
symbolic of the ideals, history, and
traditions of the people.
Law shall take effect only upon its
ratification by the people in a national
referendum.

Mass Media and Advertising Industry


Mass Media
Ownership limited to CITIZENS or
CORPORATIONS WHOLLY-OWNED and
MANAGED by such citizens.
Congress shall regulate or prohibit
monopolies in commercial mass media.
Advertising Industry
Only
FILIPINO
CITIZENS
or
CORPORATIONS or ASSOCIATIONS at
least 70% FILIPINO-OWNED shall be

Armed Forces of the Philippines


Composed of a citizen armed force
Which shall undergo military training
And serve, as may be provided by law.

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Nachura Notes Constitutional Law

allowed to engage in the advertising


industry.
ALL EXECUTIVES and MANAGING
OFFICERS of such entities must be
CITIZENS of the Philippines.
Advertising entities affected shall have 5
years from the ratification of the
Constitution to comply on GRADUATED
and PROPORTIONATE basis with the
minimum Filipino ownership.

by the respective sectors, the seats reserved


for sectoral representative.
- Until otherwise provided by Congress,
the
President
may
constitute
the
Metropolitan Authority to be composed of
the heads of all local government units
compromising the Metropolitan Manila
Authority.
Career Civil Service
- Career civil service employees separated
from the service not for cause but as a result
of the reorganization is entitled to
appropriate separation pay and to retirement
and other benefits according to law in force
at the time of their separation.
In lieu of separation pay, at the option of
the employees, they may be considered for
employment in the government.
Apply to career officers whose
resignation, tendered in line with the
existing policy, had been accepted.

XIX. TRANSITORY PROVISION


Elections
- First elections of members of Congress
2nd Monday of May 1987
- First local elections to be determined
by President
- Synchronization of elections:
Members of Congress and the local
officials first elected shall serve until noon
of June 30, 1992.
6-year term of the incumbent President
and Vice-President elected in February 7,
1986 elections is extended until noon of
June 30, 1992.
Elections for President and VicePresident, Senators, Members of the House
of Representatives and local office must be
synchronized in 1992.

Sequestration
- Authority to issue sequestration or freeze
order relative to the recovery of ill-gotten
wealth shall remain operative for not more
than 18 months after the ratification of this
Constitution. Congress may extend such
period.
- Sequestration or freeze orders shall be
issued upon showing of a prima facie case.
- The corresponding judicial action shall
be filed within 6 months from ratification of
this Constitution, or, if issued after
ratification within 6 months from such issue.
- The order is deemed automatically lifted
if no judicial action or proceeding is
commenced.
- No particular description or specification
of the kind or character of judicial action or
proceeding much less an explicit
requirement for the impleading of the
corporations sequestered or of the ostensible
owners of the property suspected to be illgotten.

Existing Laws and Treaties


- All existing laws, decrees, Eos,
proclamations, letters of instructions, and
other executive issuances not inconsistent
with the Constitution shall remain operative
until amended, repealed or revoked.
- All existing treaties or international
agreements which have not been ratified
shall not be renewed or extended without the
concurrence of at least 2/3 of all the
members of the Senate.
Reserved Executive Powers
- Until a law is passed, the President may
fill by appointment from a list of nominees

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Nachura Notes Constitutional Law

- The only qualifying requirement in the


Constitution is that the action or proceeding
be filed for orders of sequestration, freezing
or provisional take-over.
- The action or proceeding must concern
or involve the matter of sequestration,
freezing or provisional take-over of specific
property and should have, as objective, the
demonstration by competent evidence that
the property is indeed ill-gotten wealth
over which the government has a legitimate
claim for recovery and other relief.
- Mere issuance of the writ of
sequestration, without the corresponding
service, within the 18-month period, does
not comply with the constitutional
requirement.
- Lifting of the sequestration orders does
not ispo facto mean that sequestrated
property are not ill-gotten. The effect of the
lifting will merely be the termination of the
role of government as conservator of the
property.
- Writ of sequestration may be issued only
upon authority of at least 2 PCGG
Commissioners.
- PCGG may not validly delegate its
authority to sequester.
- PCGG cannot perform acts of strict
ownership of sequestrated property. PCGG
being a mere CONSERVATOR.
Exception: case of take-over of a
business belonging to the government or
whose capitalization comes from public
funds but which landed in private hands.
- Sequestration does not automatically
deprive the stockholders of their right to
vote their shares of stock. Until the main
sequestration case is resolved, the right to
vote the sequestered shares of stocks
depends on the 2-tiered tests:
1. whether there is prima facie evidence
showing that the said shares are ill-gotten
and thus belong to the State
2. whether there is an immediate danger of
dissipation thus necessitating their continued

sequestration and voting by PCGG while the


main issue pends with the Sandiganbayan.
Does not apply in cases involving funds
of public character
The Government is granted the authority
to vote said shares:
1. where government shares are taken over
by private persons or entities who/which
registered them in their own names and
2. where the capitalization or shares that
were acquired by public funds somehow
landed on private hands.
- Sandiganbayan can review the validity
of sequestration orders.
- Absence of express prohibition, the rule
on amicable settlement or compromise
agreements in the Civil Code is applicable to
PCGG cases before the Sandiganbayan.
- PCGGs authority to enter into
compromise agreements involving ill-gotten
wealth and to grant immunity in civil and
criminal cases, without need of prior
Congressional approval is sustained.
- Penal violations to fall within the
jurisdiction of the PCGG:
1) it must relate to ill-gotten wealth;
2) of the late President Marcos, his
immediate family, relatives, subordinates,
and close associates;
3) who took advantage of their public
office and/or power, authority, influence,
connections or relationships.
- Those not fulfilling the above elements
are not within the authority of the PCGG but
within the jurisdiction of the Ombudsman
and other duly authorized investigating
agencies.
- The invalid preliminary investigation did
not impair the validity of the criminal
information or otherwise render them
defective; much less did not affect the
jurisdiction of the Court.
The only effect is the imposition on the
latter of the obligation to suspend the
proceedings and to require the holding of
preliminary investigation.

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Nachura Notes Constitutional Law

- A mere allegation in the anti-graft


complaint that the accused is a relative of
then President Marcos will not suffice to
enable the PCGG to take cognizance of the
case. There must, in addition, be a showing
that the accused has unlawfully accumulated
wealth by virtue of such close relation with
the former President.
- Fact of sequestration alone did not
automatically oust the RTC of its
jurisdiction.
- In order that the Sandiganbayans
exclusive jurisdiction may be invoked, the
PCGG must be a party to the suit.
- The Office of the Solicitor General may
validly call the PCGG for assistance and ask
it to respond to a motion for a bill of
particulars, considering that PCGG has the
complete records of the case and, being in
charge of the investigation, is more
knowledgeable and better informed.

Congress retains control over the LGUs


although significantly reduced under the
Constitution. National legislature is still the
principal of LGUs which cannot defy its will
or modify or violate it.
Power to tax of LGUs which cannot be
withdrawn by mere statute.
Any form of autonomy granted to local
governments will necessarily be limited and
confined within the extent allowed by the
central authority.
Exercise of local autonomy remains
subject to:
1. power of control by Congress and
2. general supervision by the President
Scope of Presidents supervisory
powers:
President can only interfere in the affairs
and activities of a local government unit if
he finds that the latter had acted contrary to
law;
Cannot interfere in local affairs as long
as the concerned local government unit acts
within the parameters of the law and the
Constitution;
Otherwise, violates the principle of local
autonomy and the doctrine of separation of
powers.
Liga ng mga Barangay is not subject to
the control by the Chief Executive or his
alter ego.

GENERAL PRINCIPLES
Principles of Local Autonomy
Constitutional Provisions
The State shall ensure the local
autonomy of local governments
The territorial and political subdivisions
shall enjoy local autonomy
The principle of local autonomy under
the 1987 Constitution simply means
DECENTRALIZATION.
It does not make the local government
sovereign within the state or an imperium in
iperio.
Autonomy is either:
1. decentralization of administration
no valid constitutional challenge
delegation of administrative powers to
broaden the base of governmental power.
2. decentralization of power
abdication by the national government of
political power in favor of the local
government

Corporation
Artificial being created by operation of
law, having the right of succession and the
powers, attributes and properties expressly
authorized by law or incident to its
existence.
Classification
1. Public: organized for the government of
a portion of a state.
2. Private: formed for some private
purpose.

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Nachura Notes Constitutional Law

3. Quasi-Public: private corporation that


renders public service or supplies public
wants.

1. Public or Governmental acts as agents


of the State, for the government of the
territory and the inhabitants.
2. Private or Proprietary acts as agents of
the community in the administration of local
affairs. Acts as a separate entity for its own
purposes and not as a subdivision of the
state.

Criterion
to
determine
whether
corporation is public
Relationship of the corporation to the
State; if it is created by the State as its own
agency to help the State in carrying out its
governmental function then it is public.
Otherwise, it is private.

Roles of Municipal Corporations in the


Philippines
The territorial and political subdivisions
of the Philippines are the PROVINCES,
CITIES,
MUNICIPALITIES
and
BARANGAYS.
There
shall
be
AUTONOMOUS REGIONS in MUSLIM
MINDANAO and the CORDILLERAS.

Classes of public corporations


1. Quasi-corporation created by the state
for a limited purpose.
2. Municipal Corporation body politic
and
corporate
constituted
by
the
incorporation of the inhabitants for the
purpose of local government.

Provinces
Cluster
of
municipalities
or
municipalities and component cities.
Dynamic mechanism for developmental
processes and effective governance of LGUs
within its territorial jurisdiction.
City
More
urbanized
and
developed
barangays
General purpose government for the
coordination and delivery of basic, regular
and direct services.
Effective governance of the inhabitants
within its jurisdiction.
Muncipality
Group of barangays
General purpose government for the
coordination and delivery of basic, regular
and direct services.
Effective governance of the inhabitant
within its jurisdiction.
Barangay
Basic political unit
Primary planning and implementing unit
of government policies, plans, programs,
projects and activities in the community.
Forum where collective views of the
people may be expressed.

Municipal Corporation
Elements:
1. Legal creation or incorporation
Law creating or authorizing the creation
or incorporation of a municipal corporation.
2. Corporate name
Sanggunian Panlalawigan may change
the name of component cities or
municipalities:
1. consultation with Philippine Historical
Institute
2. effective upon ratification in a plebiscite
3. Inhabitants
People residing in the territory.
4. Territory
Land mass where the inhabitants reside
Together with external and internal
waters and the airspace above.
Dual Nature and Functions
Exercise powers as a political
subdivision of the National Government and
As a corporate entity representing the
inhabitants of the territory.

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Nachura Notes Constitutional Law

Where disputes may be amicably settled.


Autonomous Regions in Muslim
Mindanao and the Cordilleras
Datu Firdausi Abbas vs. COMELEC: act
establishing the Autonomous Regional
Government of Muslim Mindanao was held
valid.
Cordillera
Broad
Colaition
vs.
Commission on Audit: exercise of
legislative powers, creating the Cordillera
Administrative Region was held valid. It
prepared the groundwork for autonomy and
the adoption of the organic law.
Ordillo vs. COMELEC: sole province of
Ifugao which, in the plebiscite, alone voted
in favor RA 6766, cannot validly constitute
the Autonomous Region of the Cordilleras.
Special
Metropolitan
Political
Subdivision
Congress may by law create special
metropolitan political subdivisions subject to
a plebiscite.
The component cities and municipalities
shall retain their basic autonomy
Entitled to their own local executives
and legislative assemblies
Jurisdiction of the metropolitan authority
shall be limited to basic services requiring
coordination.

No province, city, municipality or


barangay may be created, divided, merged,
abolished or its boundary substantially
altered, EXCEPT
1. in accordance with criteria established in
the LGC
2. subject to approval by a majority of the
votes cast in a plebiscite in the political units
directly affected
Plebiscite Requirement: conducted by
the COMELEC within 120 days from the
date of effectivity of the law or ordinance
effecting such action, unless said law or
ordinance fixes another date.
Plebiscite for creating a new province
should include the participation of the
residents of the mother province in order to
conform to the constitutional requirement.
Where the law authorizing the holding of
a plebiscite is unconstitutional, the Court
cannot authorize the holding of a new one.
The fact that the plebiscite which the
petition sought to stop had already been held
and officials of the new province appointed
does not make the petition moot and
academic, as the petition raises an issue of
constitutional dimensions.
Section 7, RA 7160 verifiable
indicators of viability and projected capacity
to provide services:
1. Income
Sufficient, based on acceptable standards
To provide for all essential government
facilities and services and special functions
Commensurate with the size of its
population
Average annual income for the last 2
consecutive years based on 1991 constant
prices:

Creation and Dissolution of Municipal


Corporations
Authority to Create
LGU may be created, divided, merged,
abolished or its boundaries substantially
altered either by:
1. law enacted by Congress provinces,
city, municipality or any other political
subdivision
2. ordinance passed by Sangguniang
Panlalawigan or Sangguniang Panlungsod
barangay

1. Municipality: 2,500,000
2. City 100,000,000
3. Highly Urbanized City: 50,000,000
4. Province: 20,000,000
Internal Revenue Allotment should be
included in the computation of the average

Requisites/Limitation on Creation or
Conversion

98

Nachura Notes Constitutional Law

annual income of the municipality. (for


purposes of determining whether the
municipality may be validly converted into a
city)
For
conversion
to
cities,
the
municipalitys income should not include
the IRA.
2. Population
Total number of inhabitants within the
territorial jurisdiction of the LGU
concerned.
Required minimum population:
1. Barangay: 2,000 inhabitants; except in
Metro Manila and other metropolitan
political subdivisions or in highly urbanized
cities where the requirement is 5,000
inhabitants
2. Municipality: 25,000
3. City: 150,000
4. Highly Urbanized City: 200,000
5. Province: 250,000
3. Land Area
Contiguous, unless it comprises 2 or
more islands or is separated by a LGU
independent of the others
Properly identified by metes and bounds
with technical descriptions
Sufficient to provide for such basic
services and facilities to meet the
requirements of its populace.
Area Requirements:
1. Municipality: 50 sq. kms.
2. City: 100 sq. kms.
3. Province: 2,000 sq. kms.
Compliance
with
the
foregoing
indicators shall be attested to by the
Department of Finance, the National
Statistics Office and the Lands Management
Bureau of the Department of Environment
and Natural Resources.
Requirement that the territory of the
newly-created local government units be
identified by metes and bounds is intended
to provide the means by which the area of
the local government unit may be reasonably
ascertained.

Territorial jurisdiction of the newly


created city may be reasonably ascertained
by referring to common boundaries with
neighboring municipalities then the
legislative intent has been sufficiently
served.
Other constitutional limitations: Bill of
Rights
Beginning of Corporate Existence
ELECTION and QUALIFICATION of
its Chief Executive and a majority of the
members of its sangguinan.
UNLESS some other time is fixed
therefore by the law or ordinance creating it.
Division and Merger, Abolition of LGUs
Division and Merger
comply
with same requirements,
provided that such division shall not reduce
the income, population or land area of the
local government unit/s concerned to less
than the minimum requirements prescribed
provided, further, that the income
classification of the original local
government unit/s shall not fall below its
current income classification prior to the
division.
Abolition
LGU may be abolished when its income,
population or land area has been irreversibly
reduced to less than the minimum standards.
Law or ordinance abolishing a LGU
shall specify the province, city, municipality
or barangay with which the local
government unit sought to be abolished will
be incorporated or merged.
De Facto Municipal Corporation
Requisites:
1. Valid law authorizing incorporation
2. Attempt in good faith to organize under
it
3. Colorable compliance with the law
4. Assumption of corporate powers

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Nachura Notes Constitutional Law

case of doubt, any question shall be resolved


in favor of devolution of power.
2. Any tax ordinance or revenue measure
shall be construed strictly against the LGU
enacting it and liberally in favor if the
taxpayer.
3. Any tax exemption, incentive or relief
granted by any LGU shall be construed
strictly against the person claiming it.
4. The general welfare provision shall be
liberally interpreted to give more powers to
LGUs
in
accelerating
economic
development and upgrading the quality of
life for the people in the community.
5. Rights and obligations existing on the
date of effectivity of this Code and arising
out of contracts or any other source of
prestation involving a LGU shall be
governed by the original terms and
conditions of said contracts or the law force
at the time of such rights were vested.
6. In the resolution of controversies arising
under this Code where no legal provision of
jurisprudence applies, resort may be had to
the customs and traditions in the place
where the controversies take place.

Not de facto municipal corporations,


because there was no law authorizing
incorporation.

Attack Against Invalidity of Incorporation


No collateral attack
Inquiry into the legal existence of a
municipal corporation is reserved to the state
in a proceeding for quo warranto or other
direct proceeding.
Rule is applicable only when the
municipal corporation is at least a de facto
municipal corporation
The Local Government Code
Effectivity: January 1, 1992; after its
complete publication in at least 1 newspaper
of general circulation.
Scope of Application: all provinces,
cities, municipalities, barangays and other
political subdivisions as may be created by
law and to officials, offices or agencies of
the National Government.
Declaration of Policy
1. Territorial and political subdivision of
the State shall enjoy genuine and meaningful
local autonomy to enable them to attain their
fullest
development
as
self-reliant
communities and make them more effective
partners in the attainment of national goals.
2. Ensure accountability of LGUs through
the institution of effective mechanisms of
recall, initiative and reference.
3. Require all national agencies and offices
to conduct periodic consultations with
appropriate LGUs, non-governmental and
peoples organizations and other concerned
sectors of the community before any project
or program is implemented in their
respective jurisdiction.

II.
GENERAL
POWERS
AND
ATTRIBUTES
OF
LOCAL
GOVERNMENT UNITS
Powers in General
Sources
1. Philippine Constitution
2. Statutes
3. Charter
4. Doctrine of the right of self-government
Classification
1. express, implied, inherent
2. public, governmental,
proprietary
3. intramural, extramural
4. mandatory,
directory,
discretionary

Rules of Interpretation
1. Any provision on a power of a LGU
shall be liberally interpreted in its favor; in

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private

or

ministerial,

Nachura Notes Constitutional Law

2. Equal protection clause


3. Due process clause (means employes
are reasonably necessary and not unduly
oppressive for the accomplishment of the
purpose)
4. not be contrary to the Constitution and
the laws.
Prohibited activities cannot be legalized
in the guise of regulation.
Activities allowed by law cannot be
prohibited, only regulated.
LGU may close a bank for failure to
secure the appropriate mayors permit and
business licenses.
LGU may not regulate the subscriber
rate by CATV operators within its territorial
jurisdiction jurisdiction of NTC; This does
not mean that LGU cannot prescribe
regulations over CATV operators.
Ordinance prohibiting the operation of
casino is invalid for being contrary to the
Charter of PAGCOR (PD1869)
Mayor authorized to issue permits and
licenses for the holding of activities for any
charitable or welfare purposes.
LLDA which has exclusive jurisdiction
to issue permits for the enjoyment of fishery
privileges in Laguna de Bay
Ordinance is not unconstitutional merely
because it incidentally benefits a limited
number of persons the support for the poor
has long been an accepted exercise of the
police power in the promotion of the
common good.
Municipality cannot grant exclusive
fishing privileges without prior public
bidding and for a period of more than 5
years violates Fisheries Law.
Permits to operate cockpits mayor
Ordinance prohibiting operation of
night-clubs is invalid prohibitory and not
mere regulatory

Execution of powers
1. statute prescribes the manner of exercise
the procedure must be followed
2. statute is silent LGUs have discretion
to select reasonable means and methods of
exercise
Governmental Powers
1. General Welfare
2. Basic Services and Facilities
3. Power to Generate and Apply Resources
4. Eminent Domain
5. Reclassification of Lands
6. Closure and Opening of Roads
7. Local Legislative Power
8. Authority over Police Units
General Welfare
Exercise powers expressly granted,
necessarily implied, and powers necessary,
appropriate or incidental for its efficient and
effective governance and those which are
essential to the promotion of the general
welfare
w/ respective territorial jurisdiction,
1. preservation and enrichment of culture
2. promote health and safety
3. enhance the right of the people to a
balanced ecology
4. encourage and support the development
of appropriate and self-reliant scientific and
technological capabilities
5. improve public morals
6. enhance economic prosperity and social
justice
7. promote full employment among its
residents
8. maintain peace and order
9. preserve the comfort and convenience of
their inhabitants
general welfare clause statutory grant
of police power to LGUs
Limitations
1. exercisable only within territorial limits
EXCEPT for protection of water supply

Basic Services and Facilities


- Endeavor to be self-reliant

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Nachura Notes Constitutional Law

- Continue exercising the powers and


discharge the duties and functions currently
vested upon them
- Discharge
the
functions
and
responsibilities of national agencies and
others devolved upon them
- Exercise such other powers and
discharge such other functions as are
necessary, appropriate or incidental to
efficient and effective provision of the basic
services and facilities.
- PUBLIC
WORKS
and
INFRASTRUCTURE PROJECTS and other
FACILITIES,
PROGRAMS
and
SERVICES
FUNDED
BY
THE
NATIONAL GOVERNMENT are NOT
covered under Section 17 EXCEPT where
the LGU is duly designated as the
implementing agency for such projects,
facilities, programs and services.
- Devolution: act by which the national
government confers power and authority
upon various LGUs to perform specific
function and responsibilities,
Includes the transfer of assets,
equipments, records and personnel of
national agencies and offices to LGUs
Regional offices of national agencies
shall be phased out within 1 years from
approval of Code.
Career regional director which cannot be
absorbed by the LGU shall be retained by
the national government w/o diminution.

released to them without need of any further


action
To have an equitable share in the
proceeds from the utilization and
development of the national wealth and
resources with their respective territorial
jurisdictions
Develop, lease, encumber, alienate or
otherwise dispose of real or personal
property held by them in their proprietary
capacity and to apply their resources and
assets for productive, developmental or
proprietary powers and functions and
thereby ensure their development into selfreliant communities and active participants
in the attainment of national goals.
LGUs have no power to tax
instrumentalities
of
the
National
Government, e.g. PAGCOR
Fundamental Principles governing the
exercise of taxing and other revenue-raising
powers of LGUs
1. Taxation shall be uniform in all LGUs
2. Taxes, fees, charges and other
impositions shall be
equitable based as far as practicable on
the taxpayers ability to pay;
levied and collected only for public
purpose;
not unjust, excessive, oppressive or
confiscatory; and
not contrary to law, public policy,
national economic policy or in restrain of
trade;
3. collection of taxes, fees, charges and
other impositions shall not be left to any
private person
4. revenue collected shall inure solely to
the benefit and be subject to the disposition
by the LGU, unless specifically provided
herein
5. each LGU shall evolve a progressive
system of taxation.
Exercise by LGU of the power to tax is
ordained by the Constitution; only
guidelines and limitations that may be

Power to Generate and Apply Resources


Establish an organization that shall be
responsible for the efficient and effective
implementation of their development plans,
programs, objectives and priorities
To create their own sources of revenue
To levy taxes, fees and charges which
shall accrue exclusively to their own use and
disposition and which shall be retained by
them
To have a just share in the national taxes
which shall be automatically and directly
102

Nachura Notes Constitutional Law

established by Congress can define and


limits such power of local governments.
Secretary of Justice can review the
constitutionality or legality of tax ordinance
and if warranted, revoke it on either
grounds
Exemption may be withdrawn at the
pleasure of the taxing authority.
Exception: where the exemption was
granted to private parties based on material
consideration of a mutual nature, which then
becomes contractual and is covered by the
non-impairment clause of the Constitution.
Fundamental
Principles
governing
financial affairs, transactions and operations
of the local government:
1. no money shall be paid out of the local
treasury EXCEPT in pursuance of
appropriation ordinance or law
2. local government funds and monies shall
be spent solely for public purpose
3. local revenue is generated only from
sources expressly authorized by law or
ordinance and collection shall at all times be
acknowledged properly
4. all monies officially received by a local
government officer in any capacity shall be
accounted for as local funds unless
otherwise provided by law
5. trust funds in the local treasury shall
not be paid out except in fulfillment of the
purpose for which the trust was created or
the funds received
6. every officer of the LGU whose duties
permit or require the possession or custody
of local funds shall be properly bonded and
such officer shall be accountable and
responsible for said funds and for
safekeeping
7. local governments shall formulate sound
financial plans and the local budgets shall
be based on functions, activities and projects
in terms of expected results
8. local budget plans and goals shall, as far
as practicable, be harmonized with
national
development
plans,
goals,

strategies in order to optimize the utilization


of resources and to avoid duplication in the
use of fiscal and physical resources
9. local budgets shall operationalize
approved local development plans
10. LGUs shall ensure that theirs respective
budget incorporate the requirements of
their component units and provide for
equitable allocation of resources among
those
11. national planning shall be based on local
planning
12. fiscal responsibility shall be shared by
all those exercising authority over financial
affairs, transactions and operations of the
LGUs
13. the LGU shall endeavor to have a
balanced budget in each fiscal year of
operation
Eminent Domain
- Through chief executive and acting
pursuant to an ordinance
- For public purpose/use/welfare, for the
benefit of the poor and landless
- Payment of just compensation
- Valid and definite offer has been
previously made to the owners and such
offer was not accepted
- LGU may immediately take possession:
1. upon filing of the expropriation and
2. making a deposit with the proper court
of at least 15% of the FMV of the property
based on current tax declaration of the
property
- Amount to be paid for the property shall
be determined by proper court based on
FMV at the time of TAKING of the
property.
- Additional Limitations
1. exercised by local chief executive,
pursuant to VALID ordinance
2. public use or purpose or welfare, for the
benefit of the poor and landless
3. after valid and definite offer has been
made to and not accepted by the owner

103

Nachura Notes Constitutional Law

- Power of eminent domain is expressly


granted to the municipality under the LGC
- What is required by law is an
ORDINANCE, not a resolution.
Ordinance is a law while a resolution is
merely a declaration of sentiment or opinion
of a law-making body on a specific matter
3rd reading is needed for an ordinance,
not for a resolution unless decided otherwise
by a majority of the members of the
Sanggunian

- Provided, in case of permanent closure,


ordinance must be approved by at least 2/3
of all members of the sanggunian and when
necessary, an adequate substitute for the
public facility shall be provided.
- Additional limitations:
1. adequate provision for the maintenance
of public safety
2. property may be used or conveyed for
any purpose for which other real property
may be lawfully used or conveyed but no
freedom parks shall be closed permanently
without provision for its transfer or
relocation to a new site.
3. temporary closure may be made during
an actual emergency, fiesta celebration,
public rallies, etc.
- Municipality has the authority to:
1. prepare and adopt a land use map
2. promulgate zoning ordinance
3. close any municipal road
- provincial roads and city streets are
property for public use and under absolute
control of Congress; they are outside
commerce of man and cannot be disposed to
private persons
- Power to vacate is discretionary on the
Sanggunian
- When properties are no longer intended
for public use, the same may be used or
conveyed for any lawful purpose and may
even become patrimonial and subject to
common contract.
- City Council has the authority to
determine whether or not a certain street is
still necessary for public use.

Reclassification of Lands
- City/municipality through ordinance
passed after conducting public hearings
- Authorize reclassification of agricultural
lands
- And provide for the manner of their
utilization/disposition
- Grounds:
1. land ceases to be economically feasible
and sound for agricultural purposes as
determined by Department of Agriculture
2. land shall have substantially greater
economic value for residential, commercial
or industrial purposes, as determined by the
sanggunian
- Reclassification shall be limited to the
following percentage of the total agricultural
land area at the time of the passage of the
ordinance:
1. highly urbanized cities and independent
component cities: 15%
2. component cities and 1st to 3rd class
municipalities: 10%
3. 4th to 6th class of municipalities: 5%
Provided that agricultural land distributed to
land reform beneficiaries shall not be
affected by such reclassification.

Local Legislative Power


Exercised by local sanggunian
Products of legislative action
1. ordinance prescribes permanent rule of
conduct
2. resolution temporary character;
expresses sentiment
Requisites:

Closure and Opening of Roads


- Pursuant to an ordinance
- Permanently or temporarily close or
open any road, alley, park or square falling
within its jurisdiction

104

Nachura Notes Constitutional Law

1. not contravene the Constitution or


statute
2. must not be unfair or oppressive
3. must not be partial or discriminatory
4. must not prohibit but regulate trade
5. must not be unreasonable
6. must be general in application and
consistent with public policy
Approval of Ordinances passed by
SANGGUNIANG
PANLALAWIGAN,
SANGGUNIANG
PANLUNGSOD,
SANGGUNIANG BAYAN shall be
approved by:
1. the local chief executive, affixing his
signature on each and every page
2. local chief executive vetoes the same
and the veto is overridden by 2/3 vote of all
the members of the sanggunian.
The local chief executive may veto only
once.
Grounds:
1. ultra vires
2. prejudicial to the public welfare
He may veto any particular item/s of an:
1. appropriation ordinance
2. ordinance/resolution
adopting
a
development plan and public investment
program
3. ordinance directing the payment of
money or creating liability
The veto shall not affect the item/s not
objected to.
The veto shall be communicated by the
local chief executive to the sanggunian
w/in 15 days in case of a province
w/in 10 days in case of a municipality
Otherwise, the ordinance shall be
deemed approved, as if signed
Grant of veto power accords the Mayor
the discretion whether or not to approve the
resolution signature on the resolution is
NOT ministerial duty of the Mayor.
Ordinance enacted by the sangguniang
barangay shall, upon approval by a majority
of all its members, be signed by the punong
barangay no veto power.

Review by Sangguniang Panlalawigan


w/in 3 days from approval, the secretary
of the sangguniang panlungsod (in
component cities) or sangguniang bayan
shall forward to the sangguniang
panlalawigan for review copies of approved
ordinances and resolutions.
Sangguniang panlalawigan shall review
the same w/in 30 days
If it finds that it is beyond the power of
the sangguniang panlungsod/sangguniang
bayan,
it
shall
declare
the
ordinance/resolution invalid.
If no action is taken w/in 30 days, it is
presumed consistent w/ law and valid.
Review of Barangay Ordinance
w/in 10 days from enactment, the
sangguniang barangay shall furnish copies
of all barangay ordinances to the
sangguniang panlungsod or sangguniang
bayan for review.
If the reviewing sanggunian finds that it
is inconsistent with law or city or municipal
ordinances, the sangguniang concerned,
shall within 30 days return the same with its
comments and recommendations to the
sangguniang barangay for adjustment,
amendment or modification.
The effectivity of the ordinance is
suspended.
If no action is taken by the reviewing
sangguinan within 30 days, the ordinance is
deemed approved.
Enforcement
of
Disapproved
Ordinance/Resolutions
Attempt to enforce an ordinance or
resolution approving the local development
plan and public investment program, after
disapproval, shall be sufficient ground for
the suspension or dismissal of the official or
employee concerned.
Effectivity
o Unless otherwise stated in the
ordinance/resolution, the same shall take
effect AFTER 10 DAYS from the DATE A

105

Nachura Notes Constitutional Law

COPY IS POSTED IN THE BULLETIN


BOARD at the entrance of the provincial
capitol or city, municipal or barangay hall,
and in at least 2 other conspicuous places in
the LGU.
o Gist of all ordinance W/ PENAL
SANCTIONS shall be
PUBLISHED in a newspaper of general
circulation within the province where the
local legislative body belongs;
absence of newspaper of general
circulation, POSTING shall be made in all
municipalities and cities of the province
where the sanggunian of origin is situated.
o In highly urbanized and independent
component cities, the main features of the
ordinance or resolution duly enacted shall,
POSTED,
PUBLISHED once in a local newspaper
of general circulation within the city;
if there is no such newspaper within the
city, then PUBLICATION shall be made in
any newspaper of general circulation.
Authority over Police Units
As may be provided by law.

To sue and be sued


Suit is commenced by the LOCAL
EXECUTIVE, upon authority of the
SANGGUINIAN except when the CITY
COUNCILORS, by themselves and as
representatives of or on behalf of the City
bring the action to prevent unlawful
disbursement of City funds.
Municipality cannot be represented by a
private attorney.
Only the Provincial Fiscal or the
Municipal Attorney. This is mandatory.
Exception: when the Provincial Fiscal is
disqualified to represent it and the fact of
disqualification appears on record.
Fiscals refusal to represent the
municipality is not a legal justification. The
Municipality should request DOJ Secretary
to appoint an Acting Provincial Fiscal
The legality of the representation of an
unauthorized counsel may be raised at any
stage of the proceeding.
Municipal Attorney may validly adopt
the work already performed by a private
lawyer provided that no injustice is
committed against the adverse party and that
no compensation has been paid to the
private counsel.

Corporate Powers
- LGUs shall enjoy full autonomy in the
exercise of their proprietary functions and in
the management of their economic
enterprises

To have and use a corporate seal


Use, modify or change corporate seal
Any change shall be registered with
DILG

1. Continuous succession in its corporate


name
2. To sue and be sued
3. To have and use a corporate seal
4. To acquire and convey real or personal
property
5. Power to enter into contracts
6. To exercise such other powers as are
granted to corporations, subject to
limitations provided in the Code and other
laws

To acquire and convey real or personal


property
LGU may acquire real or personal,
tangible or intangible property in any
manner allowed by law.
LGU may only alienate patrimonial
property, upon proper authority
Absence of proof that the property was
acquired through corporate or private funds,
the presumption is that it came from the
State, thus, governmental or public property.

Continuous succession in its corporate name

106

Nachura Notes Constitutional Law

Town plazas are properties of public


domain; they may be occupied temporarily
but only for the duration of an emergency
Public Plaza is beyond the commerce of
man and cannot be the subject of lease or
other contractual undertaking
Public streets or thoroughfares are
property for public use, outside the
commerce of man and may not be the
subject of lease or other contracts
Procurement of supplies is made through
public competitive bidding
o Exception: amount is minimal

Authority to negotiate and secure grants


Local chief executive upon authority of
the sangguinian
Negotiate and secure financial grants or
donations in kind
In support of the basic services and
facilities in Section 17
From local and foreign assistance
agencies
Without necessity of securing clearance
or approval from any department, agency, or
office of the national government or from
any higher LGU
Provided, projects financed by such
grant or assistance with national security
implications shall be approved by the
national agency concerned.

Power to enter into contracts


Requisites of Valid Municipal Contracts
1. LGU has the express, implied or
inherent power to enter into the particular
contract
2. The contract is entered into by the
proper department, board, committee,
officer, or agent.
o Unless otherwise provided, no contract
may be entered into by the local chief
executive without prior authorization by the
sangguinian concerned.
3. comply with substantive requirements
4. comply with formal requirements
Ultra Vires Contracts: contracts entered
into without compliance with first and third
requisites ultra vires and void.
Cannot be ratified or validated.
Ratification of defective municipal
contracts is possible only when there is noncompliance with the 2nd and/or 4th requisite.
Does not provide that the absence of an
appropriation ordinance ipso facto makes a
contract entered into by a LGU null and
void. Public funds may be disbursed not
only pursuant to an appropriation law, but
also pursuant of other specific statutory
authority.
Police power prevails over nonimpairment clause.
Breach of contractual obligations city
liable for damages

To exercise such other powers as are granted


to corporations, subject to limitations
provided in the Code and other laws
III. MUNICIPAL LIABILITY
Rule: LGUs and their officials are NOT
exempt from liability for DEATH or
INJURY to persons or DAMAGE to
property
Specific Provisions Making LGUs liable:
1. Article 2189, CC: The LGU is liable in
damages for death or injuries suffered by
reason of the DEFECTIVE CONDITION of
roads, streets, bridges, public buildings and
other public works.
Attaches even if the road does not
belong to the LGU, provided that the City
exercises control or supervision over said
road.
2. Article 2180, CC: The State is
responsible when it acts through special
agents
3. Article 34, CC: The LGU is subsidiarily
liable for damages suffered by a person by
reason of the FAILURE or REFUSAL of a
member of the POLICE FORCE to render
107

Nachura Notes Constitutional Law

aid and protection in case of danger to life


and property.

2. a private indivisual who deals with a


municipal
corporation
is
imputed
constructive knowledge of the extent of the
power o authority of the municipal
corporation to enter into contracts.
3. ordinarily, estoppel does not lie against
the municipal corporation.
4. Doctrine of Implied Municipal Liability:
a municipality may become obligated upon
an implied contract to pay the reasonable
value of the benefits accepted or
appropriated by it as to which it has the
general power to contract.
Applies to all cases where money or
property of a party is received under such
circumstances that the general law,
independent of an express contract, implies
an obligation to do justice with respect to the
same.
Cannot set up plea that it is ultra vires
but still retain the benefits.
EStoppel cannot be applied against a
municipal corporation in order to validate a
contract which the municipal corporation
has no power to make or which it is
authorized to make only under prescribed
limitations or in a prescribed mode or
manner even if the municipal corporation
has accepted benefits.
If a suit is filed against a local official
which could result in personal liability, the
latter may engage the services of private
counsel.

Liability for Tort decisions PRIOR to


LGC
1. if
a
LGU
is
engaged
in
GOVERNMENTAL functions, it is NOT
liable
2. if a LGU is engaged in proprietary
function, it is liable
City is liable for the tortuous acts of its
employees under the principle of respondeat
superior
3. Liability for illegal dismissal of
employee
Absent proof of malice or bad faith
which attended the illegal dismissal cannot
be held personally accountable
Municipal corporation, whether or not
included in the complaint for recovery of
back salaries due to wrongful removal from
office is liable
4. Local officials may be held personally
liable
Acted beyond the scope of their
authority and with bad faith
Must be sued in their personal capacity
When they act maliciously and wantonly
and injure individuals rather than discharged
a public duty, they are personally liable.
Liability for Violation of the Law
1. closed part of a municipal street without
indemnification liable for damages
2. non-payment of minimum wage to
employees
3. refusal to abide by the TRO

IV. LOCAL OFFICIALS


Provisions applicable to elective and
appointive local officials
1. Prohibited Business and Pecuniary
Interest
Unlawful for any local government
official/EE, directly or indirectly, to:
1. engage in any business transaction with
the LGU which he is an official or employee
or over which he has the power of
supervisions

Liability for Contracts


1. Rule: A municipal corporation, like an
ordinary person, is liable on a contract it
enters into, provided that the contract is intra
vires.
If the contract is utra vires, the municipal
corporation is not liable.

108

Nachura Notes Constitutional Law

2. hold such interest in any cockpit or other


games licensed by the LGU
3. purchase any real estate or other
property forfeited in favor of the LGU for
unpaid taxes or by virtue of legal process at
the instance of LGU
4. be a surety for any person contracting or
doing business with the LGU for which a
surety is required
5. possess or use any public property of the
LGU for private purpose
6. prohibitions and inhibitions prescribed in
RA 6713

emergency. Provided they do not derive


monetary compensation.
3. Prohibition Against Appointment
1. not eligible for appointment/designation
in any capacity to any public office/position
during his tenure.
Shall not hold any other office or
employment in the government, unless
otherwise allowed by law or the primary
functions of the office.
2. no candidate who lost in any election
shall, within one year after such election be
appointed to any office in the government
Except: losing candidates in barangay
elections

2. Practice of Profession
1. GOVERNORS, CITY and MUNICIPAL
MAYORS are prohibited from practicing
their profession or engaging in any
occupation other than the exercise of their
function.
2. SANGGUNIAN
MEMBERS
may
practice their profession, engage in any
occupation, or teach in schools EXCEPT
during session hours.
Provide that those who are also
MEMBERS of the BAR shall NOT:
1. appear as counsel before any court in
any civil case wherein the LGU is the
adverse party
2. appear as counsel in any criminal case
wherein an officer or EE of the national or
local government is accused of an offense
committed in relation to his office
3. collect any fee for their appearance in
administrative proceedings involving the
LGU
4. use property and personnel of the
government except when the sanggunian
member is defending the interest of the
government.
Prohibition against private practice, if
such practice represents interests adverse to
the government.
3. DOCTORS of medicine may practice
their profession even during OFFICIAL
HOURS of work only on occasions of

Elective Local Officials


Qualifications
1. CITIZENS of the Philippines
2. REGISTERED VOTER in the barangay,
municipality, city, province
or in case of a member of the
Sangguniang Panlalawigan, Panlungsod or
Bayan the district where he intends to be
elected.
3. RESIDENT therein for at least 1 year
immediately preceding the election
4. able to read and write Filipino or any
other local language or dialect
5. on election day, must be at least
25 governor, vice-gov, members of the
sangguniang panlalawigan, mayor, vicemayor or members of the sangguniang
panlungsod of highly urbanized cities
21 mayor, vice-mayor of independent
component cities, component cities or
municipalities
18 members of the sangguniang
panlungsod or sangguniang bayan or punong
barangay or member of the sangguiniang
barangy
At least 15 but not more than 21
sangguniang kabataan

109

Nachura Notes Constitutional Law

the sangguniang panlalawigan, panlungsod


or bayan.
6. 1 sectoral representative from women,
worker and any of the ff:
a. Urban poor
b. Indigenous cultural communities
c. Disabled persons
d. Any other sectors as may be determined
by the sanggunian concerned w/in 90 days
prior to the holding of the next local
election.

not more than 21 is not equivalent to


less than 22
Disqualifications
1. sentenced by final judgment for an
offense involving moral turpitude or for an
offense punishable by 1 year or more of
imprisonment within 2 years after serving
sentence
2. removed from office as a result of
administrative case
3. convicted by final judgment for violating
the oath of allegiance to the Republic
4. dual citizenship
5. fugitives from justice in criminal or nonpolitical cases here or abroad
6. permanent residents in a foreign country
or those who have acquired the right to
reside abroad and continue to avail of the
same right after the effectivity of the Code
7. insane or feebele-minded

Date of Election
Every 3 years
2nd Monday of may
Unless otherwise provided by law
Term of Office
3 years starting from noon of June 30,
1992 OR such date as may be provided by
law
Except that of barangay official
No elective local official shall serve for
more than 3 consecutive terms in the same
position
Term of barangay officials and members
of the sangguniang kabataan 5 years

ELECTIVE
LOCAL
OFFICIAL
removed via administrative case before
January 1, 1992 (date of effectivity of the
LGC) is NOT disqualified.
Manner of Election
1. Governor, Vice-Governor, City or
Municipal Mayor, City or Municipal ViceMayor and Punong Barangay elected at
large
2. Sangguniang Kabataan Chairman
elected by registered voters of the katipunan
ng kabataan
3. Regular Members of the Sangguniang
Panlalawigan, Panlungsod and Bayan
elected by district.
4. Presidents of the leagues of Sangguinang
Members of component cities and
municipalities serve as ex-officio
members of the sangguniang panlalawigan
5. Presidents of the Liga ng mga Barangay
and Pederasyon ng mga Sangguniang
Kabataan elected by their respective
chapters serve as ex-officio members of

- 3-term limit on a local official is to be


understood to refer to terms for which the
official concerned was elected.
- He must have been elected to the same
position for the same number of times
before the disqualification can apply.
- Prohibited election refers to the next
regular election for the same office
following the end of the third consecutive
term. Any subsequent election, like a recall
election, is no longer covered by the
prohibition:
1. subsequent election like a recall election
is no longer an immediate re-election after
three consecutive terms
2. intervening period constitutes an
involuntary interruption in the continuity of
service
110

Nachura Notes Constitutional Law

recommendation of
barangay concerned

Rules on Succession
- Permanent vacancies:
1. fills a higher vacant office
2. refuses to assume office
3. fails to qualify
4. dies
5. removed from office
6. voluntarily resigns
7. permanently incapacitated to discharge
the functions

the

sangguniang

EXCEPT for the sangguniang barangay,


only the nominee of the political party under
which the sanggunian member concerned
had been elected and whose elevation to the
position next higher in rank created the last
vacancy in the sanggunian shall be
appointed.
A nomination and a certificate of
membership of the appointee from the
highest official of the political concerned are
conditions sine qua non.
In case the permanent vacancy is caused
by a sanggunian member who does not
beling in any political party, the local chief
executive shall upon recommendation of the
sangguinian concerned, shall appoint a
qualified person to fill the vacancy.
Reason: to maintain party representation
Recommendation by the sanggunian
takes the place of nomination by the
political party (since members of the
sanggunian barangay are prohibited to have
party affiliation) and is considered condition
sine qua non.
Vacancy in the representation of the
youth and the barangay in the sanggunian
filled automatically by the official next in
rank of the organization concerned.
Member of the Sangguniang Kabataan
who obtained the next highest number of
votes shall succeed as Chairman if the latter:
1. refuses to assume office
2. fails to qualify
3. convicted of a crime
4. voluntarily resigns
5. dies
6. permanently incapacitated
7. removed from office
8. has been absent without leave for more
than 3 consecutive months
* ineligibility is not one of the causes
enumerated in LGC
Temporary Vacancies

a. Governor/Mayor

ViceGovernor/Vice-Mayor
b. Vice-Governor/Vice-Mayor highest
ranking sanggunian member OR 2nd highest
ranking, and subsequent vacancies shall be
filled automatically by the other sanggunian
members according to their ranking
Ranking in the sanggunian member shall
be determined on the basis of the proportion
of votes obtained by each winning candidate
to the total number of registered voters in
each district in the immediately preceding
election.
Mode of succession for permanent
vacancies may also be applied in cases of
temporary vacancies.
c. Punong Barangay highest ranking
sanggunian barangay member OR 2nd
highest
Tie between or among the highest
ranking sanggunian members shall be
resolved by drawing lots.
d. Sanggunian member where automatic
succession do not apply:
1. appointment by PRESIDENT, through
Executive Secretary in the case of
Sangguniang Panlalawigan or Panlungsod of
highly urbanized cities and independent
component cities
2. apponted
by
GOVERNOR

sangguniang panlungsod of component


cities and the sangguniang bayan
3. appointed by CITY or MUNICIPAL
MAYOR sangguniang barangay upon
111

Nachura Notes Constitutional Law

Governor/City
or
Muncipal
Mayor/Punong Barangay is temporarily
incapacitated, due to but not limited to:
1. leave of absence
2. travel abroad
3. suspension from office

Compensation
determined
by
the
Sanggunian
concerned
elective barangay official:
1. honoraria
2. allowances and other emoluments,
which in no case less that P1,000/month for
the punong barangay and P600 for the
sangguniang barangay members
Elective local officials entitled to the
same leave privileges as those enjoyed by
appointive
local
officials,
including
cumulation and commutation

vice governor/city or municipal vicemayor or the highest ranking sanggunian


barangay member shall automatically
exercise the powers and perform the duties
EXCEPT:
1. power to appoint
2. power to suspend
3. power to dismiss
* which can be exercised only if the period
of temporary incapacity exceeds 30 working
days.

Resignation
- deemed effective upon acceptance by the
ff:
1. President

governor/vicegov/mayor/vice-mayor of highly urbanized


cities and independent component cities
2. Governor municipal mayors/vicemayors/city
mayors/vice-mayors
of
component cities
3. Sanggunian concerned sanggunian
members
4. city or municipal mayor barangay
officials

- Temporary incapacity shall terminate


upon submission to the appropriate
sanggunian of a written declaration that he
has reported back to office.
- If temporary incapacity due to legal
causes shall also submit necessary
documents showing that legal cause no
longer exists.
If local chief executive traveling within the
country but outside his territorial jurisdiction
for a period not exceeding 3 consecutive
days, he may designate in writing the
officer-in-charge of the office.
- Such shall specify the powers and
functions
- If the local chief executive refuses to
issue such authorization, the vice
governor/city or municipal vice-mayor or
the highest ranking sanggunian barangay
member shall have the right to assume on
the 4th day of the absence of the local chief
executive EXCEPT

- resignation is deemed accepted if not


acted upon within 15 working days from
receipt
- irrevocable resignations by sanggunian
members shall be deemed accepeted upon
1. presentation before an open session
2. duly entered un its record
3. EXCEPT: where sangguniang members
are subject to recall elections or to cases
where existing laws prescribe the manner of
acting upon such resignations.
Grievance Procedure
- Local chief executive shall establish
procedure

1. power to appoint
2. power to suspend
3. power to dismiss

Discipline

112

Nachura Notes Constitutional Law

Grounds

disciplined/suspended/removed
1. Disloyalty to the Philippines
2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in
office, gross negligence, or dereliction of
duty
- Acts of lasciviousness cannot be
considered misconduct; to constitute a
ground for disciplinary action, official
charged with the offense must be convicted
in the criminal action
4. Commission of any offense involving
moral turpitude or an offense punishable by
at least prision mayor
5. abuse of authority
6. unauthorized absence of 15 consecutive
working days except in the case of members
of
the
sangguniang
panlalawigan,
panlungsod, bayan and barangay
7. application for, or acquisition of, foreign
citizenship or residence or the status of an
immigrant of another country
8. other grounds as may be provided in this
code and other laws

- Local governments under supervision of


the Executive.
- The Constitution allows Congress to
include in LGC provisions for removal of
local officials; LGC has delegated its
exercise to the President.
- President has delegated the power to
investigate complaints to the Secretary of
DILG alter ego principle
- Right to formal investigation appeal
and defend himself in person or by counsel;
confront witnesses against him; compulsory
process for the attendance of witnesses and
the production of documents.
ELECTIVE MUNICIPAL OFFICIALS
FILED
BEFORE
SANGGUNIANG
PANLALAWIGAN APPEALABLE TO
OFFICE OF THE PRESIDENT
- On appeal from decision of the
Sanggunian Panlalawigan, the President
may stay execution of appealed decision
- Decision of Sanggunian Panlalwigan
must be:
1. in writing
2. state clearly and distinctly the facts and
the reasons for the decisions
3. signed by the requisite majority of the
sanggunian

- An elective local official may be


removed from office on the above grounds
by order of the proper court.
Complaints verified complaint against;
1. provincial/highly urbanized city or
independent component city elective official
filed before Office of the President
2. Elective municipal officials filed
before
Sangguniang
Panlalawigan
appealable to Office of the President
3. Elective barangay official filed before
Sangguiniang Panlungsod or Sangguniang
Bayan final and executory

ELECTIVE BARANGAY OFFICIAL


FILED
BEFORE
SANGGUINIANG
PANLUNGSOD OR SANGGUNIANG
BAYAN FINAL AND EXECUTORY
Preventive Suspension may be imposed by
the PRESIDENT, GOVERNOR or MAYOR
- any time after the issues are joined
- evidence of guilt is strong
- given the gravity of the offense
- there is great probability that the
continuance in office could influence the
witnesses or pose threat to the safety and
integrity of the records and other evidence

PROVINCIAL/HIGHLY
URBANIZED
CITY OR INDEPENDENT COMPONENT
CITY ELECTIVE OFFICIAL FILED
BEFORE OFFICE OF THE PRESIDENT

113

Nachura Notes Constitutional Law

- Provided, single preventive suspension


shall not extend beyond 60 days
- In the event that several administrative
cases are filed, he cannot be suspended for
more than 90 w/in a single year on the same
ground or grounds existing and known at the
time of the first suspension.

- decisions of OP final and executory


- administrative appeal to OP is possible;
only means that administrative appeal will
not prevent enforcement of the decision
Execution Pending Appeal
- appeal shall not prevent decision from
being executed
- during pendency of appeal shall be
considered as having been placed under
preventive suspension
- OP may stay execution of a decision
pending appeal

- Authority to preventively suspend is


exercised concurrently by the Ombudsman
six (6) months
- The preventive suspension of an elective
local official by the Sandiganbayan shall
only be for 60 days and not 90 days.
- Upon
expiration
of
preventive
suspension, officer shall be REINSTATED
to office without prejudice to the
CONTINUATION
OF
THE
PROCEEDINGS which shall be terminated
within 120 days from the time he was
formally notified of the case against him.
- Abuse of exercise of power of
preventive suspension abuse of authority

Effect of Re-election
- Bars continuation of administrative case
against him
- Re-election is tantamount to condonation
by the people
Appointive Local Officials
Responsibility for human resources and
development
- Local chief executive
- May employ emergency or casual
employees or laborers paid on daily wage or
piecework basis and hired through job
orders for local projects authorized by
sanggunian, without need of approval from
CSC
- Said employment shall not exceed 6
months.

Penalty
- Penalty of suspension shall not exceed
his unexpired term or a period of 6 months
for every administrative offense
- Nor shall penalty be a bar to candidacy
as long as he meets requirements
- Penalty of removal from office as a
result of an administrative case shall be a bar
to the candidacy for any elective office.
- Not more than 6 months for each
offense; provide, the total does not exceed
the unexpired portion of his term

Officials
Common
to
all
Municipalities/Cities/Provinces
1. Secretary to the Sanggunian
2. Treasurer
3. Assessor
4. Accountant
5. Budget Officer
6. Planning and Development Coordinator
7. Engineer
8. Health Officer
9. Civil Registrar
10. Administrator

Administrative Appeal w/in 30 days from


receipt
1. to Sangguniang Panlalawigan
component cities sangguniang panlungsod
and sangguniang bayan
2. to OP Sangguniang Panlalawigan and
Sangguniang
Panlungsod
of
highly
urbanized cities and independent component
cities

114

Nachura Notes Constitutional Law

11. Legal Officer


12. Agriculturist
13. Social Welfare and Development Officer
14. Environment and Natural Resources
Officer
15. Architect
16. Information Officer
17. Cooperatives Officer
18. Population Officer
19. Veterinarian
20. General Services Officer

- If penalty is suspension without pay for


not more than 30 days, decision shall be
final.
- If heavier, appealable to CSC which
shall decide the appeal within 30 days from
receipt.
- Disciplinary authority over City
Revenue Officer City Treasure NOT
Mayor.
V.
INTER-GOVERNMENTAL
RELATIONS

- In the barangay, mandated appointive


officials:
1. Barangay Secretary
2. Barangay Treasurer

National Government
Power of General Supervision
- President over LGUs
- Supervisory authority directly over
provinces, highly urbanized cities and
independent component cities.
- Through the Province with respect to
component cities and municipalities
- Through City and Municipality with
respect to barangays

Administrative Discipline in accordance


with civil service law and other pertinent
laws
1. Preventive Suspension
- Local chief executive
- Period not exceeding 60 days
- Any subordinate officer or employee
under his authority
- Pending investigation
- If the charge involves:
1. dishonesty
2. oppression
3. grave misconduct
4. neglect in the performance of duty
5. or if there is reason to believe that
respondent is guilty of the charges which
would warrant removal
2. Disciplinary Jurisdiction
- Local chief executive may impose
penalty of :
1. removal
2. demotion in rank
3. suspension for not more than 1 year
without pay
4. fine in an amount not exceeding 6
months salary
5. reprimand

Coordination with National Agencies


- National agencies and offices with
project implementation functions shall
coordinate with one another and with the
LGU
- Ensure participation of LGU in planning
and implementation of national projects.
Consultation
- Before project or program shall be
implemented:
1. consultation
2. prior approval of sanggunian
- Provided, occupants in areas where such
projects are to be implemented shall not be
evicted unless appropriate relocation sites
have been provided.
Philippine National Police

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Nachura Notes Constitutional Law

- Operational supervision of local chief


executive police force, fire protection
unit and jail management personnel

LGU, through local chief executive with


concurrence of sanggunian, provide
assistance financial or otherwise to
Peoples
and
Non-Governmental
Organizations for economic, sociallyoriented, environmental or cultural projects
to be implemented within its territorial
jurisdiction.

Inter-Local Government Relations


- Province through Governor
Ensure that every component city and
municipality within its territorial jurisdiction
acts within the scope of its prescribed
powers
Highly urbanized cities and independent
component cities shall be independent of the
province.
Governor shall review a; Eos
promulgated by the component city or
municipal mayor within its jurisdiction.
The city or municipal mayor shall
review all EOs promulgated by the punong
barangay within his jurisdiction.
Failure to act w/in 30 days from
submission deemed consistent with law
and therefore valid.
- In the absence of a municipal legal
officer, municipal government may secure
opinion of provincial legal officer; absence
of the latter, provincial prosecutor.
- City or Municipal Mayor exercise
general supervision over component
barangays
- LGUs
may
through
appropriate
ordinance group themselves, consolidate or
coordinate their efforts/services/resources
for purposes commonly beneficial to them.
Contribute fund upon approval by
sanggunian after public hearing

Mandated Local Agencies


1. Local School Board
2. Local Health Board
3. Local Development Council
4. Local Peace and Order Council
Settlement of Boundary Disputes
1. Boundary Disputes between and among
LGUs
Settled amicably
Rules
a. Involving 2 or more barangays in the
same city/municipality referred to
Sangguniang Panlungsod or Sangguniang
Bayan
b. Incolving 2 or more municipalities in the
same province referred to Sangguniang
Panlalawigan
c. Involving municipalities or component
cities in different provinces jointly referred
to the sanggunians of the provinces
d. Involving a component city or
municipality on the one hand and a highly
urbanized city on the other, or 2 or more
highly urbanized cities jointly referred to
the respective sanggunians of the parties
2. Sanggunian fails to effect a settlement
within 60 days from the date the dispute was
referred to it, it shall issue a certification.
3. Dispute shall then be formally tried by
the sanggunian, which shall decide the issue
within 60 days from the date of the
certification.
4. within the time and manner prescribed
by the ROC, any party may elevate the
decision of the sanggunian concerned to the

Peoples
and
Non-Governmental
Organizations
LGUs shall promote their establishment
to become active partners in the pursuit of
local autonomy.
LGUs may enter into joint ventures and
other cooperative arrangements with
Peoples
and
Non-Governmental
Organizations to engage in the delivery of
basic services.
116

Nachura Notes Constitutional Law

proper RTC having jurisdiction over the area


in dispute which shall decide the appeal
within 1 year from filing.
5. Settlement of boundary dispute between
a municipality and an independent
component city in the same province
RTC in the province that can adjudicate the
controversy.
6. The boundaries must be clear for they
define the limits of the territorial jurisdiction
of the LGU. It can legitimately exercise
powers of government only within the limits
of its territorial jurisdiction. Beyond these
limits, its acts are ultra vires.
VI.
LOCAL
REFERENDUM

INITIATIVE

Two or more propositions may be submitted


in an initiative. The COMELEC or
designated representative shall extend
assistance in the formulation of the
proposition.
4. Proponents collect the required number
of signatures within
90 days in case of provinces and cities
60 days in case of municipalities
30 days in case of barangays
From NOTICE
5. The petition shall be signed before the
election registrar or his representative, in
the presence if the a representative of a
proponent and a representative of the
sanggunian in a public place in the local
government unit.
6. Lapse of the period, COMELEC shall
certify as to whether the required the
number of signatures has been obtained.
Failure to obtain the required number of
signatures. Failure to obtain the required
number
of signatures
defeats
the
proposition.
7. If required number is obtained, the
COMELEC shall set a date for the initiative
during which the proposition is submitted to
the registered voters for their approval:
w/in 60 days in case of provinces
w/in 45 days in case of municipalities
w/in 30 days in case of barangays
from date of CERTIFICATION by
COMELEC.
The initiative shall be held on the date set,
after which the results shall be certified and
proclaimed by the COMELEC.
8. If the proposition is approved by a
majority of the votes cast, it shall take effect
15 days after certification by the
COMELEC.

AND

Local Initiative
It is the legal process whereby the
registered voters of a local government unit
may directly propose, enact or amend any
ordinance.
It may be exercised by all registered
voters.
Procedure
1. Petition filed with the sanggunian
proposing the adoption, enactment, repeal or
amendment of an ordinance
Not less than 2,000 registered voters in
the region
Not less than 1,000 registered voters in
cases of provinces and cities
Not less than 100 voters in case of
municipalities
Not less than 50 voters in case of
barangays
2. If no favorable action taken, within 30
days from presentation, the proponents
through their duly authorized and registered
representatives, may invoke their power of
initiative, giving notice to the sanggunian
concerned.
3. The proposition shall be numbered
serially starting from Roman Numeral I.

Limitations
On Local Initiative
1. not be exercised more than once a year

117

Nachura Notes Constitutional Law

2. extend only to subjects or matters which


are within the legal powers of the
sanggunian to enact
3. at any time before the initiative is held,
the sanggunian adopts in toto the proposition
presented and the local chief executive
approves the same, the initiative shall be
cancelled. However, those against such
action may apply for initiative.

Chief Officials and Offices


There shall be in each barangay:
1. PUNONG BARANGAY
2. 7 SANGGUNIANG BARANGAY
MEMBERS
3. The SANGGUNIANG KABATAAN
CHAIRMAN
4. BARANGAY SECRETARY
5. BARANGAY TREASURER
6. LUPONG TAGAPAMAYAPA

On the Sanggunian
Any proposition or ordinance approved
through an initiative and referendum shall
not be repealed, modified or amended by the
sanggunian w/in 6 months from date of
approval.
Amended, modified or repealed w/in 3
years by a vote of all its members.
In case of barangays, the period shall be
18 months after the approval.

The Sangguniang Barangay may form


brigades and create such other positions or
offices as may be deemed necessary to carry
out the purposes of the barangay
government.
Punong
Barangay,
Sangguniang
Barangay Members and members of the
Lupong Tagapamayapa in each barangay
shall be deemed as Persons in Authority in
their jurisdiction; while other barangay
officials and members who may be
designated by law or ordinance and charged
with maintenance, protection and security,
and any barangay members who comes to
the aid of persons in authority shall be
deemed agents of persons in authority.
Barangay Chairman is a public officer
who may e charged with arbitrary detention.
Barangay Chairman entitled to possess
and carry firearms within the territorial
jurisdiction of the barangay.

Local Referendum
Legal process whereby the registered
voters of the LGUs may approve, amend or
reject any ordinance enacted by the
sanggunian.
The local referendum shall be held under
the control and direction of the COMELEC:
1. w/in 60 days in case of provinces
2. w/in 45 days in case of municipalities
3. w/in 30 days in case of barangays
COMELEC shall certify and proclaim
the results of the said referendum.

The Barangay Assembly


Composed of:
1. All persons who are actual residents of
the barangay for at least 6 months,
2. 15 years of age or over
3. Citizens of the Philippines
4. Duly registered in the list of barangay
assembly members
Meet at least 2x a year to hear and
discuss the semestral report to the
sangguniang barangay concerning its

Authority of Courts
Nothing shall preclude the proper courts
from declaring null and void any proposition
approved pursuant for violation of the
Constitution or want of capacity of the
Sanggunian concerned to enact said
measure.
VII. LOCAL GOVERNMENT UNITS
The Barangay

118

Nachura Notes Constitutional Law

activities and finances


affecting the barangay.

and

problems

1. a Chairman
2. 7 Members
3. a secretary
4. a treasurer
- An official who, during his term of
office, shall have passed the age of 21 shall
be allowed to serve the remaining portion of
the term for which he was elected.

Powers of the Lupon


1. Exercise administrative supervision over
the conciliation panels
2. Meet regularly once a month to provide
a forum for exchange of ideas among its
members and the public of matters relevant
to the amicable settlement of disputes, and
to enable various conciliation panel
members to share with one another their
observations and experiences in effecting
speedy resolution of disputes
3. Exercise such other powers and perform
such other duties and functions as may be
prescribed by law or ordinance

Katipunan ng Kabataan
Shall be composed of:
1. all citizens of the Philippines actually
residing in the barangay for at least 6
months
2. who are 15 but not more than 21 years of
age
3. duly registered in the list of the
sangguniang kabataan or in the official
barangay list in the custody of the barangay
secretary.
It shall meet once every 3 month, or at
the call of the sangguniang kabataan
chairman, or upon written petition of at least
1/20 of its members.

Katarungang Pambarangay
Lupong Tagapamayapa
Punong barangay as chairman
10 to 20 members
Constituted every 3 years

Pangkat ng Tagapagkasundo
Conciliation panel or Pangkat ng
Tagapagkasundo shall be constituted for
each dispute brought before the lupon.
Consists of 3 members
Chosen by the parties to the dispute
From list of members of the lupon
Should the parties fail to agree on the
pangkat membership, the same shall be
determined by lots drawn by the lupon
chairman

Pederasyon ng mga Sangguniang Kabataan


There shall be an organization of all the
prederasyn ng mga sangguniang kabataan:
1. in
municipalities pambayang
pederasyon
2. in cities panlungsod ng pederasyon
3. in
provinces

panlalawigang
pederasyon
4. special
metropolitan
political
subdivision

pangmetropolitang
pederasyon
5. on national level pambansang
pederasyon

Subject Matter of Amicable Settlement


1. procedure
2. conciliation
3. arbitration
4. effects of settlement and arbitration
award

Leagues
of
Local
Government
Units/Officials
- Liga ng mga Barangay
Organization of all the barangays for the
primary purpose of determining the
representation of the Liga in the sanggunians

Sangguniang Kabataan
- Creation: There shall be in every
barangay a Sangguniang Kabataan
119

Nachura Notes Constitutional Law

o In the exercise of its exclusive appellate


jurisdiction, COMELEC has the power to
issue writs of prohibition, mandamus or
certiorari.
In the absence of any express provision,
RTC, a court of general jurisdiction, has
jurisdiction over controversies involving
election of members of the Sangguniang
Kabataan.
Decision in appealed cases involving
elective municipal and barangay officials
raised to SC via SCA for certiorari on the
ground that COMELECs factual finding is
marred by grave abuse of discretion.
Review of a decision of the Electoral
Tribunal is possible only in the exercise of
supervisory or extraordinary jurisdiction,
and only upon showing that the Tribunals
error results from whimsical, capricious,
unwarranted, arbitrary or despotic exercise
of power.
Purposes of election contests cognizable
by Electoral Tribunal HRET rules of
procedure prevail over provisions of the
Omnibus Election Code

And for ventilating, articulating and


crystallizing issues affecting barangay
government administration and securing,
through proper and legal means, solutions.
Liga is empowered to create such other
positions as may be deemed necessary.
League of Municipalities
Organized for the primary purpose of
ventilating, articulating and crystallizing
issues affecting municipal government
administration, and securing through proper
and legal means, solutions.
XII. ELECTION CONTESTS
Jurisdiction over Election Contests
Original and Exclusive
1. President/VP
SC
2. Senator
Senate ET
3. Representative
HRET
4. Regional/Provincial/City COMELEC
5. Municipal
RTC
6. Barangay
MTC/MeTC
Appellate
Decision
of RTC/MTC/MeTC =
exclusively to COMELEC, whose decision
shall be final, executory and unappealable.
Election Contests for Municipal Offices:
o Filed with RTC shall be decided
expeditiously.
o Decision may be appealed to
COMELEC w/in 5 days from promulgation
or receipt of copy by the aggrieved party.
o COMELEC shall decide appeal within
60 days after it is submitted for decision, but
not later than 6 months after the filing of the
appeal, which decision shall be final,
executory and unappealable.
o MR is a prohibited pleading.
o COMELEC cannot deprive RTC of its
competence to order EXECUTION of its
decision PENDING APPEAL, being a
judicial prerogative and there being no law
disauthorizing the same.

Actions which may be Filed


1. Election Protest
2. Quo Warranto
Election Protest
Requisites:
1. filed by any candidate who has filed a
certificate of candidacy and has been vote
upon for the same office.
2. on grounds of fraud, terrorism,
irregularities or illegal acts committed
before, during or after casting and counting
of votes
rights of contending parties must yield to
the far greater interest of the citizens in
upholding the sanctity of the ballot.
COMELEC cannot simply close its eyes
to the illegality of the ballots, even if the
protestant omitted to raise the ground in his
protest.

120

Nachura Notes Constitutional Law

Handwriting even without the use of


experts; being an internal matter.
Order regarding the revision of ballots is
an interlocutory order requires a party to
perform certain acts leading to the final
adjudication of the case.
General Rule: The filing of an election
protest or quo warranto precludes the
subsequent filing of a pre-proclamation
controversy or amounts to an abandonment
of one earlier filed, depriving the
COMELEC of the authority to inquire into
and pass upon the title of the protestee or the
validity of the proclamation.
o Exceptions:
1. Board of Canvassers was improperly
constituted.
2. Quo Warranto is not the proper remedy.
3. What was filed was not really a petition
for quo warranto or an election protest but a
petition to annul a proclamation
4. filing of an election contest was
expressly made without prejudice to the preproclamation controversy or was made in ad
cautelam
5. proclamation was null and void (in
which case the pre-proclamation case is not
rendered moot)
general denial does not amount to an
admission of the material allegations in the
protest.
Failure to commence the revision of
ballots in the counter-protested precincts is
deemed a waiver of his counter-protest.
Omissions are merely administrative
lapses, error to nullify election results in the
absence of clear showing of fraud.
3. w/in 10 days from proclamation of the
results of the election
period for filing election protest is
suspended while pre-proclamation case is
pending.
After 5 days from Proclamation files
appeal in pre-proclamation case only 5
days left to file election protest.

COMELEC may not entertain a counterprotest filed beyond the reglementary period
to file the same
Petition or protest contesting the election
of a barangay official should be decided by
the MTC/MeTC w/in 15 dyas from filing.
Payment of Docket Fees
o Pay docket fee of )300
o Additional docket fees for damages
o Failure to pay, protest should be
dismissed
Requirement for Certificate of Absence
of Forum Shopping
Death of Protestant
o Does not extinguish election protest.
o Imbued with public interest involves
not only adjudication of the private interest
of the rival candidates but also the
paramount need of dispelling once and for
all the uncertainty that beclouds the real
choice of the electorate with respect to who
shall discharge the prerogatives of the
office.
o If persons not real parties in interest in
the action could be allowed to intervene,
proceedings
will
be
unnecessarily
complicated, expensive and interminable.
Quo Warranto
Requisites:
1. filed by any registered voter in the
constituency
2. grounds of ineligibility or disloyalty to
the Republic
3. w/in 10 days from proclamation
Distinction between Quo Warranto in
elective and appointive office
1. Elective Office
- Issue is the eligibility of the officer-elect
- Court/tribunal cannot declare protestant
or the candidate who obtained the 2nd highest
number of votes as having been elected.
121

Nachura Notes Constitutional Law

There must be a final judgment of


disqualification before the election in order
that the votes of the disqualified candidate
can be considered stray.
In voting for a candidate who has not
been disqualified by final judgment during
election day, the people voted for him bona
fide, without any intention to misapply their
franchise and in the honest belief that the
candidate was then qualified to be the
person to whom they would entrust the
exercise of the power s of government.
2. Appointive Office
- Issue is the legality of the appointment
- The court determined who of the parties
has legal title to the office

Filed before expiration of the period for


appeal.
Award of Damages
Actual and compensatory damages may
be awarded in election contests and quo
warranto proceedings
Intent of the legislators to do away with
the provisions indemnifying the victorious
party for expenses incurred in the election
contest, in the absence of a wrongful act or
omission clearly attributable to the losing
party.
Question for damages remain ripe for
adjudication notwithstanding that the appeal
from a decision of the election case has
already been moot

Execution Pending Appeal


TC may grant a motion for execution
pending appeal, because the mere filing of
an appeal does not divest the trial court of its
jurisdiction.
Since it had jurisdiction to act on the
motion at the time it was filed, that
jurisdiction continued until the matter was
resolved, and was not lost by the subsequent
action of the opposing party.
Rationale: to give as much recognition to
the worth of the trial judges decision as that
which is initially ascribed by law to the
proclamation of the Board of Canvassers,
To prevent the grab the proclamation,
prolong the protest techniques.
Factors:
o Public interest involved or will of the
electorate
o Shortness of the remaining portion of the
term
o Length of time that the election contest
has been pending
Reasons allowing for immediate
execution must be of such urgency as to
outweigh the injury or damage of the losing
party should such party secure a reversal of
judgment on appeal.

Contest
Involving title or claim of title to an
elective office, made before or after
proclamation of the winner, whether or not
the contestant is claiming the office in
dispute.
Election, Returns and Qualifications
Collectively, all matters affecting the
validity of the contestees title to the
position
Election
Conduct of the polls
Includes
1. listing of votes
2. holding of election campaign
3. casting of votes
4. counting of votes
Returns
Includes:
1. canvass of returns
2. proclamation of winners
3. questions concerning composition of
Board of Canvassers
4. authenticity of elections returns

122

Nachura Notes Constitutional Law

Qualifications
may be raised in quo-warranto
proceeding against proclaimed winner

May validly delegate to Provincial


Prosecutor.
It is not the duty of the COMELEC to
gather proof in support of a complaint.
Trial and Decision RTC has exclusive
jurisdiction to try and decide any criminal
actions or proceedings for violation of
election laws.
The MTC and MeTC, by way of
exception, exercises jurisdiction only over
offenses relating to failure to register or to
vote.

XIII. ELECTION OFFENSES


Prohibited Acts
1. Vote-buying and vote-selling
o Distribution of yosi (People vs. Ferrer)
2. Wagering upon the result of the elections
o Bet or wager forfeited to Government
3. Threats, intimidation, terrorism, use of
fraudulent device or other forms of coercion
4. Appointment of new employee
o Exception:
a. In case of urgent need
b. w/ notice given to COMELEC
c. w/in 3 days from appointment
o Includes creation of new positions,
promotion or granting of salary increase.
5. Carrying of deadly weapon within a
radius of 100 meters from precint
o Not necessary that deadly weapon be
seized from the accused.
6. Transfer or detail of government
official/employee
without
COMELEC
approval
o Exception: not penalized, if done to
promote efficiency.
o To prove violation:
a. Fact of transfer or detail within the
election period as fixed by the COMELEC
b. Transfer or detail was made without
prior approval of the COMELEC

Preferential Disposition of Election Offenses


Investigation and prosecution of election
offenses shall be given priority by
COMELEC.
Investigating officer shall resolve the
case w/in 5 days from submission.
Courts shall give preference to election
offenses over all other cases.
o Exception: writ of HC
Cases shall be decided w/in 30 days
from submission.
Prescription for election offenses
o 5 years from date of commission
GENERAL PRINCIPLES
Administrative Law - Branch of public law
which:
Fixes the organization
Determines
the
competence
of
administrative authorities
Indicates to the individual remedies for
the violation of his rights.

Good Faith is not a defense


o Generally, mala prohibita
o Proof of criminal intent is not necessary
o Good faith, ignorance, or lack of malice
is not a defense
Jurisdiction over Election Offenses
Investigation
and
prosecution
COMELEC has exclusive jurisdiction.

Kinds
1. Statutes
2. Rules, regulations or orders
3. Determinations, decisions and orders
4. Body of doctrines and decisions

Administration
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Nachura Notes Constitutional Law

1. as a Function the execution, in nonjudicial matters, of the law or will of the


State as expressed by competent authority
2. as an Organization group or aggregate
of persons in whose hand the reins of
government are for the time being.

Powers of Administrative Bodies


1. Quasi-legislative or rule-making power
2. Quasi-judicial or adjudicatory
3. Determinative
Quasi-Legislative Power
Exercise of delegated legislative power
Involves no discretion as to what the law
shall be
Fix the details in the execution or
enforcement of a policy
Rules and regulations issued by
administrative authorities pursuant to
powers delegated to them have the force and
effect of law
o They are binding on all persons subject
to them
o Courts will take judicial notice
Letters of Instructions and Eos are
presidential issuances; one may repeal or
alter, modify or amend the other, depending
on which comes later.
The function of promulgating rules and
regulations may be legitimately exercised
only for the purpose of carrying out the
provisions of the law into effect.
Administrative
regulations
cannot
extend the law or amend a legislative
enactment.
Administrative regulations must be in
harmony with the provisions of law. It must
not override, but must remain consistent
with the law they seek to apply and
implement.
Administrative agency has no discretion
whether or not to implement a law. Its duty
is to enforce the law.
Administrative order is an ordinance
issued by the President which relates to
specific aspects in the administrative
operation of Government.

Kinds
1. Internal legal side of public
administration
2. External deals with problems of
government regulation
Administrative Bodies or Agencies
- Organ of government which affects the
rights of private parties either through
adjudication or rule-making.
- Creation
1. constitutional provision
2. legislative enactment
3. authority of law
- Criterion
primarily regulatory
on its rule-making authority it is
administrative when it does not have
discretion to determine what the law shall be
but merely prescribes details for the
enforcement of the law.
- Types
1. offering some gratuity, grant or special
privilege
2. carry on certain of the actual business of
the government
3. performing some business service for the
public
4. regulate business affected with public
interest
5. regulate
private
business
and
individuals, pursuant to police power
6. adjust individual controversies because
of strong social policy involved
7. make the government a private party
II. POWER
BODIES

OF

Kinds of Administrative Rules or


Regulations
1. Supplementary or Detailed Legislation

ADMINSITRATIVE

124

Nachura Notes Constitutional Law

Necessity for Notice and Hearing


NO constitutional requirement for a
hearing:
1. promulgation of a general regulation
2. rule is procedural
3. merely legal opinions
4. substantive rules where the class to be
affected is large and the questions to be
resolved involve the use of discretion
committed to the rule-making body
Hearing Requirement:
1. subordinate legislation, designed to
implement a law by providing details
2. substantially adds to or increase the
burden of those concerned
3. exercise of quasi-legislative authority

Fix the details in the execution and


enforcement of a policy set out in the law.
2. Interpretative Legislation
Construe or interpret the provisions of a
statute to be enforced
Binding on all concerned until they are
changed
Effect of law and are entitled to respect
Have in their favor presumption of
legality
Erroneous application of the law by
public officers does not bar subsequent
correct application of the law
3. Contingent Legislation
Made on the existence of certain facts or
things upon which the enforcement of law
depends.

Function of Prescribing Rates by an


Administrative Agency may either be:
Legislative Function: prior notice and
hearing is not a requirement
Where the rules and rates are meant to
apply to ALL enterprises of a given kind
throughout the country, they may partake of
a legislative character
Adjudicative Function: prior notice and
hearing are essential to the validity
Where the rules and rates are meant to
apply exclusively to a particular party, then
its function is quasi-judicial in character

Requisites for Validity


1. Issued under authority of law
2. Within the scope and purview of the law
3. Reasonable
4. Publication in the OG or in a newspaper
of general circulation
Interpretative rules and regulations/mere
internal in nature/ letters of instructions
concerning the rules and guidelines to be
followed by their subordinates in the
performance of their duties may simply be
POSTED in CONSPICUOUS PLACES in
the AGENCY.
DOLE Department Order and POEA
Memorandum Circulars proper publication
+ filing in the Office of the National
Administrative Register (Article 5 of LC)

Where hearing is indispensable, it does


not preclude the Board from ordering, exparte, a provisional increase subject to its
final disposition of whether or not to make it
permanent, to reduce or increase it further or
to deny the application. (Maceda vs. Energy
Regulatory Board)

Administrative Rules with Penal Sanctions


(additional requisites)
1. law itself must declare as punishable the
violation of the administrative rule or
regulation
2. law should define or fix the penalty for
the violation of the administrative rule or
regulation

Determinative Powers
1. Directing
Power of assessment of BIR and
Customs
2. Enabling
Permit or to allow something which the
law undertakes to regulate
125

Nachura Notes Constitutional Law

3. Dispensing
To exempt from a general prohibition
OR
Relieve individual or corporation from
an affirmative duty
4. Examining
Investigatory power
1. production of books, papers, etc.
2. attendance of witnesses
3. compelling their testimony
Power to compel attendance of witnesses
not inherent in administrative body
But an administrative officer authorized
to take testimony or evidence is deemed
authorized to administer oath, summon
witnesses, require production of documents,
etc.
Power to punish contempt must be
expressly granted to the administrative
body; when granted, may be exercised only
when administrative body is actually
performing quasi-judicial functions
5. Summary
Power to apply compulsion or force
against persons or property to effectuate a
legal purpose without a judicial warrant to
authorize such action

7. decision must be rendered in such a


manner that the parties to the controversy
can know the various issues involved and
the reasons for the decision rendered
- In forfeiture proceeding, where the
owner of the allegedly prohibited article is
known, mere posting of the notice of hearing
in the Bulletin Board does not constitute
compliance.
- Due process demands that the person be
duly informed of the charges against him.
He cannot be convicted of an offense with
which he was not charged.
Party be afforded reasonable opportunity
to be heard and to submit any evidence he
may have in support of the defense.
In administrative proceedings, it means
the opportunity yto explain ones side or
opportunity to seek a reconsideration of the
action or ruling complained of; a formal or
trial-type hearing is not, at all times,
necessary.
Requirement of notice and hearing in
termination cases does not connote full
adversarial
proceedings,
as
actual
adversarial proceedings become necessary
only for clarification or when there is a need
to propound searching questions to
witnesses who give vague testimonies.
Procedural right which employee must
ask for since it is not an inherent right.
Summary proceedings may be conducted
- Administrative due process dies not
necessarily require the assistance of counsel.
- In a request for extradition, the
prospective extradite does not face a clear
and present danger of loss of property or
employment, but of liberty itself.
He is entitled to the minimum
requirements of notice and opportunity to be
heard.
- The standard of due process that must be
met in administrative tribunals allows a
certain latitude as long as the element of
fairness is not ignored; even in the absence
of previous notice, there is no denial of due

Quasi-Judicial or Adjudicatory Powers


- Proceedings partake of the character of
judicial proceedings
- Administrative due process
1. right to hearing
2. tribunal
must consider evidence
presented
3. decision must have something to support
itself
4. evidence must be substantial
5. decision must be based on the evidence
adduced at the hearing or at least contained
in the record and disclosed to the parties
6. the Board or Judges must act on its or
independence consideration of the facts and
the law of the case, and not simply accept
the views of a subordinate in arriving at a
decision
126

Nachura Notes Constitutional Law

process as long as the parties are given the


opportunity to be heard.
- Administrative due process:
1. opportunity to be heard
2. opportunity to seek reconsideration
3. opportunity to explain ones side
- Substantial evidence: such relevant
evidence as a reasonable mind might accept
as adequate to support a conclusion which is
the quantum of proof necessary to prove a
change in an administrative case
- To be heard does not mean only verbal
agreements in court, one may also be heard
through pleadings.

incriminates him of an offense other than


that which is charged is asked.
Power to Punish Contempt is Inherently
Judicial
1. conferred by law and
2. administrative body is engaged in
performance of its quasi-judicial powers
Administrative Decisions not Part of the
Legal System
no vested right
could not place government in estoppel
Administrative Appeal and Review
1. higher or superior administrative body
2. President/ Department Secretaries by
virtue of the power of Control
3. appellate administrative agency

Administrative
Determinations
where
Notice and Hearing are NOT necessary for
due process
1. grant of provisional authority for
increased rates or to engage in a particular
line of business
2. summary proceedings of distraint and
levy upon the property of a delinquent
taxpayer
3. cancellation of passport, no abuse of
discretion
4. summary abatement of a nuisance per se
which affects the immediate safety of
persons/property
5. preventive suspension of a public
officer/employee pending investigation of
administrative charges

Doctrine of res judicata


Decisions and orders of administrative
agencies have upon their finality, the force
and effect of a final judgment within the
purview of the doctrine of res judicata.
Conclusive upon the rights of the
affected parties as though the same had been
rendered by a court of general jurisdiction.
Forbids the reopening of a matter once
determined by competent authority acting
within their exclusive jurisdiction.
Applies to adversary administrative
proceeding
Does NOT apply in administrative
adjudication relative to citizenship
Exception: Zita Ngo Burca vs. Republic
1. question of citizenship is resolved by a
court or an administrative body as a material
issue in the controversy after a full-blown
hearing
2. active participation of the SolGen
3. finding made by the administrative body
on the citizenship issue is affirmed by the
SC

Right Against Self-Incrimination


Administrative charge of unexplained
wealth which may result in forfeiture of the
property
Medical practitioner where proceeding
could possibly result in the loss of his
privilege to practice medicine
Right may be invoked at the time he is
called as a witness
If he voluntarily takes the witness stand,
he can be cross-examined, but he may still
invoke the right at the time the question
which calls for an answer which

127

Nachura Notes Constitutional Law

- LLDA: regulatory and quasi-judicial


power in respect to pollution cases and
matters affecting the construction of illegal
fishpens, fish cages and other aquastructures in Laguna de Bay; may issue
cease and desist orders
- DECS Regional Director: return to work
order; administrative charges; constitute an
investigating panel
- Housing and Land Use Regulatory
Board (HLURB): unsound real estate
business practices
- Department of Energy: electric power
- Home
Insurance
Guarantee
Corporation(HIGC): disputes involving
homeowners association
III.
EXHAUSTION
ADMINISTRATIVE REMEDIES

Constitutionality/validity of a rule or
regulation in the performance of quasilegislative function regular courts have
jurisdiction
Corollary Principle
1. Doctrine of Prior Resort/ Doctrine of
Primary Administrative Jurisdiction
No Where there is competence or
jurisdiction vested upon an administrative
body to act upon a matter, no resort to the
courts may be made before such
administrative body shall have acted upon
the matter.
Conversion of subdivision lots
HLURB
Enforcement of forestry laws DENR
Issuing license to radio stations NTC
Disputes arising from construction
contracts Construction Industry Arbitrary
Commission
Agricultural lands under the coverage of
CARP DAR
Effluents of a particular industrial
establishment Pollution Adjudication
Board

OF

Doctrine
- Whenever there is an available
administrative remedy provided by law, no
judicial recourse can be made until all such
remedies have been availed of and
exhausted.
Reasons
1. if relief is first sought from a superior
administrative agency, resort to courts may
be unnecessary
2. administrative agency should be given a
chance to correct its error
3. principles of comity and convenience
4. judicial review of administrative
decisions is usually made through special
civil actins, which will not normally prosper
if there is another plain, speedy and
adequate remedy in the ordinary course of
law

2. Doctrine of Finality of Administrative


Action
No resort to the courts will be allowed
unless the administrative action has been
completed and there is nothing left to be
done in the administrative structure.
A party aggrieved must not only initiate
the prescribed administrative proceeding,
but must pursue it to its appropriate
conclusion
before
seeking
judicial
intervention.

Only decision of administrative agencies


made in the exercise of QUASI-JUDICIAL
and ADJUDICATORY POWERS are
subject to the rule on exhaustion.

Effect of Failure to Exhaust Administrative


Remedies
- Jurisdiction of court is NOT affected
- Complainant is deprived of a CAUSE
OF ACTION which is a ground for MTD
- If no MTD is filed, deemed a waiver

128

Nachura Notes Constitutional Law

General Principles
underlying power in the Courts to
scrutinize the acts of administrative agencies
on questions of law and jurisdiction
although no right of review is given by
statute.
Keep administrative agencies within its
jurisdiction.
Protect substantial rights of parties
affected by the decisions.
Part of system of checks and balances
which restricts the separation of power and
forestalls arbitrary and unjust adjudication.

Exceptions
1. Doctrine of Qualified Political Agency
(alter ego doctrine)
2. Administrative remedy is fruitless
3. Estoppel on the part of the
Administrative Agency
4. Issue involved is purely a legal
question
5. Administrative action is patently illegal
6. Unreasonable delay or official inaction
7. Irreparable injury or threat, unless
judicial recourse is immediately made
8. Land cases, where subject matter is
private land
9. Law does not make exhaustion a
condition precedent to judicial recourse
10. Observance of the doctrine will result in
the nullification of the claim
11. Special reasons or circumstances
demanding immediate court action
12. Due process of law is clearly violated
13. Rules does not provide a plain, speedy
and adequate remedy
IV.
JUDICIAL
REVIEW
ADMINISTRATIVE DECISIONS

Methods of Obtaining Judicial Review


1. Statutory or Non-Statutory
Statutory available pursuant to
statutory provision
Non-statutory no express statute
granting review, relief is obtained by means
of:
1. common law remedies
2. prerogative writs of certiorari
3. mandamus
4. HC
5. prohibition
6. quo warranto
if statutory methods for judicial review
are available, they are ordinarily exclusive
and the use of non-statutory methods will
not likely be permitted.
2. Direct or Collateral
Direct attempt to question in
subsequent proceedings the administrative
action for lack of jurisdiction, grave abuse of
discretion, etc. (attack on citizenship of an
individual)
Collateral relief from administrative
action sought in a proceeding the primary
purpose of which is some relief other than
the setting aside of the judgment, although
an attack on the judgment may be
incidentally involved.

OF

Rule
Judicial review may be granted or
withheld as Congress chooses
Except: when Constitution requires or
allows it
Judicial review of administrative
decisions cannot be denied the courts when
there is an allegation of grave abuse of
discretion.
Bases for Judicial Review
Unless otherwise provided by this
Constitution or by law
Any decision, order or ruling of each
Commission may be brought to the SC on
certiorari
w/in 30 days from receipt of a copy

What Court has Jurisdiction

129

Nachura Notes Constitutional Law

generally accorded not only respect but at all


times even finality.
Principle that factual findings of
administrative bodies are binding upon the
Court may be sustained only when no issue
of credibility is raised.
It is not for the reviewing court to weigh
the
conflicting
evidence,
determine
credibility of witnesses or otherwise
substitute its judgment for that of the
administrative agency on the sufficiency of
evidence.
Administrative decision in matters with
the executive jurisdiction can only be set
aside on proof of
1. grave abuse of discretion
2. fraud
3. collusion
4. error of law
Courts will not generally interfere with
purely administrative matters unless there is
clear showing of arbitrary, capricious or
grave abuse of discretion amounting to lack
of jurisdiction.

CA have appellate jurisdiction over


judgments or final orders of the CTA and
from awards, judgments, final orders or
resolutions of or authorized by any quasijudicial agency in the exercise of its quasijudicial functions.
Administrative bodies, co-equal with
RTC on terms of rank and stature and
beyond the control of the latter.
Doctrine of Non-Interference by TCs
with co-equal administrative bodies is
intended to ensure judicial stability.
Reviewed by RTC Bureau of
Immigration, Court martial, LLDA
Questions which may be subject of judicial
review
1. Question of Law
2. Question of Fact
Factual findings of administrative
agencies are generally conclusive upon the
courts if supported by substantial evidence,
EXCEPT
1. expressly allowed by statute
2. fraud, imposition or mistake other than
error of judgment
3. error in appreciation of the pleadings and
in the interpretation of the documentary
evidence presented by the parties
3. Mixed Question of Law and Fact
(Brandeis Doctrine of Assimilation of Facts)
What purports to be a finding upon a
question of fact is so involved with and
dependent upon a question of law as to be in
substance and effect a decision on the latter,
the Court will, in order to decide the legal
question, examine the entire record
including the evidence.

Judicial Review is not trial de novo


It is merely an ascertainment of whether
the findings of the administrative agency are
consistent with law, free from fraud or
imposition and supported by evidence.

I. GENERAL PRINCIPLES
Public Office
- Right, authority, duty, created and
conferred by law, by which for a given
period, either fixed by law or enduring at the
pleasure of the creating power, an individual
is invested with some sovereign power of
government to be exercised by him for the
benefit of the people.
- Elements:
1. created by law or by authority of law

Guidelines for the exercise of the power


Findings of fact are respected as long as
they are supported by substantial evidence,
even if not overwhelming or preponderant.
Findings of administrative officials and
agencies who have acquired expertise are

130

Nachura Notes Constitutional Law

2. possess a delegation of a portion of the


sovereign powers of government, to be
exercised for the benefit of the public
3. powers conferred and duties imposed
must be defined by the legislature or by
legislative authority
4. duties must be performed independently
and without control of the superior power
UNLESS they be those of an inferior or
subordinate officer created or authorized by
the legislature and placed under the general
control of a superior officer or body
5. permanence or continuity
- Creation:
1. Constitution
2. statutory enactment
3. authority of law

- Includes any government employee,


agent or body having authority to do the act
or exercise that function.
Main characteristic that distinguishes a
Public Officer creation and conferring of
an office involves a delegation to the
individual of some of the sovereign
functions of government, to be exercised by
him for the benefit of the public.
II.
ELIGIBILITY
QUALIFICATIONS

AND

Qualifications
2 Different Senses:
1. endowments, qualities, attributes which
make an individual eligible for public office
must possess at the time of the
appointment/election and continuously for
as long as the official relationship exists
2. act of entering into the performance of
the functions of public office

Public Officer
- a person who holds office
- Public Officer, as understood under
criminal law
Article 203. any person who, by direct
provision of law, popular election or
appointment by competent authority shall
take part in the performance of public
functions in the Government; or shall
perform in said Government public duties as
am employee, agent, or subordinate official
of any rank or class, shall be deemed to be a
public officer.
RA 3019. includes elective and
appointive
officials
and
employees,
permanent or temporary whether in the
classified, unclassified or exempt services,
receiving compensation, even nominal from
the government.
PB 807. Career and Non-career services
(formerly, classified, unclassified or exempt)

Property qualifications may not be


imposed for the exercise of the right to run
for public office.
Loss of any of the qualifications during
incumbency will be a ground for
termination.
Failure of an officer to perform an act
required by law could affect the officers
title to the given office.
Prolonged failure or refusal to take the
oath of office could result in forfeiture of the
office.
BP 881 the office of any official
ELECTED who fails or refuses to take his
oath of office within 6 months from his
proclamation shall be considered vacant
UNLESS failure is for a cause/s beyond his
control.
Oath of office is a qualifying
requirement for public office.
Until he is qualified, the holdover officer
is the rightful occupant.

Distinguished from Clerk or Employee


- Officer, duties not being of clerical or
manual nature, involves the exercise of
discretion in the performance of the
functions of government.

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Nachura Notes Constitutional Law

Oath of office taken before one who has


no authority to administer oath, is no oath at
all.
Pendency of election protest is not
sufficient basis to enjoin him from assuming
office or from discharging his functions.

Specific Disqualification under the


Constitution
1. President, VP, Cabinet Members and
their deputies and assistants shall not hold
any other office or employment during their
tenure, UNLESS otherwise provided in the
Constitution.
2. No Senator or Member of the HR may
hold any other office or employment in the
Government including GOCC, during his
term without forfeiting his seat. Neither
shall he be appointed to any office which
may have been created or the emoluments
increased during the term for which he was
elected.
3. Members of the SC and of other courts
established by law shall not be designated
to any agency performing quasi-judicial or
administrative functions.
4. No member of the Constitutional
Commission shall during his tenure, hold
any other office or employment. Applies to
Ombudsman and his deputies.
5. Ombudsman and his deputies shall not
be qualified to run for office in the election
immediately succeeding their cessation.
6. Members
of
the
Constitutional
Commission, Ombudsman and deputies
must not have been candidates for any
elective position in the election immediately
preceding their appointments.
7. Members
of
the
Constitutional
Commission, Ombudsman and his deputies
are appointed to a term of 7 years, without
reappointment.
8. Spouse and relatives by consanguinity or
affinity within the 4th civil degree of the
President shall not during his tenure be
appointed:
As members of the Constitutional
Commission
Office of Ombudsman
Secretaries
Undersecretaries
Chairmen/heads

Authority to Prescribe Qualifications


Qualification prescribed by Constitution
generally exclusive unless Constitution
provides otherwise
Public officers created by statute
Congress has plenary powers to prescribe
qualifications, provided:
1. germane to the objectives for which the
office was created
2. qualifications are not too specific as to
fit a particular identifiable person that would
deprive appointing authority of discretion in
the selection of the appointee
Disqualifications
Authority
Legislature has the right to prescribe
disqualifications in the same manner as it
can prescribe qualifications.
Limitation:
do not violate the
Constitution
Disqualification may be because of
unfitness for public office or because the
person is rendered ineligible for the office.
General Disqualifications under the
Constitution
1. No candidate who lost in an election,
shall, within 1 year after such election, be
appointed to any office in the Government.
2. No elective official shall be eligible for
appointment or designation in any capacity
to any public office or position during his
tenure.
3. No appointive official shall hold any
other position in the Government, unless
otherwise allowed by law or the primary
functions of his office.
*ex-officio capacity

132

Nachura Notes Constitutional Law

III. DE FACTO OFFICERS

- Principle of public policy on which de


facto doctrine is based.

- Reputation of being an officer and yet is


not a good officer in point of law.
- Acted as an officer for such length of
time under color of title and under such
circumstances of reputation or acquiescence
by the public and public authorities as to
afford
a
presumption
of
election/appointment and induce people to
submit to or invoke his action.

IV. COMMENCEMENT OF OFFICIAL


RELATIONS
Official relations are commenced:
1) Appointment
2) Election
Appointment
- selection by the authority vested with the
power, of an individual who is to perform
the functions of a given office.

Legal Effect
- Those that affect the public are valid,
binding and with full legal effect.
- For the protection of the public.

Commission
- written evidence of appointment

Elements
1. validly existing public office
2. actual physical possession of said office
3. color of title to the office
a. by reputation/acquiescence
b. known and valid appointment/election
but officer failed to conform to a
requirement imposed by law
c. known appointment or election, void
(though unknown to public) because:
i. ineligibility of officer
ii. want of authority of appointing/electing
authority
iii. irregularity in appointment/election
d. known appointment/election pursuant to
unconstitutional law, before law was
declared unconstitutional.

Designation
- imposition of additional duties
Classification
1) Permanent
- Extended to person possessing the
requisite qualifications
- Security of tenure
2) Temporary
- Acting appointment
- May not possess the requisite
qualifications for eligibility
- Revocable at will, without necessity of
just cause or a valid investigation
- Acquisition of the appropriate civil
service eligibility by a temporary appointee
will not ipso facto convert the temporary
appointment into a permanent one; new
appointment is necessary
- Appointment to a position in the Career
Service of the Civil Service does not
necessarily mean that the appointment is a
permanent one depend on the nature of
the appointment which in turn depends on
the appointees eligibility or lack of it.
- Acceptance by petitioner of a temporary
appointment resulted in the termination of

Entitlement of Salaries
- GR: rightful incumbent of a public office
may recover from an officer de facto the
salary received by the latter during the time
of his wrongful tenure, even though he
entered into the office in good faith and
under color of title.
- Where there is NO DE JURE officer, the
officer de facto who in good faith has had
possession of the office and has discharged
the duties is legally entitled to emoluments.

133

Nachura Notes Constitutional Law

official relationship with his former


permanent position.
- Temporary appointment shall not exceed
12 months.
- Mere designation does not confer
security of tenure person designated
occupies the position only in an acting
capacity.
- Appointment is subject to conditions,
appointment is not permanent.
- Appointee cannot claim a complete
appointment as long as the re-evaluation
incidental to the re-organization is still
pending.
- unless terminated sooner even if
co-terminous with the project, it is
nevertheless subject to the appointing
authority.
- Where temporary appointment is for a
FIXED period, appointment may be revoked
only at the expiration of the period OR if
before, it must be for a valid and just cause.
3) Regular
- One made by the President while
Congress is in session after the nomination
is confirmed by the Commission on
Appointments and continues until the end of
the term.

3) Officers of the AFP, from rank of


colonel or naval captain
4) Officers whose appointments are vested
in the President under the Constitution.
Steps in Appointing Process
For REGULAR Appointments
1) Nomination by President
2) Confirmation by COA
3) Issuance of the Commission
4) Acceptance by the appointee
1)
2)
3)
4)

AD-INTERIM Appointment
Nomination by President
Issuance of the Commission
Acceptance by the appointee
Confirmation by COA

DO NOT require Confirmation


1) Appointment by Appointing Authority
2) Issuance of the Commission
3) Acceptance by the Appointee
- A person cannot be compelled to accept
an appointment EXCEPT when the
appointment is made to an office required in
defense of the State/
- Where appointment is to the CAREER
SERVICE of the CIVIL SERVICE,
attestation by the Civil Service Commission
is required. Otherwise, not deemed
complete. Appointment not submitted to the
CSC w/in 30 days from the issuance (date
appearing on the face of the appointment)
shall be ineffective.
- CSC is authorized to check of the
appointee possesses the qualifications and
appropriate eligibility; if he does,
appointment must be approved; of not, it is
disapproved.
- Appointment is complete when the last
act required of the appointing power is
performed; until the process is completed,
appointee can claim no vested right in the
officer nor claim security of tenure.

4) Ad-interim
- Made while Congress is not in session,
before confirmation by the Commission on
Appointments, is immediately effective
- Ceases to be valid if disapproved or
bypassed by COA upon next adjournment of
Congress
- Permanent appointment
- That it is subject to confirmation, does
not alter its permanent character.
- Regular and Ad-interim Classification
may be used only when referring to the
following:
1) Heads of Executive Department;
2) Ambassadors and other Publi Ministers
and Consuls

134

Nachura Notes Constitutional Law

- Appointment to be valid, position must


be vacant.

Cases involving personnel action


Employment status and qualification
standard
Recall an appointment initially approved
when issued with disregard to Civil
Service Laws, rules and regulations
Approving and reviewing appointments
to determine their compliance with the Civil
Service Law
On its own, does not have the authority
to terminate employment or drop members
from the roll

Discretion of Appointing Authority


Discretionary power and must be
performed by the officer in whom it is
vested.
Only condition, appointee must possess
the minimum qualifications requirements
prescribed by law.
Appointing authority is in the best
position to determine who among the
prospective appointees can effectively
discharge the functions of the position.
Final choice of appointing authority
should be respected and left undisturbed.
Commission may not and should not
substitute its judgment for that of the
appointing authority.
Civil Service Law grants career service
officers preference in promotion under the
next-in-rank rule, it is not mandatory,
appointing authority should be allowed the
choice of men of his confidence provided
they are qualified and eligible.
Provincial, city prosecutor and their
assistants appointed by President upon
recommendation of Secretary of Justice
(mere advise).
Discretion of appointing authority
choice of the person WHO is to be
appointed, NATURE and CHARACTER of
appointment.

Appointments to the Civil Service


Scope: ALL branches, subdivision,
instrumentalities and agencies of the
Government, including GOCC with original
charter.
Classes of Service
1. Career Service
c. Description
- Entrance based on merit and fitness, as
far as practicable by competitive
examinations
- Or based on highly and technical
qualifications
- Opportunity for advancement to higher
career positions
- Security of tenure
d. Includes:
1) Open Career Service
- Prior qualification in an appropriate
examination is required
2) Closed Career Service
- Scientific or highly technical
3) Career Executive Service
- Undersecretaries, bureau directors, etc.
4) Positions in the Armed Forces of the
Philippines
- Governed by a different merit system
5) Career Officers
- Other than those belonging to Career
Executive Service, appointed by President,
e.g. foreign service
6) Personnel of GOCC w/ original charters

Judicial Review of Appointments


Appointment generally a political
question; as long as appointee possess
minimum qualifications as prescribed by
law for the position.
Action for usurpation of office Who
claims a valid title to the office.
Jurisdiction
of
the
Commission
Disciplinary cases

Civil

Service

135

Nachura Notes Constitutional Law

7) Permanent laborers (skilled, semi-skilled


or unskilled)
Career Executive Service
2 requirements to attain security of
tenure
i.
Career executive service eligibility
ii.
Appointment to the appropriate career
executive service rank
Security of tenure pertains only to rank
and not to the office or position

- Under Administrative Code, the CSC is


expressly empowered to declare positions in
the CS as primarily confidential.
- Enumeration in the Civil Service decree,
which defined the non-career service is not
an exclusive list. Commission can
supplement this list.
- Coterminous status may be classified as:
o co-terminous with project duration of
particular project for which employment
was made.
o co-terminous with appointing authority
tenure of appointing authority or at his
pleasure
o co-terminous with incumbent coexistent with appointee, such that after the
latters
resignation,
separation
or
termination of the services, the position shall
be deemed automatically abolished.
o co-terminous with a specific period for
a specific period, upon expiration, position
is deemed abolished.

3. Non-Career Service
a. Description
- Entrance on bases other than those of the
usual tests utilized for the career service
- Tenure
5) limited to a period specified by law or
6) which is co-terminous with that of the
appointing authority or
7) subject of his pleasure or
8) which is limited to the duration of a
particular project for which purpose the
employment was made.
b. Includes:
1) Elective
officials,
personal
and
confidential staff
2) Department Heads and officials of
Cabinet rank who holds office at the
pleasure of the President, personal and
confidential staff
3) Chairmen
and
members
of
commissions/boards w/ fixed terms of
office, personal and confidential staff
4) Contractual personnel/ those whose
employment in government is in accordance
with a special contract to undertake a
specific work or job requiring special or
technical skills not available in employing
agency, to be accomplished within a period
not exceeding 1 year, under his own
responsibility, with minimum direction and
supervision
5) Emergency and seasonal personnel

Requisites
1. made according to merit and fitness
2. competitive examination
Exceptions:
1. policy determining
2. primarily confidential or
3. highly technical
- In a department, appointing power is
vested
in
the
DEPARTMENT
SECRETARY, although it may be delegated
to the REGIONAL DIRECTOR, subject to
approval of the Department Secretary.
- Principles
1) Classification of a particular position as
policy-determining, primarily confidential or
highly technical amounts to no more than an
executive or legislative declaration that is
not conclusive upon the courts, the true test
being the nature of the position

136

Nachura Notes Constitutional Law

2) The exemption provided pertains only to


exemption from competitive examination to
determine merit and fitness to enter the civil
service
3) Exempt from competitive examination to
determine merit and fitness:
a. Policy-determining
Officer lays down principal or
fundamental guidelines or rules
E.g. department head
b. Primarily confidential
Not only confidence in the aptitude if the
appointee for the duties of the office but
primarily close intimacy which ensures
freedom
of
intercourse
without
embarrassment or freedom from misgivings
or betrayal on confidential matters of state
NATURE of the position which
determined whether a position is primarily
confidential, policy-determining or highly
technical
proximity rule can be considered as
confidential employee if the predominant
reason why he was chosen by the appointing
authority was the latters belief that he can
share a close intimate relationship with the
occupant which ensures freedom of
discussion without fear of embarrassment or
misgivings of possible betrayals of personal
trust or confidential matters of the State.
Where the position occupied is remote
from that of the appointing authority, the
element of trust between them is no longer
predominant, and cannot be classified as
primarily confidential.
c. Highly technical requires possession of
technical skill in a superior degree.
Legal counsel of PNB
City Legal Officer
City Attorney
Security Council and Security Guards of
the City Vice Mayor

2)
3)
4)
5)
6)
7)

Appointment through Certification


Transfer
Reinstatement
Detail
Reassignment
Reemployment

Other Personnel Action

Appointment through Certification


- Issued to a person who has been selected
from a list of qualified persons certified by

Promotion
- Movement from one position to another
with increased duties and responsibilities as
authorized by law
- Usually accompanied by an increase in
pay.
- Next-in-rank Rule
The one who is next in rank is given
preferential consideration
Does not mean that he alone can be
appointed
Appointing authority is required to state
the special reasons for not appointing the
officer next in rank.
- Automatic Reversion Rule
All appointments involved in a chain of
promotions
must
be
submitted
simultaneously for approval by the
Commission. The disapproval of the
appointment of a person proposed to a
higher position invalidates the promotion of
those in the lower positions and
automatically restores them to their former
positions. Affected persons are entitled to
payment of salaries for services rendered at
a rate fixed in their promotional
appointments.
Requisites:
1. series of promotions
2. all promotional appointments are
simultaneously
submitted
to
the
Commission for approval
3. Commission
disapproves
the
appointment of a person to a higher position

1) Promotion
137

Nachura Notes Constitutional Law

the CSC from an appropriate register of


eligibles and who meets the qualifications
prescribed for the position.

1. Sabello vs. DECS considerations of


justice and equity
2. Garcia vs. Chairman, Commission on
Audit person given pardon because he did
not truly commit the offense; the pardon
relives him from all punitive consequences
of his criminal act thereby restoring him to
his clean name, good reputation and
unstained character prior to his finding of
guilt.

Transfer
- Movement from one position to another
which is of equivalent rank, level or salary
without break in service.
- May be imposed as an administrative
penalty.
- Unconsented transfer violates security of
tenure.
- Career Executive Service personnel can
be shifted from one office to another without
violating their right to security of tenure,
because salary and status is based on their
ranks and not on the positions to which they
are assigned.

Detail
- Movement of an employee from one
agency to another without the issuance of an
appointment
- Allowed only for a limited period of
time in the case of employees occupying
professional, technical and scientific
positions
- Temporary in nature

Reinstatement
- Has been permanently appointed in the
career service and who has, through no
delinquency of misconduct, been separated
may be reinstated to a position in the same
level for which he is qualified.
- Acquisition of civil service eligibility is
not the sole factor for the reappointment.
Other factors should be considered:
performance, degree of education, work
experience, training, seniority and enjoys
confidence and trust of the appointing
power.
- Not subject to application for a writ of
mandamus.
- Issuance of new appointment which is
discretionary
- Exercise of discretionary power cannot
be controlled by the courts, as long as
properly exercised
- Forfeited his right to public office
because of conviction of a crime, but was
extended plenary pardon CANNOT by
reason of pardon demand reinstatement as a
matter of right.
- Exception:

Reassignment
- Reassigned from one organizational unit
to another in the same agency
- Not involve reduction in rank, status or
salary
- Management prerogative vested in the
CSC, any department or agency embraced in
Civil Service
- Does not constitute removal without
cause
- Should have definite date and duration.
- Lack of specific duration is tantamount
to floating assignment thus a dimunition in
status or rank.
Reemployment
- Names of persons who have been
appointed permanently to positions in the
career service and who have been
SEPARATED as a result of REDUCTION
in force and/or REORGANIZATION, shall
be entered in a list from which selection for
reemployment shall be made
- Separated not for a cause but as a result
of reorganization separation pay +

138

Nachura Notes Constitutional Law

retirement and other benefits; in lieu of


separation pay, may be considered for
employment (Proclamation No. 3)

GAD amounting to lack or excess of


jurisdiction
Judgment

judicial
functions;
determination of a question of law; only one
way to be right
Discretion, may decide the question
either way and still be right; limited to the
evident purpose of the act

V. POWERS AND DUTIES OF PUBLIC


OFFICERS
Authority of Public Officers
1. Expressly conferred upon him by the
ACT appointing him
2. Expressly ANNEXED to the office by
LAW
3. Attached to the office by COMMON
LAW as incidents to it
4. Doctrine of Necessary Implication all
powers necessary for the effective exercise
of the express powers

Duties of Public Officer


Constitutional Duties
To be accountable to the people
To
serve
them
with
utmost
responsibility, loyalty and efficiency
To act with patriotism and justice
To lead modest lives
To submit a declaration under oath of his
assets, liabilities and net worth upon
assumption of office and as often as may be
required
To owe the State and Constitution
allegiance at all times
SOLGEN represent government and
its offices EXCEPT criminal cases and civil
cases for damages arising from felony.

Authority can be exercised only during the


term when the public officer, is by law,
invested with the rights and duties of the
office.
Ministerial and Discretionary Powers
1. Ministerial discharge by officer is
imperative and requires neither judgment
nor discretion; exercise of which may be
compelled
2. Discretionary imposed by law upon a
public officer; officer has the right to decide
how and when the duty shall be performed;
mandamus will not lie to compel
performance
Exception: when mandamus will lie:
1. GAD
2. manifest injustice
3. palpable excess of authority equivalent
to a denial of settled rights
4. no other plain, speedy or adequate
remedy

Prohibitions
1. Partisan political activity or taking part
in any election except to vote
Except:
1. those holding political offices
2. cabinet members
2. Additional or double compensation
3. Prohibition against loans
4. Limitation on laborers
Not assigned to clerical duties
5. Detail or reassignment
w/in 3 months before any election
without approval of COMELEC
6. Nepotism
Appointments made in favor of a relative
of the appointing or recommending
authority or of the chief of the bureau or
office or of the person exercising immediate
supervision over him.

writ may issue to compel the exercise of


discretion but not the discretion itself
Courts may review exercise of
discretion, to determine if there has been

139

Nachura Notes Constitutional Law

All appointments.
Relative: those related within the 3rd civil
degree by consanguinity or affinity
Exemption:
1. confidential capacity
2. teachers
3. physicians
4. members of the Armed Forces
* full report of appointment shall be made to
the Commission

regulation or within a reasonable period if


none is fixed

VI. LIABILITY OF PUBLIC OFFICERS

Presidential Immunity from Suit


during tenure of the President
After his tenure, cannot invoke
immunity from suit for civil damages arising
out of acts done by him, while he was
president which were not performed in the
exercise of official duties.
Not prevented from instituting suit.

Liability on Contracts
personally entered
exceeded his authority

without

or

Liability for Tort


personally beyond the scope of his
authority or exceeds power conferred upon
him; ultra vires or where there is bad faith

General Rule on Liability


A public officer is not liable for injuries
sustained by another as a consequence of
official acts done within the scope of his
official authority, except as otherwise
provided by law.
Not civilly liable for acts done in official
capacity UNLESS bad faith, malice,
negligence
Liable for willful or negligent acts done
by him which are contrary to morals, law
public policy and good customs EVEN if he
acted under instructions of his superiors.
Local governments are not exempt from
liabilities for DEATH or INJURY to persons
or DAMAGE to property.

Threefold Liability Rule


Wrongs acts or omissions of a public
officer may give rise to civil, criminal and
administrative liability.
Action
for
each
can
proceed
independently
Dismissal of one does not foreclose
action for others. difference in quantum
of evidence

Statutory Liability
Article 27, CC refuses or neglects
without just cause to perform his official
duty, whereby a person suffers moral or
material loss; without prejudice to
administrative disciplinary sanction
Article 32, CC liability of public
officer for violation of constitutional rights
Article 34, CC liability of peace officer
who fails to respond or give assistance to
persons in danger of injury to life or
property
w/o just cause. Neglects to perform a
duty within a period fixed by law or

Liability of Minsiterial Officers


1. Nonfeasance neglect or refusal to
perform an act which is the officers legal
obligation
2. Misfeasance failure to exercise that
degree of care, skill and diligence in the
performance of official duty
3. Malfeasance doing, through ignorance,
inattention or malice of an act which he had
no legal right to perform.
Command Responsibility
Head of a department or a superior
officer shall not be civilly liable for the

140

Nachura Notes Constitutional Law

Right of de facto officer to compensation


when there is no de jure and de facto
officer, who in good faith has possession of
the office and has discharged the duties.
Salary cannot be garnished nor subject to
attachment or order of execution before
being paid to him to answer for the payment
of his debts.
Public policy also prohibits the
assignment of unearned salaries
Agreements affecting compensation are
void as contrary to public policy.
Compensation, allowances and other
benefits granted without the approval of the
DBM are unauthorized and irregular.
Constitutional
provisions
affecting
salaries:
1. no increase in salaries of members of
Congress shall take effect until after the
expiration of the full term of the Members of
the Senate and HofRep who approved he
increase.
2. Salaries of President and VP shall be
fixed by law and sjall not be decreased
during their tenure. No increase, until after
expiration of the incumbent during which
increase was approved.
3. Salary of members of the Judiciary shall
not be decreased during their continuance in
office; income tax is not unconstitutional
dimunition.
4. Additional,
double
or
indirect
compensation are prohibited.
5. Standardization of compensation.
6. Separation pay to career Civil Service
employees who are separated from service
not for cause but by reason of
reorganization.

wrongful acts, omission of duty, negligence


or misfeasance of his subordinates,
UNLESS he has actually authorized by
written order the specific act or misconduct.
VII. RIGHTS OF PUBLIC OFFICERS
1. Right to Office
2. Right to Salary
3. Right to Preference in Promotion
4. Right to Vacation and Sick Leave
5. Right to Maternity Leave
6. Right to Retirement Pay
7. Right to reimbursement for expenses
incurred in due performance of duty
8. Right to be indemnified against any
liability
9. Right to longevity pay
Right to Office
Just and legal claim to exercise the
powers and the responsibilities of the public
office.
Term vs. Tenure
Term: period during which the officer
may claim to hold the office as a matter of
right.
Tenure: period during which the officer
actually holds office.
Right to Salary
Salary personal compensation to be
paid to the public officer for his services
Generally a fixed or periodical payment
depending on the time and not on the
amount of the services he may render.
Distinguished from wages:
Salaries are given to officers of higher
degree of employment than those given
wages.
Salary is compensation per annum.
Wages are paid day by day or week by
week.
Basis:
1. legal title to the office
2. law attaches compensation to the office

Preventive Suspension and the Right to


Salary
1. Preventive
Suspension
pending
investigation
2. Preventive Suspension pending appeal

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Nachura Notes Constitutional Law

If the penalty imposed is suspension or


dismissal and after review, he is exonerated
no right to compensation during
preventive suspension even pending
investigation
It is not enough that he is exonerated; it
must be shown that suspension is unjustified
Justified if charged with:
1. dishonesty
2. oppression
3. grave misconduct
4. neglect of duty
Gloria vs. Court if Appeals entitled
not only to reinstatement but also to back
wages for the period of preventive
suspension pending appeal.
Because preventive suspension pending
appeal is actually PUNITIVE.
Award should not exceed equivalent of 5
years pay at the rate last received before
suspension was imposed.
If his conviction is affirmed, the period
of his suspension becomes part of the final
penalty of suspension.

LGUs
may
provide
additional
allowances and benefits to national
government officials assigned or stationed in
their municipality or city.
Not without limitations.
Right to Preference in Promotion
Right does not prevail over discretion of
appointing authority.
Right to Vacation and Sick Leave
Sec 81, RA 7160 (LGC) Elective local
officials shall be entitled to the same leave
privileges as those enjoyed by appointive
local officials, including the cumulation and
commutation.
Entitled to commutation of all leave
credits without limitation and regardless of
the period when the credits were earned,
provided the claimant was in the service as
of January 9, 1986.
Government employees are not required
to work on Saturdays, Sundays and holidays.
Right to Maternity Leave

Right to back salaries of illegally dismissed


employees
Illegally
dismissed
government
employees who is later ordered reinstated is
entitled to back wages and other monetary
benefits from the time of his illegal
dismissal up to his reinstatement.
no work, no pay not applicable
Note: Balitaosan vs. Secretary, DECS:
reinstatement was not the result of
exoneration but an ACT OF LIBERALITY
of the CA, the claim for back wages was not
allowed. Thus the general rule that a public
official is not entitled to compensation if he
has not rendered any service was applied.
No right to back wages if NOT
EXONERATED
and
NOT
UNJUSTIFIABLY SUSPENDED

Right to Retirement Pay


Retirement laws are liberally construed
in favor of the retiree.
Money value of the terminal leave of a
retiring government official shall be
computed at the retirees highest monthly
pay.
Judiciary extension if satisfied that the
career was marked by competence, integrity
and dedication to the public service.
A reserved officer who successfully
rendered a total of 10 years continuous
active commissioned military service shall
not be reverted to inactive service except for
cause or upon his own request. Covered by
compulsory membership in the GSIS.
Totalization of service credits is only
resorted to when the retiree does not qualify
for benefits in either or both of the systems.

Right to additional allowance and benefits

142

Nachura Notes Constitutional Law

Right to reimbursement for expenses


incurred in due performance of duty

provision person appointed or elected for


vacancy shall hold the same only for the
unexpired portion
5. only the duration is fixed, no time is
fixed for beginning or end person
selected to fill the vacancy may serve the
full term and not merely the unexpired
balance of the prior incumbents term
6. office is created/officer appointed for the
purpose of performing a single act or
accomplishment of a given result office
terminates and the authority ceases with the
accomplishment of the purposes which
called it into being.
Principle of Hold-Over: public officer is
entitled to hold his office until his successor
shall have been duly chosen and shall have
qualified. Purpose is to prevent hiatus in
public service.
Legislative intent of not allowing holdover must be clearly expressed or at least
implied in the legislative enactment,
otherwise, it is reasonable to assume that the
law-making body favors the same.
Article 237, RPC which penalizes public
officer who shall continue to exercise the
duties and powers of the office beyond the
period provided by law.
During this period, de jure officer
Where the law fixes a specific sate for
the end of the term implied prohibition
against hold-over

Right to be indemnified against any liability


which they may incur in the bona fide
discharge of their duties.
Right to longevity pay
VIII. TERMINATION OF OFFICIAL
RELATIONSHIP
Modes of Terminating Official Relationship
1. Expiration of term or tenure
2. Reaching the age limit
3. Resignation
4. Recall
5. Removal
6. Abandonment
7. Acceptance of an Incompatible Office
8. Abolition of Office
9. Prescription of the Right to Office
10. Impeachment
11. Death
12. Failure to Assume Elective Office w/in 6
months from proclamation
13. Conviction of a Crime
14. Filing of Certificate of Candidacy
Expiration of term or tenure
Courtesy resignation during the EDSA
Revolution expiration of term; entitled to
retirement benefits
Termination presupposes an overt act
committed by a superior officer
Commencement of Term of Office
1. statute fixes a period upon
qualification
2. no time is fixed by law date of
appointment/election
3. law fixing the term is ambiguous one
that fixes the term at the shortest period
should be followed
4. both duration of the term of office and
the time of its commencement/termination
are fixed by constitutional or statutory

Reaching the age limit


Compulsory Retirement Age
70 for members of judiciary
65 for other government officers or
employees
Special Retirement Laws: RA 1616
allows optional retirement after an officer
has rendered a minimum number of years of
government service, when availed of by the
public officer, will result in the termination
of official relationship through reaching the
age limit or retirement.

143

Nachura Notes Constitutional Law

If the law is silent on who shall accept:


1. appointive officer resigns appointing
authority
2. elective officer resigns officer
authorized by law to call an election in order
to fill the vacancy
President and VP Congress
Members of Congress respective
Houses

Resignation
Act of giving up or the act of a public
officer by which he declines his office and
renounces the further right to use it.
Intention to surrender, renounce, and
relinquish the office and the acceptance by
competent and lawful authority
Voluntariness when procured by fraud,
may be invalidated
Courtesy resignation lacks the element
of voluntariness and therefore is not a valid
resignation.
Need for Acceptance not complete
until accepted by competent authority
Article 238, RPC penalizes any public
officer who, before the acceptance of his
resignation, abandons his office to the
detriment of the public service.
If the public officer is mandated by law
to hold-over, the resignation, even if
accepted, will not be effective until after
appointment/election of his successor.
Accepting Authority RA 7160, officers
authorized to accept resignation:
1. President governor, vice-governor,
mayor and vice-mayor f highly urbanized
cities and independent component cities
2. Governor municipal mayors and vicemayors, city mayors and vice-mayors of
component cities
3. Sanggunian sanggunian members
4. City or municipal mayor barangay
officials
Resignation deemed accepted if not
acted upon w/in 15 days from receipt
Resignation by Sanggunian members
shall be deemed accepted upon:
1. presentation before an open session of
the sanggunian concerned
2. duly entered in its record
3. EXCEPT where sanggunian members
are subject to recall elections or to cases
where existing laws prescribe the manner of
acting upon such resignation

Effective Date of Resignation


Date specified in the tender
No date specified public officer receives
notice of the acceptance NOT the date of the
letter or notice of acceptance
Recall
Termination of official relationship of an
elective official for loss of confidence prior
to the expiration of his term through the will
of the electorate.
By Whom: registered voters of a LGU to
which such local government official
belongs
Initiation of the Recall Process:
registered voters of the LGU
Procedure for Initiating Recall
1. initiated upon petition by at least 25% of
the total number of registered voters in the
LGU
2. written petition
duly signed before the election
registrar/representative
in the presence of a representative of the
petitioner
representative of the official
in a public place, in the province, city,
municipality or barangay
filed with the COMELEC through its
office in the LGU concerned
3. COMELEC shall cause the publication
of the petition
In a public and conspicuous place
Period not less than 10 days nor more
than 20 days
144

Nachura Notes Constitutional Law

recalled is actually contested and to be filled


by the electorate

Purpose of verifying the authenticity and


genuineness of the petition and required
percentage of voters
4. Lapse of the period, COMELEC or its
duly authorized representative, shall
announce the acceptance of candidates to the
position and prepare list of candidates,
including the name of the official sought to
be recalled.
Election on Recall

Removal
Constitutional Guarantee of Security of
Tenure not removed or suspended except
for causes provided by law
Career service officers and employees
causes enumerated in law and in accordance
with procedure prescribed
Removal not for just cause or noncompliance with prescribed procedures
reversible, reinstatement with back salaries
and without loss of seniority rights
Demotion is tantamount to unlawful
removal is NO CAUSE is shown or it is
NOT PART OF DISCIPLINARY ACTION
Unconsented transfer resulting in
demotion in rank or salary is tantamount to
removal without just cause.
A transfer that results in promotion or
demotion, advancement or reduction or a
transfer that aims to lure the employee away
from his permanent position, cannot be done
without the employees consent, for that
would constitute removal from office.
No permanent transfer can take place
unless the officer or employee is first
removed from the position held, and then
appointed to another position.
Some cases on Grounds for Disciplinary
Action:
1. Dishonesty concealment or distortion
of truth in a matter of fact relevant to ones
office or connected with the performance of
his duty; e.g. use of fake or spurious civil
service eligibility
2. Conduct prejudicial to the best interest
of the service
3. Misconduct transgression of some
established and definite rule of action;
wrongful intention
Administrative Code of 1987: 1)
Unsatisfactory conduct and 2) Want of
capacity

Upon filing of a valid petition,


COMELEC shall set date for the election on
recall
Not later than 30 days after the filing of
the resolution/petition in the case of
barangay/city/municipal officials
Not later than 45 days in the case of
provincial officials
Officials sought to be recalled,
automatically considered as registered
candidate.
Effectivity of Recall
Recall of an elective official shall be
effective upon the election an proclamation
of a successor.
If the official sought to be recalled
receives the highest number of votes
confidence in him is affirmed and he shall
continue in office
Prohibition from Resignation
Limitation on Recall
1. any elective official may be subject of a
recall election once during his term of office
for lack of confidence
2. no recall shall take place within one year
from the date of the officials assumption to
office or one year immediately preceding a
regular local election
Sangguiniang Kabataan election is not a
regular election;
Not barred by barangay election
Approaching local election must be one
where the position of the official to be

145

Nachura Notes Constitutional Law

disciplinary action against officers and


employees under their jurisdiction.
Decision final in case the penalty
imposed is suspension of not more than 30
days or fine in an amount not exceeding 30
days salary.
Other cases, decision shall be initially
appealed to the department head and finally
to the Civil Service Commission and
pending appeal, shall be executory EXCEPT
when the penalty is removal, in which case
it shall be executory only after confirmation
by the department head.
Committee to hear administrative charge
against
public
school
teacher

representative of the teachers organization


2. Civil Service Commission has appellate
jurisdiction. Case may be filed directly to it;
it may decide on the case or deputize a
department or agency

Civil Service Law: inefficiency and


incompetence in the performance of official
duties
Poor performance falls within the
concept of inefficiency and incompetence
Inefficiency and incompetence can only
be determined after the passage of sufficient
time, hence, the probationary period of 6
months.
Poltical or non-career members of the
Foreign Service is coterminous with that of
the appointing authority or subject to his
pleasure
Holding primarily confidential positions
continue in office as long as the confidence
in them endures; termination is justified on
the ground of lack of confidence
removal: expiration of term
Holding
temporary
or
acting
appointments may be removed at any
time, without necessity of just cause or a
valid investigation.

Preventive Suspension
The proper disciplining authority may
preventively suspend any subordinate officer
or employee under his authority pending an
investigation if the charge against such
officer or employee involves 1) dishonesty,
2) oppression or grave misconduct or 3)
neglect in the performance of duty or 4) if
there is reason to believe that the respondent
is guilty of charges which would warrant his
removal from the service.
Not a penalty. Enable authorities to
investigate.
If the investigation is not finished and a
decision is not rendered within a period of
90 days, the suspension will be lifted and the
respondent will automatically be reinstated.
If after investigation, he is innocent of
the charges and is exonerated, he should be
reinstated.
Preventive suspension can be ordered
even without a hearing.
Authority to preventively suspend:
exercised concurrently by the Ombudsman
RA 6770: 6 months

Procedure in Administrative Case


1. Administrative case against a public
official shall continue despite withdrawal of
the complaint since they do not involve
purely private matters but are impressed
with public interest by virtue of the public
character of the public office.
2. Substantial proof and not clear and
convincing evidence or proof beyond
reasonable doubt is sufficient.
Satisfied when the employer has
reasonable ground to believe that the
employee is responsible for the misconduct
and his participation renders him unworthy
of trust and confidence demanded by his
position.
Jurisdiction in Disciplinary Cases
1. Heads of ministries, agencies and
instrumentalities, provinces, cities and
municipalities
have
jurisdiction
to
investigate and decide matters involving

146

Nachura Notes Constitutional Law

Court may validly order the preventive


suspension of officer (since removal of
office is within the power of the Courts)

Resignation is formal relinquishment


Abandonment
is
voluntary
relinquishment through non-user
Non-user neglect to use a privilege or
a right or to exercise an easement or an
office
A person holding an office may abandon
such office
(1) Non-user
(2) Acquiescence
Non-performance does not constitute
abandonment when:
(1) Temporary disability
(2) Involuntary failure to perform
Public officer vacates office in deference
to the requirements of a statute which is
afterwards declared unconstitutional, such
surrender will not be deemed abandonment.
Mere delay in qualifying for an office is
not abandonment
But failure to assume office w/in 6
months fro proclamation, without just or
valid cause, shall have the effect of vacating
the office.
Automatically separated if he fails to
return to the service after the expiration of 1year leave of absence without pay.
Absent for at least 30 days without
approved leave are considered on Absence
Without Leave (AWOL) and shall be
dropped from the service after due notice.
Granting or approval of leaves
discretionary on the head and depends upon
the needs of the service
Failure to make courtesy call to ones
superior is not an offense, much less a
ground to terminate employment.

Back salary is not warranted when the


immediate execution of the order of
dismissal is justified.

Appeal
Made within 15 days from receipt of the
decision
UNLESS a petition for reconsideration
is filed, which shall be decided within 15
days
Petition for Reconsideration 3 grounds
only:
(1) New evidence has been discovered
which materially affects the decision
(2) Decision is not supported by evidence on
record
(3) Error of law or irregularities have been
committed which are prejudicial to the
interest f the respondent
From resolution of the CSC, file a
petition for certiorari R65 w/in 30 days from
receipt of copy of the resolution
Summary Dismissal
RA 6654
Removal of Administrative Penalties or
Disabilities
Meritorious
cases,
upon
recommendation of the CSC
President may commute or remove
administrative penalties or disabilities
imposed upon officers or employees in
disciplinary cases
Subject to terms and conditions he may
impose in the interest of the service

Acceptance of an Incompatible Office


Test of Incompatibility
Nature and relation of the two offices to
each other, they ought not to be held by one
person from the contrariety and antagonism
which would result
Acceptance of incompatible office ipso
facto vacates the other. There is no necessity

Abandonment
Voluntary relinquishment of an office by
the holder with the intention of terminating
his possession and control
Species of resignation

147

Nachura Notes Constitutional Law

for any proceeding to declare or complete


the vacation of the first.
Canonizado vs. Aguirre no
incompatibility; though accepted latter, he
continued to pursue legal remedies to
recover the first from which he was ousted
by a law later to be declared
unconstitutional.
Exception: when authorized by law to
accept the other office.

(3) Gross incompetence or inefficiency


(4) Misuse of public office for partisan

political activities
(5) Analogous grounds showing that
incumbent is unfit to remain in office
Reorganization must meet the common
test of good faith.
PD1416: grants the President the
continuing authority to reorganize the
national government, which includes the
power to group consolidate bureaus and
agencies, to abolish offices, to transfer
functions, to classify and create functions,
services and activities and to standardize
salaries and materials.

Abolition of Office
Power of legislature to abolish an office
Congress; even during the term for which
an existing incumbent may have been
elected
Constitutional
offices
cannot
be
abolished
No law shall be passed reorganizing the
Judiciary, when it undermines security of
tenure
Valid abolition of office does not
constitute removal of incumbent
Legal competence if the city council to
create, consolidate and reorganize city
offices and positions wholly supported by
local funds
Requisite for Abolition of Office
(1) Made in good faith
(2) Clear intent to do away with the office
(3) Cannot be implemented in a manner
contrary to law
Reorganization of Government Offices
Constitutional recognition of authority to
reorganize: promotion of simplicity,
economy and efficiency is the usual
standard.
No violation of due process even if no
hearing was conducted in the matter of
reorganization of DBP, as long as employee
was given a chance to present evidence.
Removal of employees pursuant to
guidelines in EO116, reorganization of
Dept. of Agriculture
(1) Existence of case for summary dismissal
(2) Probable cause for violation of RA 3019

Prescription of the Right to Office


Petition for reinstatement after illegal
ouster or dismissal OR recovery of public
office w/in 1 year from the date petitioner
is illegally ousted.
Exception: strong, compelling and
special circumstances
Cristobal vs. Melchor: on grounds of
equity
Reason: title to public office should not
be subject to continued uncertainty; should
be determined as speedily as possible.
Filing of an action for administrative
remedy does NOT suspend the period for
filing the appropriate judicial proceeding
(quo warranto); 1 year period runs even
during pendency of a motion for
reconsideration.
Impeachment
Death
Renders office vacant.
Failure to Assume Elective Office w/in 6
months from proclamation
Unless failure is for a cause or causes
beyond his control
Conviction of a Crime

148

Nachura Notes Constitutional Law

Penalty imposed upon conviction carries


with it the accessory penalty of
disqualification,
conviction by final
judgment automatically terminates official
relationship.
Plenary pardon extinguished the
accessory penalty of disqualification, it will
not restore the public office to the officer
convicted;
He must be given a new appointment.

There is a natural and universal principle


of right and wrong, independent of mutual
intercourse or compact, which can be
discovered and recognized by every
individual through the use of his reason and
conscience.
Since individuals compose the State
whose will is but the collective will of the
inhabitants, the State also becomes bound by
the law of nature.
2. Positivist School
Binding force of international law is
derived from the agreement of the States to
be bound by it.
International law is not a law of
subordination but of coordination.
3. Eclectic or Grotian School
In so far as it conforms to the dictates of
right reason, the voluntary law may be said
to blend with the natural law and is an
expression of it.
In case of conflict, the natural law
prevails, being the more fundamental law.

Filing of Certificate of Candidacy


Any person holding a public appointive
office or position,
Including active members of the AFP
And officers and employees in GOCCs
Shall be considered ipso facto
RESIGNED upon filing of certificate of
candidacy.
Applies even to employees of GOCCs
without an original charter
GENERAL PRINCIPLES

Public International Law distinguished from:

International Law, defined


- Traditional branch of public law which
regulates the relations of States and of other
entities which have been granted
international personality.
Focuses on SUBJECTS (entities which
possess international personality and with
rights and obligations recognized under
international law)
as opposed to OBJECTS (which are
persons or things in respect of which rights
are held and obligations assumed by the
subjects of international law)
- Modern law that deals with the
conduct of States and international
organizations, their relations with each other
and, in certain circumstances, their relations
with persons, natural or juridical.

Private International Law

Nature
Remedies
Parties
Enforcement

Public
International
Law
International
International
Modes
International
Entities
International
Sanction

Private
International
Law
Municipal
Local
Tribunals
Private
Persons
Sheriff/Police

International
Morality/Ethics

Principles which governs relations of States


from the standpoint of conscience, morality,
justice and humanity.

Basis of International Law


1. Law of Nature School
149

Nachura Notes Constitutional Law

general principles
of law
Applies to relations
between states and
international persons
Resolved
through
state-to-state
transactions

International Comity Rules of


politeness/courtesy observed by States in
relations with other States
International Diplomacy Objects of
international policy and the conduct of
foreign affairs
International Administrative Law
Body of laws which regulate the relations
and activities of national and international
agencies with respect to theor material and
intellectual interests which have received
international recognition.

Regulates relations
of
individuals
among themselves
Violations
are
redressed through
local judicial and
administrative
processes
Breaches
entail Collective
individual
responsibility
responsibility

International Law as true law


Although it does not comply with John
Austins concept of law (enforced by
sovereign political authority), it is still true
law.
Application,
Enforcement
and
Compliance
Weakened compliance:
1. lack of central law-making authority
2. debilitating jurisdictional defects
balanced
by
the
risk
of
political/economic retaliations and other
sanctions:
1. public opinions
2. retorsions
3. UN machinery
4. conviction that obedience will redound
to the public good

Incorporation
Doctrine of Incorporation (Section 2,
Article II) - adopts the generally accepted
principles of international law as part of the
law of the land
Although Philippines was not a
signatory to the Hague and Geneva
Conventions, international jurisprudence is
automatically incorporated in Philippine
law, making WAR CRIMES punishable in
the Philippines. (Kuroda vs. Jalandoni)
Prolonged detention of stateless aliens
pending deportation was deemed illegal
incorporating Universal Declaration of
Human Rights (Borovsky vs. Commissioner
of Immigration)
Transformation
Doctrine of Transformation requires the
enactment by the legislative body of such
international law principles as are sought to
be part of municipal law.
protect and advance the right of the
people to a balanced and healthful ecology
in accord with the rhythm and harmony of
nature taken from the Universal
Declaration of Human Rights and the Alma
Conference Declaration of 1978, which
recognizes health as a fundamental human
right.
LLDAs authority to issue cease and
desist order doctrine of necessary
implication

Relationship with Municipal Law


Monist no substantial distinction
Dualist
Municipal Law
Issued by a political
superior
for
observance by those
under its authority.
Enactments of the
law-making
authority

International Law
Not imposed but
adopted by states as a
common
rule
of
action.
Derived from such
sources as:
international
customs,
conventions or
150

Nachura Notes Constitutional Law

Note: Article 38, Statute of International


Court of Justice
- Courts whose function is to decide in
accordance with International Law such
disputes as are submitted to it, shall apply:
1. As PRIMARY SOURCES
International Treaties and Conventions
General or particular
Establishing rules expressly recognized
by the contesting states.
International Customs
Evidence of general practice, accepted as
binding law through persistent usage over a
long period of time
Custom be:
1. prevailing practice by a number of states
2. repeated over a considerable period of
time
3. attended by opinion juris or a sense of
legal obligation
General Principles of Law
Rules derived mainly from natural law,
observed and recognized by civilized
nations.
e.g. res judicata, prescription, pacta sunt
servanda, estoppel

Conflict Between International Law and


Municipal Law
On the domestic sphere, with local court
deciding:
o If in conflict with CONSTITUTION
Consti prevails
SC has the power to declare a
treaty/executive agreement unconstitutional
Where Consti is the highest law of the
land, both statutes and treaties may be
invalidated if they are in conflict with the
Consti
o If in conflict with STATUTE
Doctrine of Incorporation decrees that
rules of international law are given equal
standing
with
national
legislative
enactments, not superior.
Treaty may repeal a statute, a statute
may repeal a treaty principle of lex
posterior derogate priori , that which
comes last in time will usually be upheld by
the municipal tribunal
Retail Trade Nationalization Law
prevails over the Treaty of Amity with
China and the Universal Declaration of
Human Rights former passed in the
exercise of police power of the State.
On the international sphere, with an
international tribunal deciding:
o International law is superior to
municipal law because international law
provides the standard by which to determine
the legality of a States conduct.

2. As SECONDARY SOURCES
Judicial Decisions
Generally of international tribunals.
Most authoritative: ICJ
NOT really sources, but subsidiary
means for finding what the law is and
whether a norm has been accepted as a rule
of international law.
Decision of a national court may be used
depending upon the prestige and perceived
impartiality of the domestic court, not being
in conflict with the decisions of international
tribunals and its admissibility in the forum
where it is cited.
Writings of publicists
1. fair and unbiased representation of
international law
2. by acknowledged authorities in the field

Sources of International Law


- On domestic sphere
1. Constitution
2. Legislative Enactments
3. Case Law (stare decisis)
- On international law problem because:
1. no national legislature
2. no fundamental law
3. doctrine of precedents is not applicable

151

Nachura Notes Constitutional Law

Interpretation of Article 38
although silent, by practice, hierarchy is:
1. treaties
2. customs
3. general principles of law
Exception: Principle of Jus Cogens
Customary international law which has
the status of a peremptory (absolute,
uncompromisisng,
certain)
norm
of
international law.
A peremptory norm is a norm accepted
and recognized by the international
community of states as a rule, from which
no derogation is permitted and which can be
modified only as a subsequent norm having
the same character.
Example: slave trade, piracy and
terrorism

5.
6.
7.
8.

United Nations
belligerent communities
international administrative bodies
individuals

States
group of people living together in a fixed
territory,
organized for political ends
under an independent government
and capable of entering into international
relations with other states.
Elements of a State
1. People
Group of individual, of both sexes,
living together as a community.
Sufficient in number to maintain and
perpetuate themselves.
Casual gathering or a society of pirates
would NOT constitute a state.
2. Territory
Fixed portion on the earths surface
occupied by the inhabitants.
3. Government
Organized, exercising control over and
capable of maintaining law and order within
the territory.
Can be held internationally responsible
for the acts of the inhabitants.
Identity of the state is not affected by
changes in government.
4. Independence or Sovereignty
Freedom from outside control in the
conduct of its foreign and internal affairs.

II. SUBJECTS OF INTERNATIONAL


LAW
Distinction Between Subject and Object of
International Law
Subject
Entity that has rights and responsibilities
under international law.
Proper party in transactions involving
the application of the law of nation among
members of the international community.
Object
Person or thing in respect of which
rights are held and obligations assumed by
the subject.
It is not directly governed by the rules of
international law.
Its rights are received, and its
responsibilities imposed, indirectly through
the instrumentality of an international
agency.

Other Suggested Elements:


1. Civilization
2. Recognition
Act by which a state acknowledges the
existence of another state, a government,
belligerent community and indicates its
willingness to deal with the entity as such
under international law.

Subjects of International Law


1. states
2. colonies and dependencies
3. mandates and trust territories
4. Holy See
152

Nachura Notes Constitutional Law

Theories on Recognition
1. Constitutive (Minority View)
Recognition is the act which constitutes
the entity into an international person.
Recognition is compulsory and legal.
It may be compelled once the elements
of the state are established.
2. Declarative (Majority View)
Recognition merely affirms an existing
fact, like possession of the state of the
essential elements.
Discretionary and political.

Recognition has been construed as


approval
and
non-recognition
as
disapproval, of a government established
through upheaval, a state may not issue a
declaration giving recognition to such
government, but merely accept whatever
government is in effective control without
raising the issue of recognition. Dealing or
not dealing with the government is not a
judgment on the legitimacy of the said
government.
Kinds of Recognition
1. De Facto
Some of the requirements for
recognition are absent.
Recognition generally provisional
Limited to certain juridical relations and
it does not bring about full diplomatic
intercourse
Does not give titles to assets of the state
held or situated abroad
2. De Jure
Requirements for recognition are
fulfilled
When there is no specific indication,
recognition is generally considered de jure
Relatively permanent
Full diplomatic intercourse
Diplomatic immunities
Confers titles to assets abroad
3. Express
4. Implied

Basic Rules on Recognition


Political act.
A matter of policy on the part of each
state
Discretionary on the part of the
recognizing authority.
Exercised by the political (executive)
department of the state.
Legality and wisdom of recognition is
not subject to judicial review.
Requirements
for
Recognition
of
Government
1. Government is stable and effective
2. With no substantial resistance to
authority
3. show willingness and ability to
discharge its international obligation
4. government must enjoy popular consent
or approval of the people
Tobar/Wilson Doctrine
Precludes recognition of any government
established by revolutionary means until
constitutional reorganization by free election
of representatives.
Stimson Doctrine
No recognition of a government
established through external aggression.

Effects of Recognition
1. Diplomatic relations
2. Right to sue in the courts of the
recognizing state
3. Immunity from jurisdiction
4. Entitlement to property within the
recognizing state
5. Retroactive validation of the acts of the
recognized state/government

Estrada Doctrine

Conditions for Recognition of Belligerency

153

Nachura Notes Constitutional Law

1. organized civil government having


control and supervision over the armed
struggle
2. serious and widespread struggle with
outcome uncertain
3. occupation of a substantial portion of the
national territory
4. willingness on the part of the rebels to
observe the rules/customs of war
absence of any will result merely in
insurgency, which is rarely recognized
recognition may either be express or
implied
examples of implied: proclamation by
the parent state of a blockade of a port held
by the rebels or proclamation of neutrality
by a third state

Principle of State Continuity


The state continues as a juristic being
notwithstanding
changes
in
the
circumstances, provided only that such
changes do not result in the loss of any of its
essential elements.
Succession of States
Kinds:
1. Universal
2. Partial
Effects:
1. Political laws are abrogated while
municipal laws remains in force
2. Treaties are discontinued except those
dealing with local rights and duties
3. All rights of the predecessor state are
inherited
4. Successor state can assume and reject
liabilities in its discretion

Effects of Recognition of Belligerency


1. Responsibility for the acts of rebels
resulting in injury to nationals of the
recognizing state shall be shifted to the rebel
government
2. Legitimate government recognizing the
rebels shall observe the laws of war in
conducting hostilities
3. 3rd states recognizing the belligerency
shall maintain neutrality
4. recognition is only provisional and for
the purpose of the hostilities

Conquered state has no personality in


international law.
Succession of Government
1. Integrity of the State is not affected
2. State continues as the same international
person except that its lawful representative
is changed
Consequences of Succession of Government
1. all rights of the predecessor government
are inherited by the successor
2. where the new government was
organized by virtue of a constitutional
reform duly ratified in a plebiscite, all
obligations of the predecessor are likewise
assumed
3. where the new government is established
through violence, the new government may
lawfully reject purely personal political
obligations of the predecessor but not those
obligations contracted by it in the ordinary
course of official business

Creation of States
1. accretion of independence
2. agreement
3. attainment of civilization
4. revolution
5. unification
6. succession
Extinction of States
1. extinction
2. emigration en masse of its population
3. loss of territory
4. overthrow of government resulting in
anarchy

Classes of States

154

Nachura Notes Constitutional Law

1. Independent freedom to direct and


control foreign relations without restraint
from other states
a. Simple single central government with
power over internal and external affairs.
b. Composite 2 or more sovereign states
joined
together
to
constitute
one
international person
i. Real Union
2 or more states are merged under a
unified authority so that they form a single
international person through which they act
as one entity.
State retains their separate identities.
Respective international personalities are
extinguished and blended in the new
international person.
ii. Federal Union
2. Dependent theoretically a state, but
does not have full freedom in the direction
of its external affairs
a. Protectorate established at the request
of a weaker state for the protection by a
strong power
b. Suzerainty result of a concession from
a state to a former colony that is allowed to
be independent subject to the retention by
the former sovereign of certain powers over
external affairs of the latter.
3. Neutralized independence and integrity
are guaranteed by an international treaty on
the condition that such states obligates itself
never to take up arms against any other state
(except in self-defense) or to enter into an
international obligation as would indirectly
involved it in war.

Colony dependent political community


consisting of a number of citizens of the
same country who migrated to inhabit
another country, but remain subject to the
mother state.
Dependency territory distinct from the
country in which the supreme power resides,
but belongs rightfully to it, and subject to
the laws and regulations which the sovereign
may prescribe.
NOTE: Theoretically, they belong to the
parent state and are without any personality.
However, on occasions, colonies have been
allowed to participate in their own right to
certain international undertaking.
Territories under International Control or
Supervision
Non-self-governing territories which
have been placed under international
supervision or control to insure their
political, economic, social and educational
advancement.
Mandates: former territorial possession
of states defeated in World War and placed
under control of the League of Nations
Many of these mandates became trust
territories which are placed under the
Trusteeship Council of the United Nations.
Condominium

territory
administered by 2 states.

jointly

The United Nations


Historical Development
1. League of Nations
2. London Declaration
3. Atlantic Charter
4. Declaration by United Nations
5. Moscow Declaration
6. Dumbarton Oaks Proposal
7. Yulta Conference
8. San Francisco Conference
9. UN General Assembly welcomed
Macedomia

Vatican City and the Holy See


Has all the constituent elements of
statehood.
Has all the rights of a state.
The Holy See is an international person
with which the Philippines had diplomatic
ties until 1957.
Colonies and Dependencies
155

Nachura Notes Constitutional Law

UN Charter
Constitution, that governs the relations
of international persons
Technically, a treaty a contract which
parties must respect under the doctrine of
pacta sunt servanda, although it also applies
to non-member States at least in so far as
may be necessary for the maintenance of
international peace and security.
111 articles + preamble + concluding
provisions
Annexed is the Statute of the ICJ

4. able and willing to carry out these


obligations
Admission
Decision of 2/3 of those present and
voting in the General Assembly upon
recommendation of at least 9 including
permanent members of the Security Council
Suspension
Decision of 2/3 of those present and
voting in the General Assembly upon
recommendation of at least 9 including
permanent members of the Security Council
Effects:
1. Cannot participate in meetings
2. Cannot be elected to continue or to serve
in the Security Council, Economic and
Social Council and Trusteeship Council
3. Nationals may continue to serve in the
Secretariat and IC,
4. A member is still subject to discharge its
obligations under the Charter
To lift, qualified majority vote of the
Security Council
Expulsion
2/3 vote of those present and voting in
the
General
Assembly
upon
recommendation of at qualified majority of
the Security Council
Ground: persistently violating the
principles contained in Charter
Withdrawal
Intended
that no provision on
withdrawal is included in the charter.
No
compulsion
for
continued
membership.

Amendment
2/3 of the members of the General
Assembly and ratified in accordance with
their respective constitutional processes by
2/3 of the members of the UN, including
permanent members of the Security Council
A general conference called by a
majority vote of the General Assembly and
any nine members of the Security Council,
may propose amendments by a 2/3 vote of
the conference and shall take effect when
ratified by 2/3 of the members of the UN,
including the permanent member of the
Security Council.
Principal Objectives
1. prevention of war
2. maintenance of international peace and
security
3. development of friendly relations among
members of the international community
4. attainment of international cooperation
5. harmony in the actions of nations

1.
2.
3.
4.
5.
6.

Membership
Classes: based on the manner of
admission, members may be:
1. Original
2. Elective
Qualification
1. State
2. peace-loving
3. accept the obligations under the Charter

Principal Organs
General Assembly
Security Council
Economic and Social Council
Trusteeship Council
Secretariat
International Court of Justice

General Assembly

156

Nachura Notes Constitutional Law

- Consist of all the members of the


organization
- Each is entitled to not more than 5
representative and 5 alternates
- Each member has only one vote
- Regular session once a year
- May hold special sessions called by
Secretary General at the request of the
Security Council or majority of members
- On important questions, vote of 2/3 of
the members present and voting is required
- On other questions, a simple majority
- To classify the question as important, the
vote required is a simple majority
- Functions
1) Deliberative
2) Supervisory
3) Financial
4) Elective
5) Constituent

3) Recommend methods of adjustment of


disputes
4) Determine the existence of threats to
peace, breach of peace, acts of aggression
and make appropriate recommendations,
5) Undertake preventive and enforcement
actions
Preventive actions
1) Provisional measures to prevent a
conflict from worsening
2) Deployment of peacekeeping and
observer mission
- Established by Security Council
- Directed by the Secretary General
- Consent of the host government
- Military observers shall be unarmed
- Peace keeping forces may be armed with
light weapons, but are not authorized to use
force except in self-defense
- Operations must not interfere with
internal affairs
3) Other measures
- Interruption of economic relations,
communication or diplomatic relations,
except for humanitarian reasons
Enforcement actions
1) Deployment of air, sea and land forces
2) Institution of a blockade

Security Council
- Key organ in the maintenance of
international peace and security
- Composition
1) 5 permanent members: China, France,
Russia, UK and US
2) 10 elective members, elected for 2 years
by the General Assembly
5 from African and Asian States
2 from Latin American States
2 from Western European and other
states
1 from Eastern European state
- For elective members, no immediate
reelection is allowed
- Function continuously and sessions may
be called at any time
- Representative of the state should
always be available
- Functions
1) Maintain peace and security
2) Investigate disputes and call disputants
to settle their differences through peaceful
means

Domestic Jurisdiction Clause


Necessary for settlement of disputes
Only limitation is that dispute must be
international
Otherwise, such action would violate the
principle that U.N. shall not intervene in any
matter within the jurisdiction of any State.
Voting: The Yalta Formula
Each member of the Security Council
shall have one vote, distinction as to
permanent and non-permanent members in
the resolution of substantive questions.
Procedural matter affirmative vote by
any 9 or more members.

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Acts as Secretary in all meetings of the


General Assembly, Security Council.
Economic and Social Council and
Trusteeship Council
International civil servants
Cannot receive instructions from any
government or source outside the UN
Right of Political Initiative
May bring to the attention of the UN
Security Council any matter which, in his
opinion, may threaten international peace
and security.

Non-procedural matters concurrence of


at least 9 members, including all the
permanent members.
Determination of whether a matter is
procedural or substantive, is non-procedural
double veto by a permanent member.
Abstention or absence of any permanent
member is not considered a veto.

Economic and Social Council


54 members elected by the General
Assembly for a 3-year term
Exert efforts toward:
1) Higher standards of living
2) Conditions of economic and social
progress and development
3) Solutions of international economic ,
social and health related problems
4) Universal respect for and observance of
human rights and fundamental freedoms
Decisions reached by a majority vote

International Court of Justice


Principal judicial organ of the UN
Composition:
15 members
elected for a term of 9 years
by absolute majority vote in the General
Assembly and the Security Council
in separate elections.
no two of whom must be nationals of the
same state
Qualifications
must possess high moral character
possess the qualifications required in
their respective countries for appointment to
their highest judicial offices
Court decides contentious cases and
renders advisory opinions.
Only states, including non-members of
the UN, may be parties in contentious cases.
Jurisdiction of the court is based on the
consent of the parties in accordance with
optional jurisdiction clause
Court may decide on:
the interpretation of treaties,
any question of international law,
the existence of facts constituting breach
of international obligations and
the nature or extent of the reparation to
be made for the breach of an international
obligation.
Advisory opinions may be given upon
request of the General Assembly, or the
Security Council or the other organs of the

Trusteeship Council
Assisting the Security Council and the
General Assembly in the administration of
the International Trusteeship System
Composition
1) Members of UN administering trust
territories
2) Permanent members of the Security
Council not administering trust territories
3) As many other members elected by the
General Assembly as may be necessary to
ensure that the total number of members of
the UN which administer trust territories and
those which did not
Secretariat
Chief administrative organ of the UN
Headed by the Secretary General who is
chosen by the General Assembly upon
recommendation of the Security Council
Secretary General
Highest representative of the UN,
authorized to act in its behalf

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UN when authorized by the General


Assembly.

3. treaties, e.g. Treaty of Versailles


4. The need for States to maintain an
international standard of justice in the
treatment of aliens
5. Genocide Convention
6. 1930 Hague Convention
7. 1950 European Convention on Human
Rights and Fundamental Freedoms

International Administrative Bodies


- Non-political
- Autonomous
- Not subject to control by any state
International Law Commission
o Established by UN General Assembly in
1947
o To promote the codification and
progressive development of international
law.
o One of the functions: to produce Draft
Articles which may codify certain
customary international law or aid in its
development.
o E.g.
Draft
Articles
on
State
Responsibility
Legality of the Threat or Use of Nuclear
Weapons Opinion (WHO Case)
o ICJ ruled that it did not have jurisdiction
to decide on request of WHO to render an
advisory opinion on whether the use of
nuclear weapons by a State in war or other
armed conflict would be a breach of its
obligations
under
international
law,
including WHO Convention.
o International organizations are governed
by the PRINCIPLE OF SPECIALTY, that
they are invested by the States which create
them with powers, the limits of which are a
function of the common interest whose
promotion those States entrust to them.
o To accede to the demand of WHO would
be violative of the Principle of Specialty, for
such competence could not be deemed a
necessary implication of the Constitution.

III. FUNDAMENTAL RIGHTS OF


STATE
1. Existence and Self-Preservation
2. Right to Sovereignty and Independence
3. Right of Equality
Existence and Self-Preservation
Article 51 of the UN Charter
Right of the state to individual and
collective self-defense through regional
appointments, if an armed attack occurs
against such state, until the Security Council
has taken measures necessary to maintain
international peace and security.
Right may be resorted to upon clear
showing of grave and actual danger and
must be limited to necessity.
Security Council which determines
whether or not an armed attack has taken
place.
Aggression
The use of armed force by a state against
the sovereignty, territorial integrity or
political independence of another state or in
any other manner inconsistent with the UN
Charter.
The first use of armed force by a State in
contravention of the UN Charter is prima
facie evidence of an act of aggression.
Other principles
1. No consideration of whatever nature,
political, economic or military, can justify
aggression.
2. A war of aggression is a crime against
international peace which will give rise to
international responsibility.

Individuals
- Traditionally considered as objects
- Granted a certain degree of international
personality under a number of Agreements:
1. UN Charter
2. Universal Declaration of Human Rights
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Nachura Notes Constitutional Law

3. No territorial acquisition or special

of a state, unless necessary to remove and


prevent threats to the peace, breaches or acts
of aggression.
o 1965 UN General Assembly no state
has the right to intervene, directly or
indirectly, in the affairs of another.
3. At present, intervention is allowed only:
a. as an act of individual or collective selfdefense in response to an armed attack
b. pursuant to treaty stipulations or
c. with prior UN authorization

advantage resulting from aggression shall be


recognized as lawful.
4. All these are without prejudice to the
right of self-determination, freedom and
independence of people deprived of such
rights, nor the right to these people to
struggle to that end and to seek and receive
support.
Right to Sovereignty and Independence
Sovereignty
The totality of the powers, legal
competence and privileges of a state arising
from customary international law and not
dependent on the consent of another state.
Independence
The freedom to conduct foreign relations
without outside control.
The right to independence is a natural
aspiration of people.
It is not an absolute freedom.
Valid restraints may consist in the
obligation to observe
1. the rights of others
2. treaty stipulations
3. obligations arising from membership in
international organizations
Intervention

Right of Equality
- Article 2 of UN Charter
Organization is based on the principle of
sovereign equality of all its members
Guaranteed is legal or sovereign
equality: equal in law, rights of sovereignty,
personality, territorial integrity and political
independence respected by others.
Not equality in fact
- Act of State Doctrine
A state should not inquire into the legal
validity of the public acts of another state
done within the territory of the latter.
Considerations such as motive are
immaterial.
State doctrine seems to make a
determination on the validity of the
confiscation of property by a foreign state a
violation of the principle of international
law. (Sabbatino Case)
Acts
of torture, execution and
disappearance were clearly acts outside of
the Presidents authority and are not covered
by the act of state doctrine.
- Doctrine of State Immunity
As a consequence of independence,
territorial supremacy and equality, a state
enjoys immunity from the exercise of
jurisdiction (executive, legislative, judicial)
by another state, unless he has given
consent, waived its immunity or
voluntarily submitted to the jurisdiction of
the court concerned.

State interferes in the domestic or


foreign affairs of another state through the
use of force or threat of force.
Protest or demand for rectification or
reparation does not comprise intervention.
1. Intervention used to be justified for
preservation of the balance of power, preemptive self-defense, enforcement of treaty
obligation, collection of debts (subsequently
prohibited Drago Doctrine in the HGUE
Convention).
2. Contemporary
International
Law,
intervention is not allowed.
o Article 2, UN Charter even UN is
precluded from intervening in matters
essentially within the domestic jurisdiction

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Nachura Notes Constitutional Law

4. Maritime
- National Territory of the Philippines
Section 1, Article I.
- Organic Acts
1. Treaty of Paris cession of the
Philippine Islands by Spain to the US
2. Treaty between Spain and the US
Cagayan, Sulu and Sibuto
3. Treaty between US and Great Britain
Turtle Islands and Mangsee Islands
4. 1935 Constitution Batanes
5. 1973 Constitution by historic or legal
title
6. PD 1596 Kalyaan Islands by virtue of
occupation and exercise of jurisdiction

Neither may its public property be


attached or taxed, nor its public vessel be
boarded, arrested or sued.
Based on the principle of par in parem
non habet imperium.
The States immunity extends to the
Head of State who is the personification of
the State.
Restrictive Application of the Doctrine
Only with respect to sovereign or public
acts of the state and cannot be invoked with
respect to private or proprietary acts.
Neither may this immunity be invoked
when the foreign state sues in the courts of
another state, for then it is deemed to have
submitted itself to the ordinary incidents of
procedure and thus, a counterclaim may be
validly set up against it.
On Labor Contracts
Immunity Extends to Diplomatic
Personnel to the United Nations, its organs
and specialized agencies and to international
organizations
Waiver of Immunity
1. gives its consent at the time the
proceeding is instituted
2. takes steps relating to the merits of the
case before invoking immunity
3. by treaty or contract, it had previously
given consent
4. by law or regulation in force at the time
the complaint arose, it has indicated that it
will consent to the institution of the
proceedings.

Land Territory (Terrestrial Domain)


Modes of Acquisition
1. Discovery and Occupation
Territory not belonging to any State or
terra nullius is placed under the sovereignty
of the claiming State.
Discovery alone merely creates an
inchoate right and it must be followed
within a reasonable time by effective
occupation and administration.
Palmas Island Arbitration Case
inchoate right flowing from discovery was
deemed lost because administration was not
undertaken within a reasonable time.
Clipperton Island Case small territory
infrequent administration sufficient
Eastern Greenland Case thinly
populated and uninhabited areas, very little
actual exercise of sovereignty was needed in
the absence of competition.
Kalayaan Islands Tomas Cloma
claim to the islands is justified by reason of
history, indispensable need and effective
occupation and control.
Manila Declaration of 1992 whatever
conflicting claims, there may be over the
islands shall be resolved in a peaceful
manner, through diplomatic negotiations.
2. Prescription

IV.
RIGHT
TO
TERRITORIAL
INTEGRITY AND JURISDICTION
Territory
- Fixed portion on the surface of the earth
on which the State settles and over which it
has supreme authority.
- Components:
1. Terrestrial
2. Aerial
3. Fluvial

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Nachura Notes Constitutional Law

o Middle of the Bridge Doctrine: Where


there is a bridge over a boundary river, the
boundary line is the middle or center of the
bridge.
ii. Bays and Gulfs
Bay well-marked indentation whose
penetration is in such proportion to the
width of its mouth as to contain land-locked
waters and constitute more than a curvature
of the coast.
Area must be as large or larger than a
semi-circle whose diameter is a line drawn
across the mouth of such indentation, or if
the mouth is less than 24 miles wide.
Historic Bay waters are considered
internal because of the existence of historic
title.
iii. Straits narrow passageways connecting
2 bodies of water.
If the distance between the two opposite
coasts is not more than 6 miles, they are
considered internal waters.
iv. Canals
Suez Canal - neutralized
Panama Canal open to everyone in
times of war or peace
2) Archipelagic Waters
Archipelagic Doctrine The waters
around, between and connecting the islands
of the archipelago, regardless of their
breadth or dimension, are to be treated as
internal waters.
Archipelago group of islands
(including parts of island), interconnecting
waters and other natural features which are
closed interrelated in such islands, waters,
and other natural features which form an
intrinsic geographical, economic and
political entity for which historically has
been regarded as such.
Straight Baseline Method to determine
extent of archipelagic waters, the
archipelagic state shall draw straight
baselines connecting the outermost points of
the outermost islands and drying reefs
providing that the ratio of the area of the

Continuous and uninterrupted possession


over a long period of time
In international law, as opposed to civil
law, there is no rule of thumb as to the
length of time needed for acquisition of
territory through prescription.
Grotius
doctrine
of immemorial
prescription uninterrupted possession
going beyond memory.
3. Cession
a. Voluntary
o Treaty of Sale
o Treaty of Donation
b. Involuntary or Forced
4. Conquest
No longer recognized.
UN Charter prohibits resort to threat or
use of force against territorial integrity or
political independence.
Stimson Doctrine (even before UN
Charter) which forbade recognition of any
government set up through external
aggression.
5. Accretion
Increase in the land area of the State,
through natural means or artificially through
human labor
Maritime Authority (Fluvial and Maritime
Domain)
1) Internal (National) Waters
Bodies if water within the land mass.
The UN Convention on the Law of Seas
all waters on the landward side of the
baselines of the territorial sea.
i. Rivers
National
Boundary divide territories of States
International flows through various
states
o Thalweg Doctrine: For boundary rivers,
in the absence of an agreement between the
riparian States, the boundary line is laid on
the middle of the main navigable channel

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Nachura Notes Constitutional Law

water to the area of the land, including


atolls, is between 1:1 and 9:1.
The length of such baselines shall not
exceed 100 nautical miles, except that up to
3% of the total number of base lines
inclosing any archipelago may exceed that
length, up to a maximum of 125 nautical
miles.
The baselines drawn should not depart
from, to any appreciable extent, from the
general configuration of the archipelago.
All the waters within the baselines shall
be considered as internal waters.
The breadth of the 12-mile territorial
sea, the contiguous zone, the exclusive
economic zone and the continental shelf
shall then be measures from the archipelagic
baselines.
Vessels may be allowed innocent
passage. This right may be suspended, after
PUBLICATION in the interest of
INTERNATIONAL SECURITY.
Coastal state may designate the
ARCHIPELAGIC SEA LANES for
continuous, unobstructed transit vessels.
3) Territorial Sea - belt of the sea located
between the coast and internal waters of the
coastal state on one hand and the high seas
on the other, extending up to 12 nautical
miles from the low-water mark, or in case of
archipelagic states, from the baselines.
GR: ships (not aircrafts) of all states
enjoy the right of innocent passage through
the territorial sea (not waters).
Must be continuous and expeditious.
Exception: force majeure
Submarines and other underwater craft
are required to navigate on the surface and
to show their flag
4) Contiguous Zone extends up to 12
nautical miles from the territorial sea.
Technically, not part of the territory of
the State.
Coastal state may exercise limited
jurisdiction over the contiguous zone to

prevent infringement of customs, fiscal,


immigration or sanitary laws.
5) Exclusive Economic Zone extends up
to 200 nautical miles from the low-water
mark or the baselines.
Coastal state may exercise sovereign
rights over economic resources of the sea,
seabed, subsoil,
Other States shall have freedom of
navigation and over-flight, to lay submarine
cables and pipelines, and other lawful uses.
States with overlapping EEZ enter
into appropriate treaty for joint exploitation
and utilization.
Philippine EEZ Scarborough Shoal
6) Continental Shelf
Comprises the seabed and the subsoil of
the submarine areas that extends beyond the
territorial sea throughout the natural
prolongation of its land territory to the outer
edge of the continental margin, or to a
distance of 200 miles from the baselines
from which the territorial sea is ensured
where the outer edge of the continental
margin does not extend up to that distance.
Coastal state enjoys right of exploitation
of oil deposits and other resources in the
continental shelf.
In case continental shelf extends to the
shores of another State, or is shared with
another State, the boundary shall be
determined in accordance with equitable
principles.
7) High Seas
Treated as res communes or res nullius
Not territory of any particular state
Traditional view: Freedom of the high
seas open and available, without
restriction, to the use of all states for the
purpose of navigation, flight over them,
laying submarine cables and pipes, fishing,
research, mining, etc.
At present, subject to regulation arising
from treaty stipulations.

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Freedom of navigation right to sail


ships on the high seas, subject only to
international law and the laws of the flag
state.

Intrusion into the air space by civilian


aircraft may be intercepted but in no case
shall the interception be attended with the
use of weapons.
Military aircraft may be shot down.

Settlement of Dispute Arising from the UN


Convention on the Law of the Sea
(UNCLOS)
Part XV of 1982 UN Convention on the
Law of the Sea
Requires States to settle peacefully any
dispute concerning the convention.
Failing bilateral settlement settled for
compulsory settlement to one of the
tribunals having jurisdiction.
International Tribunal for the Law of the
Sea, ICJ, and arbitral or special arbitral
tribunals constitutes under UNCLOS

Outer Space
Rules governing high seas apply;
considered res communes.
Under customary international law,
States have the right to launch satellites in
orbit over the territorial air space of other
States.
Outer Space Treaty of 1967
1. Outer space is free for exploration and
use by all States
2. Cannot be annexed by any State
3. May be used exclusively for peaceful
purposes. (nuclear weapons of mass
destruction may not be placed in orbit
around the earth)
1972 Convention on International
Liability for Damage Caused by Outer
Space Objects
o States which launch objects into space
may be held liable for the harmful
contamination or for damage which may be
caused by falling objects.
Theories on where outer space begins
1. lowest altitude for artificial earth
satellites to orbit without being destroyed by
friction (90 kms above earth)
2. theoretical limits of air flights (84 kms
above earth)
3. functional approach rules shall not
depend on the boundaries set, but on the
nature of the activity undertaken.

Air Territory
- Aerial domain
- Air space above the land and water of
the state.
- International Convention on Civil
Aviation (Chicago Convention)
Every State has complete and exclusive
sovereignty over the air space above its
territory; but this shall not include outer
space (re communes).
Other States have no right of innocent
passage over the air territory of another
State.
5 Freedoms (of Air Transportation for
Scheduled International Services)
Fly across the territory without landing
Land for non-traffic purposes
Land to put down passenger, mail, cargo
of flag territory
Land to take passenger, mail, cargo of
flag territory
Put down passenger, mail, cargo from
these territories
- 1981 Resolution of the International
Civil Aviation Organization

Jurisdiction
- Power or authority exercised by a State
over land, persons, property, transactions
and events.
- Bases of Jurisdiction
1. Territorial Principle

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Nachura Notes Constitutional Law

4. Principle of Universality
State has jurisdiction over offenses
considered as universal crimes regardless of
where committed and who committed them.
Universal crimes threaten the
international community as a whole and are
considered criminal offenses in all countries:
a. Genocide
b. Piracy jure gentium
c. White slave trade
d. Hijacking
e. Terrorism
f. War crimes
5. Principle of Passive Personality
State exercises jurisdiction over crimes
against its own nationals even if committed
outside its territory.
May be resorted to if the others are not
applicable.

State may exercise jurisdiction only


within its territory.
Exceptionally, it may have jurisdiction
over persons and acts done outside its
territory depending on the kind of
jurisdiction it invokes.
While there is no territorial limit on the
exercise of jurisdiction over civil matters, a
State, as a general rule, has criminal
jurisdiction over offenses committed
committed within its territory, except over:
1. continuing offenses
2. acts prejudicial to the national security
or vital interests of the State
3. universal crimes
4. offenses covered by special agreement
(obsolete)
2. Nationality Principle
State has jurisdiction over its nationals
anywhere in the world, based on the theory
that a national is entitled to the protection of
the State wherever he may be, and thus, is
bound to it by duty of obedience and
allegiance, unless he is prepared to renounce
his nationality.
Applies to civil matters (Article 15 of
CC) and taxation.
NOT applicable to criminal offenses.
3. Protective Principle
State has jurisdiction over acts
committed abroad (by nationals or
foreigners) which are prejudicial to its
national security or vital interests.
Article 2 of RPC, Philippines has
jurisdiction over
1. offenses committed on board a
Philippine ship or airship
2. forging/counterfeiting of Philippine
coins or currency notes
3. introduction into Philippines of such
forged or counterfeit coins or notes
4. offenses committed by public officers or
employees in the exercise of official
functions
5. crimes against national security and the
law of nations

- Exemptions from Jurisdiction


1) Doctrine of State Immunity
2) Act of State Doctrine
A state could not inquire into the legal
validity of the public acts of another State
done within the territory of the latter.
The doctrine is more of a choice of law
rule, and may be raised by private parties.
3) Diplomatic Immunity
Part of customary international law.
To uphold their dignity as representative
of their respective States and to allow them
free and unhampered exercise of their
functions.
Procedure for claiming immunity:
1) Request by the foreign state for an
executive endorsement by the Department of
Foreign Affairs
2) Determination made by the Executive
Department is a political question which is
conclusive on Philippine courts.
Head of the State enjoys personal
immunity from the jurisdiction of another
State
1961 Vienna Convention on Diplomatic
Relations
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Nachura Notes Constitutional Law

Right of the foreign State to acquire


property in the receiving State for its
diplomatic mission, as well as immunity of
the diplomatic envoy from civil jurisdiction
of the receiving State over any real action
relating to immovable property which the
envoy holds on behalf of the sending state
for purposes of the mission.
4) Immunity of the United Nations, its
Organs, Specialized Agencies, other
International Organizations and its Officers
Article 105, UN Charter: organizations,
officers, representatives of members, who
shall such privileges and immunities as are
necessary for the independent exercise of
their functions.
Secure them legal and practical
independence in fulfilling their duties.
Free from political pressure or control by
the host country.
Convention on the Privilege and
Immunities of the United Nations the
immunities are with respect to:
1) Legal processes relative to words spoken
or written and acts in their official capacity
2) Taxation on salaries and emoluments
3) National service obligations
4) Immigration, restriction and alien
registration
5) Same immunities as are enjoyed by
diplomats of comparable rank
International agency, enjoys immunity
from the legal writs and processes of the
Philippines, because subjection to local
jurisdiction would impair the capacity of
such body to discharge its responsibilities
impartially in behalf of its member States.
Section 31, Convention on the Privileges
and Immunities to Specialized Agencies of
the UN provides remedy for those who
may be adversely affected by these
immunities each specialized agency of
the UN shall make a provision for
appropriate modes of settlement of disputes
arising out of contracts or other disputes of
private character to which it is a party.

5) Foreign merchant vessels exercising the


right of innocent passage or arrival under
stress
Innocent Passage: navigation through the
territorial sea of a State for the purpose of
transversing that sea without entering
internal waters, or of proceeding to internal
waters, or making for the high seas from the
internal waters, as long as it is not
prejudicial to the peace, good order or
security of the coastal State.
Arrival under stress: involuntary
entrance, due to lack of provisions,
unseaworthiness of vessel, inclement
weather or other case of force majeure, such
as pursuit by pirates.
6) Foreign armies passing through or
stationed in the territory with the permission
of the State
7) Warships and other public vessels of
another State operated for non-commercial
purposes
Generally
immune
from
local
jurisdiction floating territory
Crew members are immune from local
jurisdiction when on shore duty.
N/A if the crew members violate local
laws while on furlough or off-duty
Jurisdiction over Land Authority
- Save for exceptions, the State exercises
jurisdiction over everything found within the
terrestrial domain.
Jurisdiction over Maritime Authority
- Over internal waters
Same jurisdiction as land area, since the
internal water are deemed assimilated in the
land mass
Foreign merchant vessels docked in a
local port or bay, the coastal state exercises
jurisdiction in civil matters, but criminal
jurisdiction depends on:
1) English Rule: coastal state shall have
jurisdiction over all offenses committed on

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Nachura Notes Constitutional Law

board the vessel except those which do not


compromise the peace of the port
2) French Rule: flag State shall have
jurisdiction over all offenses committed on
board the vessel except those which
compromise the peace of the port.
- Over archipelagic waters
Same rule as internal waters.
Except for innocent passage of merchant
vessels through archipelagic sea lanes.
- Over the territorial sea
Criminal jurisdiction over foreign
merchant vessels depends on English Rule
or French Rule
Exceptions:
1) Innocent passage and
2) Involuntary surrender (distress on the
vessel must be real)
- Over the contiguous zone
UN Convention on the Law of the Sea,
the Coastal State may exercise the control
necessary to prevent infringement of its
customs, fiscal, immigration and sanitary
regulations,
and
punish
the
said
infringement.
- Over the exclusive economic zone
UN Convention on the Law of the Sea,
Coastal State has sovereign rights over the
EEZ for purposes if exploring and
exploiting, conserving and managing the
natural resources, whether living or nonliving, of the sea-bed, sub-soil, and the
superjacent waters as well the production of
energy from the water, currents and winds.
Other States shall have the freedom of
navigation and over-flight, to lay submarine
cables and pipes and other lawful uses.
- Over the continental shelf
Coastal State enjoys the right of
exploitation of oil deposits and other
resources in the continental shelf.
In case the continental shelf extends to
the shores of another State or is shared with
another State, the boundary shall be
determined in accordance with equitable
principles.

- Over the high seas


Its vessels
Flag state has jurisdiction over its public
vessels wherever they are, and over its
merchant vessels on the high seas.
Because of the Flags of Convenience
Controversy, the UN Convention on the
Law of the Sea concedes that a vessel shall
have the nationality of the flag it flies
provided there is genuine link between the
State and the vessel State must
effectively exercise jurisdiction and control
in administrative, technical and social
matters over the ship.
Pirates
Enemies of mankind
May be captured on the open seas by the
vessels of any State
Engaged in illicit traffic in drugs and
slave trade
All states shall cooperate in the
suppression of:
1) Illicit traffic in narcotics
2) Illicit traffic in slave trade
3) Terrorism
4) Unauthorized broadcasting from the high
seas, except in distress calls
In the exercise of the right to visit and
search
Laws of Neutrality public vessels or
aircraft of a belligerent State may visit and
search any neutral merchant vessel on the
open seas and capture it if found to be
engaged in activities favorable to the other
belligerent.
Under the doctrine of hot pursuit
If an offense is committed by a foreign
merchant vessel within the territorial waters
of the coastal state (or of the coastal state
has good reason to believe that such an
offense had been committed) the said States
vessels may pursue the offending vessel into
the open seas and, upon capture, bring it
back to its territory for punishment.
Exercised to violations committed in the
EEZ or on the continental shelf installations.
167

Nachura Notes Constitutional Law

- Jurisdiction of the court limited to


serious crimes of concern to international
community as a whole
a. Genocide
b. Crimes against humanity
c. War crimes
d. Crimes of aggression

However, to be lawful:
1) The pursuit must have begun before the
offending vessel has left the territorial
waters or the contiguous zone of the coastal
state
2) The pursuit must be continuous and
unabated
3) Ceases as soon as the ship being pursued
enters the territorial sea of its own or of a
Third State.

V. RIGHT OF LEGATION
The Right of Legation
Right of Diplomatic Intercourse
Right of the state to send and receive
diplomatic missions, which enables States to
carry on friendly intercourse.
Not a natural or inherent right, exists by
common consent.
No legal liability is incurred by the State
for refusing to send or receive diplomatic
representatives.
Governed by the Vienna Convention on
Diplomatic Relations.

Jurisdiction over other Territories (ExtraTerritorial Jurisdiction)


- State may, by virtue of customary and
conventional law, extend its jurisdiction to
territory not within its sovereignty in the
following:
1) Assertion of personal jurisdiction over
its national abroad
2) Relations with other states, as when it
establishes a protectorate, condominium, or
administers trust territory or occupies enemy
territory in the course of war
3) Consequence of waiver of jurisdiction
by the local state over person and things
within the latters territory
4) Principle of extraterritoriality, exemption
of persons and things from the local
jurisdiction on the basis of international
custom.
(Principle
of
extra-territoriality:
exemption from jurisdiction is based on
treaty or convention; discredited)
5) Enjoyment of easements and servitudes

Agents of Diplomatic Intercourse


1. Head of State
Embodiment of the sovereignty of the
State
Enjoys right to special protection for his
physical safety and the preservation of his
honor and reputation.
Enjoys principle of exterritorilaity
quarters, archives, property and means of
transportation are inviolable
Immune from criminal and civil
jurisdiction, except when he himself is the
plaintiff
Not subject to tax or exchange or
currency restrictions.
2. The Foreign Office
Entrusted with the actual day-to-day
conduct of foreign affairs
Headed by Secretary or Minister who
can make binding declarations on behalf of
his government.

Rome Statute of the International Criminal


Court (ICC)
- Adopted in July, 1988 by a Conference
of States in Rome
- Come into existence once 60 States have
ratified
- Philippines signed the ICC Statute on 28
December 2000
- January 2000 124 countries have
signed; only 25 have ratified

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Nachura Notes Constitutional Law

Establishment of Resident Missions


States carry on diplomatic intercourse
through permanent missions established in
the capitals of other States.
Composed of:
1. Head of Mission Classified by Vienna
Convention:
a. Ambassadors/nuncios accredited to
Head of State, and other heads of mission of
equivalent rank
b. Envoys/ministers/internuncios,
accredited to Head of State
c. Charges daffaires, accredited to
Ministers of Foreign Affiars
2. Diplomatic Staff
Engaged in diplomatic activities and are
accredited diplomatic rank
3. Administrative and Technical Staff
Employed in administrative and
technical staff of the mission

responds with an informal conformity


(agreement) AGREATION
After conclusion of the informal process,
the diplomatic mission commences when the
envoy presents himself at the receiving state
generally armed with the following papers:
1) LETTRE DE CREANCE (Letter of
Credence) name/rank/general character of
the mission and a request for favorable
reception and full credence
2) DIPLOMATIC PASSPORT authorizing
his travel
3) INSTRUCTIONS includes document
of full powers (pleins pouvoirs) authorizing
him to negotiate on extraordinary or special
business
4) CIPHER/CODE/SECRET KEY for
communications with his country
Functions
1) Represent sending State
2) Protect in receiving State the interests of
the sending State and its nationals, within
the limits of international law
3) Negotiating with the government of
receiving State
4) Ascertaining by all lawful means the
conditions and development in the receiving
State
5) Promote friendly relations
6) Developing their economic, cultural and
scientific relations

4. Service Staff
Engaged in domestic service of the
mission
Diplomatic Corps
According to custom, all diplomatic
envoys accredited to the same state form a
body known as the Diplomatic Corps
Doyen/head of the body:
1) Papal Nuncio
2) Oldest ambassador
3) Oldest minister plenipotentiary

Diplomatic Immunities and Privileges


except as provided below, immunities and
privileges are enjoyed by the ENVOY and
the MEMBERS of the DIPLOMATIC
RETINUE
1) Personal Inviolability
Not liable for any form of arrest or
detention
Treat him with due respect and take all
steps to prevent any attack on his person,
freedom or dignity.
RA 75 punishes any person who
assaults, strikes, wounds, offers violence to

Appointment of Envoys
In the Philippines, the President
cannot be questioned
Sending state is not absolutely free in the
choice of its diplomatic representatives,
especially heads of mission BECAUSE the
receiving State has the RIGHT TO REFUSE
to receive as envoy of another State a person
whom it considers unacceptable,
To avoid embarrassment, sending State
may resort to an INFORMAL inquiry
(enquiry) to which the receiving State
169

Nachura Notes Constitutional Law

the person of the ambassador or minister


(except when in self-defense)
UN
CONVENTION
ON
THE
PREVENTION AND PUNISHMENT OF
CRIMES
AGAINST
INTERNATIONALLY
PROTECTED
PERSONS considers crimes against
diplomatic agents as international not
political in nature.
Diplomatic envoy may be arrested
temporarily in case of urgent danger (acts of
violence) which makes it necessary to put
him under restraint for the purpose of
preventing similar acts; must be released and
sent home in due time.
2) Inviolability of Premises and Archives
Premises occupied and private residence
Agents may not enter w/o consent of the
envoy
Exception: extreme cases of necessity
fire; imminent danger
Cannot be entered or searched
Goods, records, archives cannot be
detained by local authorities even under
process of law
Service of writs, summons, orders or
processes within the premises of the mission
or residence of the envoy is prohibited
Even if a fugitive takes refuge but
must be surrendered upon demand by local
authorities EXCEPT: Right of asylum
exists
N/A when the ambassador himself
request local police assistance
Vienna Convention receiving State has
the special duty to protect diplomatic
premises against invasion, damage or any
act tending to disrupt the peace and dignity
of the mission.
Immune from search, requisition,
attachment or execution
1) Premises
2) Furnishings
3) Other property thereon
4) Means of transport of the mission

5) Archives
6) Documents
7) Papers
8) Correspondence of the mission
Unless the treaty is recognized by treaty
or local usage envoy should not permit
the premises of his mission or his residence
to be used as a place of asylum for fugitives
from justice.
But he must, in the interest of humanity,
afford temporary shelter to persons in
imminent peril of their loves, such as those
feeling from mob violence.
3) Right of Official Communication
As such, diplomatic pouch and
diplomatic couriers also enjoy inviolability.
4) Immunity from Local Jurisdiction
Diplomatic agent cannot be arrested,
prosecuted and punished for any offense he
may commit unless his immunity is waived.
Immunity from jurisdiction does not
mean exemption from local laws; it does not
presuppose a right to violate the laws of the
receiving State.
Diplomatic privilege does not import
immunity from legal liability but only
exemption from local jurisdiction.
Immunity from civil and administrative
jurisdiction of the receiving State
No civil action of any kind may be
brought against him
GR: properties are exempt from
garnishment, seizure for debt, execution, and
the like.
Exception:
1) Real action relating to private
immovable property situated in the territory
of the receiving state
Except: envoy holds it on behalf of the
sending State for the purpose of the mission.
2) Action relating to succession in which
diplomatic agent is involves as E/A/H/L as a
private person

170

Nachura Notes Constitutional Law

3) Action relating to any professional or


commercial activity exercised
by
diplomatic agent in the receiving State
outside his official function
Cannot
be
compelled
to
testify/deposition w/o consent of his
government
Immunity does not protect a public
official who commits unauthorized acts
unauthorized acts are not acts of Statehe
may be sued for such unlawful acts in his
PRIVATE CAPACITY
RA 75: declares as void any writ or
process issued out or prosecuted by any
person in any court of the Philippines, or by
any judge or justice, whereby the person of
any Ambassador or Public Minister of any
foreign state, authorized and received as
such by the President or and Domestic
Servant of any such ambassador or minister
is arrested or imprisoned, or his goods or
chattels distrained, seized, or attached and
penalties are imposed for violations.
N/A:
1) Citizens/inhabitants of the Philippines,
where the process is founded upon a debt
contracted before his employment in the
diplomatic service
2) Domestic servants of the ambassadors or
minister whose names are not registered
with the DFA
Children born to him while he possesses
diplomatic status are regarded as born in the
territory of his home State.
5) Exemption from Taxes and Customs
Duties
Vienna Convention
Exceptions:
1) Indirect taxes normally incorporated in
the price of goods/services
2) Dues and taxes on private immovable
property situated in the territory of the
receiving State, unless he holds it on behalf
of the sending State for purposes of the
mission.

3) Estate, succession or inheritance taxes


on investments in commercial ventures in
the receiving State
4) Dues and taxes on private income
having its source in the receiving State and
capital taxes on investments in commercial
ventures in the receiving State
5) Charges levied for specific services
rendered
6) Registration, court or record fees,
mortgage dues and stamp duty, with
respect to immovable property.
Exemption from all customs duties and
taxes of articles for the official use of the
mission and those for the personal use of the
envoy or members of the family forming
part of his household.
Baggage and effects are entitled to free
entry and normally exempt from inspection
Articles addressed to ambassadors,
ministers, charge daffaires are also exempt
from customs inspection.
6) Freedom of movement and travel in the
territory of the receiving State
7) Exemption from all personal services
and military obligations
8) Use of flag and emblem of the sending
State on the diplomatic premises and the
residence and means of transport of the head
of mission
Duration of Immunities/Privileges
From the moment he enters the territory
of the receiving State
Cease only the moment he leaves or on
expiry of a reasonable time in which to do
so
w/ regard to official acts immunity
shall continue indefinitely
privileges are available even in transitu
when traveling through a Third State on
the way to or from the receiving State
Waiver of Immunities

171

Nachura Notes Constitutional Law

1) Letters patent (letter de provision)


letter of appointment or commission which
is transmitted by the sending state to the
Secretary of Foreign Affairs of the country
where the consul is to serve
2) Exequatur authorization given to the
consul by the sovereign state, allowing him
to exercise his functions
- Functions
1) Commerce and navigation
2) Issuance of visa
3) Such as are designed to protect the
nationals of the appointing state
- Immunities and Privileges
1963 Vienna Convention on Consular
Relations
1) Freedom of communication in ciphers or
otherwise
2) Inviolability of archives NOT of
premises
3) Exempt from local jurisdiction for
offenses committed in the discharge of
official functions not of other offenses,
EXCEPT minor infractions
4) Exempt from testifying on official
communication or on matters pertaining to
consular functions
5) Exempt from taxes, customs duties,
military or jury service
6) Display national flag and emblem in the
consulate
Available to members of consular post,
families and private staff
May be waived by appointing state
- Termination of Consular Mission
1) Usual modes of terminating official
relationship
2) Withdrawal of the exequatur
3) Extinction of state
4) War
Severance of consular relations does not
necessarily terminate diplomatic relations.

GR: waiver cannot be made by the


individual concerned since such are not
personal to him.
Waiver by the government of the
sending State if it concerns the immunities
of the head of mission
Other cases, by the government or chief
of the mission
Waiver does not include waiver of
immunity with respect to execution of
judgment separate waiver necessary

Termination of Diplomatic Mission


1) Death
2) Resignation
3) Removal
4) Abolition of office
5) Recall by the sending state
6) Dismissal by receiving state
7) War between sending and receiving
8) Extinction of state
Consular Relations
- Consuls: State agents residing abroad for
various purposes, mainly in the interest of
commerce and navigation.
- Kinds
1) Consules missi professional and career
consuls; nationals of appointing state
2) Consules electi selected by appointing
state from its own citizens or among
national abroad
- Ranks
1) Consular General heads several
consular districts, or one exceptionally large
consular district
2) Consul takes charge of a small
district/town/port
3) Vice Consul assist the consul
4) Consular Agent entrusted with the
performance of certain functions by the
consul
- Appointment: 2 important documents
necessary before the assumption of consular
functions:

VI. TREATIES
Treaty

172

Nachura Notes Constitutional Law

- International
agreement
concluded
between States in written form and governed
by international law, whether embodied in a
single instrument of in 2 or more
instruments and whatever its particular
designation.
- Agreement between States including
international organizations of States
intended to create legal rights and
obligations of the parties.
- Executive agreement, under municipal
law, is not a treaty. But from the standpoint
of international law, equally binding as
treaties.
- Qatar vs. Bahrain: Minutes to a Meeting
and exchange of letters constitute an
international agreement creating rights and
obligations for the parties.

Generally, exercised by Head of State.


In the Philippines, President w/
concurrence by 2/3 of all members of the
Senate
3) Parties must freely given consent
Doctrine of Unequal Treaties imposed
through coercion or duress by a State of
unequal character is void.
4) Object and subject matter must be lawful
Within the commerce of nations and in
conformity with international law.
Doctrine of jus cogens customary
international law has the status of
peremptory norm of international law,
accepted and recognized by the international
community of states as a rule from which no
derogation is permitted.
A treaty which contravenes such
norms/rules may be invalidated.
Official torture of prisoners is violation
of principle of jus cogens (Human Rights
Cases vs. Marcos)
5) Ratification
in
accordance
with
constitutional processes of the parties
concerned
Concurrence in by at least 2/3 of all the
members of the Senate.

Form
- Article 2, 1969 Vienna Convention on
the Law of Treaties, treaties should be in
writing.
- Article 3, fact that treaty is unwritten
shall not affect its legal force.
- But that convention rules on matters
governed by international law independently
of convention shall apply and that
convention rules shall apply to the relations
of the States among themselves.
- 1969 Convention on the Law of Treaties
treaties executed between states
- 1986 Vienna Convention in Treaties for
International Organizations treaties
executed between States and International
Organizations

Treaties and Executive Agreements


Treaties

Executive
Agreements
Basic political issues Adjustment of detail
Changes in national carrying out wellpolicy
established national
policies
Permanent
Temporary
international
arrangements
arrangements

Requisites for Validity


1) Treaty-making capacity
Possessed by every state as attribute of
sovereignty
International organization, deemed to
possess such, may be limited by the purpose
and constitution of such organization.
2) Competence of the representative/organ
concluding the treaty

When there is a dispute as to whether or


not an international agreement is purely an
executive agreement, the matter is referred
to the Secretary of Foreign Affairs who will
then seek the comments of the SENATE
REPRESENTATIVE and the LEGAL

173

Nachura Notes Constitutional Law

ADVISER of the DFA and after


consultation with the Senate leadership, the
Secretary shall then make the appropriate
recommendations to the President.

Remains to be a party to the treaty as


long as reservation is compatible with the
object and purpose of the treaty.
4) Entry into Force
In such manner and on such date as it
may provide, or as the negotiating parties
may agree.
Absence of such provision, as soon as
consent of all the parties to be bound by the
treaty is established.
Consent deemed established:
1) Exchange of instruments of ratification
2) Deposit of such instrument with a named
depositary, coupled with the notification to
the contracting State of such deposit.
Registration with and publication by the
UN failure does not affect the validity of
the treaty; only that the unregistered
instrument cannot be invoked by any party
before any organ of the United Nations.

Treaty-making Process
1) Negotiations
Pleine pouvoirs
Even w/o such, it has been the general
practice to consider the following as
representatives of the State for treaty
negotiations:
1) Head of State
2) Head of Government
3) Foreign Minister
4) Head of diplomatic missions
5) Representative accredited by the State to
an international conference or to an
international organization
2) Signing of the Treaty
Principle of alternat order of the
naming of the parties and of the signatures
of the plenitpotentiaries is varied so that
each party is named and its plenipotentiary
signs first in the copy of the instrument to be
kept by it.
3) Ratification
Provisions of a treaty are formally
confirmed and approved by a State and by
which the State expresses its willingness to
be bound by the treaty
Philippines power to ratify is with the
President, subject to concurrence by 2/3 of
all the members of the Senate
Accession or Adhesion non-signatory
State becomes a party to the treaty; by
invitation or permission of the contracting
parties, a 3rd party who did not participate or
who did not ratify on time, may be bound by
a treaty.
Reservation: unilateral statement made
by a State when signing, ratifying,
accepting, approving or acceding to a treaty,
whereby it purports to exclude or modify the
legal effect of certain provisions of the
treaty in their application to the State.

When non-signatories may be bound by a


treaty
GR: treaties cannot impose obligations
upon States not parties to them. (Pacta tertiis
nocent nec prosunt)
Exception
1) Process of Accession or Adhesion
2) Most favored Nation Clause
contracting State entitled to the clause may
claim the benefits extended by the latter to
another State in a separate agreement.
3) Formal expression of customary
international law
4) Treaty expressly extends benefits to nonsignatory States
Fundamental principles
1) Pacta sunt servanda
Treaties must be observed in good faith.
If necessary, State must modify its
national legislation to make them conform to
the
treaty,
to
avoid
international
embarrassment
Philippines treaty may be invalidated
if contrary to Constitution
174

Nachura Notes Constitutional Law

Tanada vs. Angara: Treaties do not limit


or restrict sovereignty of a State; by their
voluntary act, States may surrender some
aspects of their power in exchange for
greater benefits granted by or derived from a
convention or pact.
2) Rebus sic stantibus
Contracting States obligations under a
treaty terminates when a vital or
fundamental change or circumstances
occurs, thus allowing a State to unilaterally
withdraw from a treaty, because of
disappearance of the foundation upon
which it rests.
Doctrine does not operate automatically,
there must be a FORMAL ACT OF
REJECTION, usually by the HEAD OF
STATE, with a statement of the REASONS
why compliance with the treaty is no longer
required.
Requisites
1) Change must be so substantial that the
foundation of the treaty must have altogether
disappeared
2) Change must have been unforeseen or
unforeseeable at the time of the perfection of
the treaty
3) Change must not have been caused by
the party invoking the doctrine
4) Doctrine must be invoked within a
reasonable time
5) Duration of the treaty must be indefinite
6) Doctrine cannot operate retroactively

Consent of all the parties is required


If allowed by the treaty itself, 2 States
may modify a provision only insofar as they
are concerned.
Termination of Treaties
1) EXPIRATION of the term or
WITHDRAWAL of a party
2) EXTINCTION of one of the parties
(bipartite treaties)
When the rights and obligations under
the treaty would not devolve upon the State
that may succeed the extinct State
3) MUTUAL AGREEMENT of ALL the
parties
4) DENUNCIATION or DESISTANCE
The right to give notice of termination or
withdrawal right of denunciation
5) SUPERVENING IMPOSSIBILITY of
performance
6) CONCLUSION of SUBSEQUENT
INCONSISTENT TREATY
7) LOSS of the subject matter
8) MATERIAL BREACH or violation
9) REBUS SIC STANTIBUS
10) Outbreak of WAR, unless the treaty
precisely relates to the conduct of war
11) SEVERANCE of diplomatic relations
12) Doctrine of JUS COGENS or emergence
of NEW PEREMPTORY NORM of general
international law which renders void any
existing treaty conflicting with such norm.
VII.
NATIONALITY
STATELESSNESS

Interpretation of Treaties
- Interpreted in good faith
- Ordinary meaning given to the terms
- In the light of its objects and purposes
- Consider:
1) Preamble
2) Text
3) Annexes
4) Agreements relating to the treaty
5) Subsequent agreements

AND

Nationality membership in a political


community with rights and duties
- Determination of a persons nationality
1930 Hague Convention on Conflict of
Nationality Laws
1) For each state to determine under its
own law who are its nationals
2) Question as to whether a person
possesses the nationality of a particular State

Amendment/Modifications

175

Nachura Notes Constitutional Law

shall be determined in accordance with the


law of that State.

4) legislative action
Policy in the Philippines- dual allegiance
is inimical to national interest and shall be
dealt with by law.
Resolution of conflicts in Multiple
Nationality Cases
1930 Hague Convention on the Conflict
of Nationality Law
1) A person having 2 or more nationalities
regarded as national by each of the States;
AND a state may not give diplomatic
protection to one of its nationals against a
State whose nationality that person
possesses.
2) If a person has more than one
nationality, he shall within a 3rd state, be
treated as if he had only one; the third State
shall recognize exclusively either the
nationality of the State in which he is
habitually and principally resident or the
nationality of the State with which he
appears in fact to be most closely connected
Principle of Effective Nationality
3) If a person, without any voluntary act of
his won, possesses double nationality, he
may renounce one of them with the
permission of the State whose nationality he
wishes to surrender and, subject to the laws
of the State concerned, such permission
shall not be refused if that person has his
habitual residence abroad.

- Mode of Acquisition of Nationality


1) Birth
Jus sanguinis (by blood)
Jus soli (by place of birth)
2) Naturalization
Accomplished through:
1) Marriage
2) Legitimation
3) Election
4) Acquisition of domicile
5) Appointment to government office
6) Grant on application
In the Philippines
1) Judicial process
2) Legislative process
3) Election
4) Marriage
No obligation on the part of the State of
his nationality to recognize a persons newly
acquired nationality.
3) Repatriation recovery of nationality by
individuals who were natural-born citizens
of a State but who had lost their nationality.
4) Subjugation
5) Cession
Loss of Nationality
1) Release
2) Deprivation
3) Renunciation
4) Substitution

Statelessness
- Status of having no nationality, as a
consequence of being BORN WITHOUT A
NATIONALITY or as a result of
DEPRIVATION
or
LOSS
OF
NATIONALITY.
- 1954 Convention Relating to the Status
of Stateless Persons contracting states
agreed to grant to stateless persons within
their territories treatment at least as
favorable as that accorded to their nationals
with respect to:

Multiple Nationality
Possessed of mope than one nationality
because of the concurrent application to him
of the municipal laws of 2 or more states
claiming as their national.
Arise by:
1) Concurrent application to him of the
principles of jus sanguinis and jus soli
2) naturalization w/o renunciation of the
original nationality
3) legitimation
176

Nachura Notes Constitutional Law

1. freedom to practice their religion and


freedom as regards the religious education
of their children
2. access to courts
3. rationing of products in short supply
4. elementary education
5. public relief and assistance
6. labor legislation and social security
- Contracting states also agreed to grant to
stateless persons within their territories as
favorable as possible, in any event, not less
favorable than that accorded to aliens:
1. acquisition of movable and immovable
property
2. right of association in non-political and
non-profit-making associations and trade
unions
3. gainful employment and practice of
liberal profession
4. housing and public education other than
elementary
5. freedom of movement

Alien criminals
Home state of such aliens has the
obligation to receive them
Alien must accept the institutions of the
State. He may be deprived of certain rights.
Local laws may grant him certain rights
and privileges based on:
1. reciprocity
2. most-favored-nation treatment
3. national treatment (equality between
nationals and aliens in certain matters)
privileges may be revoked, subject to
treaty stipulations.
Doctrine of State Responsibility
a State is under obligation to make
reparations to another State for the failure to
fulfill its primary obligation to afford, in
accordance with international law, the
proper protection due to the alien national of
the latter State.
The State may be held liable for injuries
and damages sustained by the alien if:
1. Act or omission constitutes an
international delinquency
International Standard of Justice
standard of reasonable state and notions
accepted in modern civilization.
1. laws of the State fall below the
international standard, it is no defense that
such laws are applicable not only to aliens
but to nationals doctrine of equality of
treatment not applicable
2. independence of the courts of the State
and unless the misconduct is extremely
gross, the law does not lightly hold a State
responsible for any error committed by the
Courts
2. Act or omission is directly or indirectly
imputable to the State
Even when the laws of the State conform
to International standard, if it does not make
reasonable efforts to prevent injury to alien
or having done so unsuccessfully, fails to
repair such injury.

VIII. TREATMENT OF ALIENS


General Rule: Flowing from its right of
existence and as an attribute of sovereignty,
no State is under obligation to admit aliens.
Power to regulate the entry and stay of
aliens, and the State has the right to expel
aliens
from
its
territory
through
DEPORTATION or RECONDUCTION.
DEPORTATION or EXPULSION
Menace to the security of the State
Entry was illegal
Permission to stay has expired
Violated any limitation or condition
prescribed for his admission and continued
stay.
RECONDUCTION
Forcible conveying of aliens back to
their home States
Destitute aliens
Vagabonds
Aliens without documents

177

Nachura Notes Constitutional Law

agrees to limit himself to the remedies


available under the laws of the local state.
Does not mean that the aliens state is
deprived of the right to protect or vindicate
its interest in case they are injured in another
state, as such waiver can be legally made by
the state, not the alien.
2. Resort to Diplomatic Protection
After exhaustion of local remedies, alien
must avail himself of the assistance of his
state.
Tie of nationality time of injury until
time international claim is finally settled.
UN may file diplomatic claim on behalf
of its officials.
European Commission on HR and also
contracting states other than the state of the
injured individual may bring alleged
infractions of the European Convention on
HR before the European Court of HR.
3. Modes of Enforcement of Claims
Negotiations or other modes of settling
dispute.
When responsibility is established:
1. Reparation
2. Satisfaction
3. Compensation
4. all three

The act or omission that may give rise to


liability may either be:
1. acts of government officials
primary agents
give rise to direct state responsibility
acts of high administrative officials
officer acts beyond the scope of his
authority, his act is likened to an act of a
private individual.
Acts of a minor or subordinate official to
give rise to liability, there must be a denial
of justice or something which indicates
complicity of the State in, or condonation of,
the original wrongful act, such as an
omission to take disciplinary action against
the wrongdoer.
2. acts of private individuals
For State to be liable, there must be
actual or tacit complicity of the government
in the act, before of after it, either by
directly ratifying or approving it, or in the
patent or manifest negligence in taking
measures to prevent injury, investigate the
case, punish the guilty or to enable the
victim to pursue his civil remedies against
the offender.
The claimant has the burden of proving.
3. Injury to the claimant State indirectly
because of damage to its national

Extradition
- surrender of a person by one state to
another state where he is wanted for
prosecution or punishment (if already
convicted)

Enforcement of Aliens Claim


1. Exhaustion of Local Remedies
Because the State must be given an
opportunity to do justice in its own regular
way and without unwarranted interference
with its sovereignty by other states.
N/A if:
1. no remedies to exhaust, e.g. laws are
intrinsically defective
2. courts are corrupt
3. no adequate machinery
4. international delinquency results from an
act of state
Calvo Case: alien waives or restricts his
right to appeal to his own state in connection
with any claim arising from the contract and

Basis
treaty
local state may grant asylum, or
if there is surrender, the same is merely a
gesture of comity
Deportation
expulsion of an alien who is considered
undesirable by local state, usually but
necessarily to his own state

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prima facie case against the fugitive


according to its own laws.
If
there
is,
WARRANT
IF
SURRENDER and fugitive delivered to the
state of refuge.
Sui generic and not criminal proceedings
no automatic application of the Bill of
Rights
Do not involve the question of guilt or
innocence of the person to be extradited
Savarkar Case: Abduction of the fugitive
in the state of refuge is not allowed
violation of the territorial integrity of the
state of refuge; BUT if effected with the
help of the nationals of the state of refuge
itself, then the state of refuge cannot later
demand the return of the fugitive.

unilateral act of the local state and is


made in its own interests

Extradition
surrender of a fugitive by one state to
another where he is wanted for prosecution
or punishment.
Surrender is made at the request of the
latter state on the basis of a treaty.

Fundamental Principles:
on CONSENT treaty or
goodwill
2. PRINCIPLE OF SPECIALTY fugitive
who is extradited may be tried only for the
crime specified in the request for extradition
and included in the list of offenses in the
extradition treaty.
State of refuge has the right to object to
a violation
Non-list types of extradition treaties
offenses punishable under the laws of both
states by imprisonment on 1 year or more
are included among extraditable offenses.
3. ANY PERSON may be extradited
4. POLITICAL
AND
RELIGIOUS
OFFENDERS are generally not subject to
extradition
5. Offense must have been COMMITTED
WITHIN the territory or AGAINST THE
INTERESTS of the demanding state
6. RULE OF DOUBLE CRIMINALITY.
Act for which extradition is sought must be
punishable in both the requesting and
requested states.
1. Based

RPs Extradition Treaties


non-list types of double criminality
approach (no traditional listing of crimes):
1. Australia
2. Canada
3. Indonesia
4. Micronesia
5. Switzerland
Letters Rogatory
- Formal communication from a court in
which an action is pending, to a foreign
court, requesting that the testimony of a
witness residing in such foreign jurisdiction
be taken under the direction of the court,
addressed and transmitted to the court
making the request.
- Power to issue letters rogatory is
inherent in courts of justice

Procedure for Extradition


1. REQUEST through diplomatic channels,
accompanied by necessary papers
Identity of wanted person
Crime
alleged
to
have
been
committed/convicted
2. JUDICIAL INVESTIGATION, after
receipt of the request, state of refuge shall
investigate to ascertain if the crime is
covered by the extradition treaty and if there

Asylum
- Power of the state to allow an alien who
has sought refuge from prosecution or
persecution to remain within the territory
and under its protection
- Never been recognized as a principle of
international law.

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Nachura Notes Constitutional Law

Principles on Asylum
Territorial Asylum
Exists when stipulated in a treaty or
justified by established usage.
May depend on the liberal attitude of the
receiving state, territorial supremacy
Diplomatic Asylum
Exists when stipulated in a treaty or
justified by established usage.
Within narrowest limits or when the
life or liberty of the person is threatened by
imminent violence.

- Refugee Convention of 1951: does not


deal with admission but with nonrefoulment (no contracting state shall expel
or return a refugee in any manner
whatsoever, to the frontiers of territories
where his life or freedom is threatened. The
state is under obligation to grant him
temporary asylum)
IX. SETTLEMENT OF DISPUTES
International Disputes
Actual disagreement between States
regarding the conduct to be taken by one of
them for the protection or vindication of the
interests of the other.
Situation initial stage of dispute

Rule in the Philippines


Generally, diplomatic asylum cannot be
granted except to members of the official or
personal
household
of
diplomatic
representatives
On humanitarian grounds may be
granted to fugitives, whose lives are in
imminent danger from mob violence but
only during the period when active danger
persists.

Pacific or Amicable Modes


Article 3 of the UN Chapter
Parties to any dispute, the continuance of
which is likely to endanger the maintenance
of international peace and security shall seek
a solution by:
1. Negotiation
States settle their differences through an
exchange of views between diplomatic
agencies.
2. Enquiry
Ascertainment of pertinent facts and
issues
3. Tender of Good Offices
Where a third party, either alone or in
collaboration with others, offers to help in
the settlement of a dispute.
When the offer is accepted exercise
of good offices
4. Mediation
Third party offers to help with a
solution, usually based on compromise.
It offers a solution while good offices
brings the parties together.
5. Conciliation
Active participation of a third party,
solicited by the disputants, in an effort to
settle the conflict.

Refugees
- Any person who is outside the country
of his nationality, or if he has no nationality,
the country of his former habitual residence,
because he has or had well-founded fear of
prosecution by reason of his race, religion,
nationality or political opinion and is unable
or, because of fear, is unwilling to avail
himself of the protection of the government
of the country of his nationality, or if he has
no nationality, to return to the country of his
former habitual residence.
- Essential Elements:
1. outside the country of his nationality or
if stateless, outside the country of his
habitual residence
2. lacks national protection
3. fears persecution
- treated as a stateless individual de jure
or de facto

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Nachura Notes Constitutional Law

Parties may of their own volition or at


the instance of the organization itself,
assume the obligation of settling the dispute.

Conciliators recommendations are not


binding.
6. Arbitration
Solution of a dispute by an impartial
third party usually a tribunal created by the
parties under a charter known as a
compromis.
7. Judicial Settlement
Similar to arbitration:
1. nature of the proceedings
2. binding character of the award
Differences:

Hostile Methods
- Pacific methods have failed.
- Includes:
1. Severance of Diplomatic Relations
2. Retorsion unfriendly but lawful,
coercive acts done in retaliation for unfair
treatment and acts of discrimination of
another state. (e.g. levy of high
discriminatory tariffs on goods)
3. Reprisal unfriendly and unlawful acts
in retaliation for reciprocal unlawful acts of
another state:
a. Freezing of the assets of the nationals of
the other state
b. Embargo forcible detention or
sequestration of vessels and other property
of the offending state.
c. Pacific blockade prevention of
entry/exit from the ports of the offending
state of means of communication or
transportation n(could be violative of UN
Charter)
d. Non-intercourse suspension of all
intercourse with the offending state, in
matters of trade and commerce
e. Boycott concerted suspension of
commercial relations with the offending
state, particularly, the refusal to purchase
goods.
4. Intervention
5. other Peaceful Means

Judicial Settlement
Arbitration
Judicial body is pre- Arbitrary body is ad
existing
hoc
Jurisdiction is usually
compulsory
Law
applied
is
independent of the
will of the parties
Judicial settlement of
international dispute
is now lodges in the
International Court of
Justice
Optional Jurisdiction Clause
ICJs jurisdiction is based on consent of
the parties.
BUT Article 36 of the Statute of the
International Court of Justice provides that
states/parties to the Statute recognize the
jurisdiction of the Court over disputes
concerning:
1. interpretation of a treaty
2. any question of international law
3. existence of any fact which would
constitute a breach of international
obligations
4. nature or extent of the reparation to
be made for such breach
8. Resort to Regional Agencies or
Arrangements

Role of the United Nations


- Methods of settling disputes do not
succeed, UN may be asked or may decide on
its own authority to take a hand in the
settlement
- Security Council or the General
Assembly
Security Council

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Nachura Notes Constitutional Law

- Intervene in all disputes affecting


international peace and security and in all
disputes which although coming under the
domestic jurisdiction clause, have been
submitted to it by the parties for settlement.
a. Security Council will recommend
appropriate measures; consider amicable
measures or refer matter to ICJ;
b. If unsuccessful, Security Council may
recommend such terms of settlement as it
may deem appropriate; and
c. If the terms of settlement are rejected,
Security Council may take:
Preventive Action
Not involving use of armed force
E.g. complete or partial interruption
of economic relations, and of rail, sea, air,
postal, telegraphic, radio or other means of
communications and severance of
diplomatic relations.
Enforcement Action
By air, sea or land forces as may be
necessary
to
maintain
or
restore
international peace and security including
demonstrations, blockades and other
operations by air, sea or land forces of
members of the UN.
Member state is obliged to render
assistance in carrying out the measures
decided upon by the Security Council.

overpowering the other and imposing such


conditions of peace as the victor pleases.
Does not mean the mere employment of
force.
If a nation declares war, war exists
though no force has yet been used.
Outlawry of War
Condemnation of war on an international
scale
Covenant of the League of Nations:
conditions for the right to go to war
Kellogg-Briand Pact of 1928 or General
Treaty for Renunciation of War: forbade war
as an instrument of national policy
Charter of the United Nations: prohibits
the threat or use of force against the
territorial integrity or political independence
of a state.
Commencement of War
a. Declaration of war
b. Rejection of an ultimatum
c. Commission of an act of force regarded
by one of the belligerents as an act of war
Effects of Outbreak of War
(1) Laws of peace cease to regulate the
relations between the belligerents and are
superseded by laws of war;
Third states are governed by laws of
neutrality in their relations with the
belligerents;
(2) Diplomatic and consular relations are
terminated;
Representatives are allowed to return to
their countries;
(3) Treaties of political nature are
automatically cancelled, except those
intended to operate during the war;
Multipartite treaties dealing with
technical or administrative matters are
merely
suspended
as
between
belligerents.
(4) Individuals are impressed with enemy
character:

General Assembly
- If the Security Council because of lack
of unanimity fails to exercise its primary
responsibility to maintain peace and
security, the General Assembly shall
consider
making
recommendations
including the use of armed forces when
necessary.
X. WAR AND NEUTRALITY
War
Contention between 2 states, through
their armed forces, for the purpose of

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Nachura Notes Constitutional Law

a. Nationality test nationals of the other


belligerent, wherever they may be
b. Domicillary test domiciled aliens in
the territory of the other belligerent on the
assumption that they contribute to its
economic resources
c. Activities test if being foreigners, they
participate in the hostilities in favor of the
other belligerent
(5) Corporations and other juridical persons
are considered enemies:
a. where the controlling stockholders are
nationals of the other belligerent OR
b. if incorporated in the territory or under
the laws of the other belligerent and may not
be allowed to continue operations.
(6) Enemy public property found in the
territory of the other belligerent at the
outbreak of the war is subject to
confiscation;
Private property is subject to requisition.
State may, in time of war, authorize and
provide for seizure and sequestration,
through executive channels, of properties
believed to be enemy-owned, if adequate
provision is made for their return in case of
mistake.

resist the invading troops without having


had time to organize themselves, provided
they carry arms openly and observe the laws
and customs of war;
e. Franc tireursm, or guerillas, provided
they are commanded by a person responsible
for his subordinates, wear a fixed distinct
emblem recognizable at a distance, carry
their arms openly, and conduct their
operations according to the laws and
customs of war; and
f. Officers and crew of merchant vessels
who forcibly resist attack.
Rights of Prisoners of War
1949 Geneva Convention
Treated humanely
Not subject to torture
Allowed to communicate with their
families
Receive food, clothing. Religious
articles, etc.
Spies
Individual is deemed a spy only if,
a. Acting clandestinely or under false
pretenses
b. He obtains or seeks to obtain
information in the zone of operations of a
belligerent
c. With the intention of communicating it
to the hostile party.
When captured, may be proceeded
against under the municipal law of the
belligerent.
Although under the Hague Convention,
may not be executed without a trial.
But if captured after he has succeeded in
rejoining his army, must be treated as a
prisoner of war.
Scouts or soldiers in uniform who
penetrate the zone of operations of the
hostile army to obtain information are NOT
spies.

Participants in War
1. Combatants those who engage directly
in the hostilities
2. Non-combatants those who do not
Combatants may be:
1. Non-privileged: like spies, who under
false pretenses try to obtain vital information
from the enemy ranks and who, then caught,
are not considered prisoners of war.
2. Privileged : who, when captured, enjoy
the privileges of prisoners of war:
a. Regular armed forces
b. Ancillary services
c. Accompany the armed forces
d. Levees en masse, inhabitants of
unoccupied territory who, on approach of
the enemy, spontaneously take up arms to

Mercenaries
183

Nachura Notes Constitutional Law

Protocol I to the 1949 Geneva


Convention
Mercenaries shall not have the rights of
combatants or of prisoners of war.
To be considered a mercenary
a. The person must be a specially recruited
to fight for a particular armed conflict
b. Must take direct part in the hostilities
c. Motivated essentially by the desire for
personal gain and is provided material
compensation substantially in excess of that
promised or paid to combatants of similar
ranks and functions in the armed forces of
that party.

Belligerent Occupation
Temporary military occupation of the
enemys territory during the war.
Maintains effective control and military
superiority and being able to send sufficient
forces to assert its authority within a
reasonable time.

Conduct of Hostilities.
Three Basic Principles
Principle of Military Necessity
The belligerent may employ any amount of
force to compel the complete submission of
the enemy with the least possible loss of
lives, time and money.
Principle of Humanity
Prohibits the use of any measure that is not
absolutely necessary for the purposes of the
war.
Humanitarian Convention in Armed Conflict
The right of the parties to adopt means of
injuring the enemy is not unlimited
Parties are prohibited to launch attacks
against the civilian population as such
Distinction must be made at all times
between persons taking part in the hostilities
and members of the civilian population, to
spare the latter as much as possible.
Enforcement action undertaken by UN is not
war in the traditional sense, as it is
employed only to maintain international
peace and security, humanitarian rules of
warfare should still govern.

Rights and Duties of Belligerent


Occupant
1. Re-establish or continue the processes of
orderly administration, including enactment
of laws.
2. Adopt measures for the protection of the
inhabitants
3. Requisition (sequester) goods with
proper cash or future payment and services
in non-military projects (Conscription is
prohibited)
4. Demand taxes and contributions to
finance military and local administrative
needs
Foraging: the actual taking of provisions
for men and animals by the occupation
troops where lack of time makes it
inconvenient to obtain supplies by usual or
ordinary methods.
Compensation must be paid at the end of
the war.
5. Issue legal currency
6. Use enemy property, public or private,
but private property is subject to
indemnification or return at the end of the
war.

Principle of Chivalry
Prohibits the belligerents from the
employment of perfidious or treacherous
methods.

Right of Angary
Right of belligerent state, in cases of
extreme necessity, to destroy or use neutral

Effects
No change in sovereignty, but exercise of
the powers of sovereignty is suspended.
Political laws, except the laws on treason,
are suspended.
Municipal laws remain in force.

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Nachura Notes Constitutional Law

property on its own or on enemy territory or


on the high seas

Temporary cessation of hostilities


By agreement of the local commanders
For the purposes of gathering of the
wounded and burial of the dead

Non-Hostile Intercourse
Flag of Truce
White in color desire to communicate
with the enemy
Agent
(parlementaire)
enjoys
inviolability and is entrusted with the duty
of negotiating with the enemy.

Armistice
Suspension of hostilities within a certain
area or in the entire region of the war
Agreed upon by the belligerents
Usually for the purpose of arranging the
terms of the peace

Cartels
Agreements to regulate intercourse
during the war
Usually on the exchange of prisoners of
war

Cease-Fire
Unconditional stoppage of hostilities
Usually ordered by an international body

Truce
Conditional
purposes

Passport
Written permission given by the
belligerent government
To the subjects of the enemy
To travel generally in the belligerent
state

cease-fire

for

political

Capitulation
Surrender of military forces, places or
districts in accordance with rules of military
honor.

Termination of War
1. Simple Cessation of Hostilities
Principle of uti possidetis with respect to
property and territory possessed by the
belligerents is applied.
2. Conclusion of a negotiated treaty of
peace
3. Defeat of one of the belligerents
Followed by a dictated territory of peace
or annexation of conquered territory.

Sage-conduct
Permission given to an enemy subject or
to an enemy vessel
Allowing passage between defined
points
Safeguard
Protection granted by a commanding
officer to enemy persons or property within
his command
Usually with an escort or convoy of
soldiers providing the needed protection.

Postliminium
Revival or reversion to the old laws and
sovereignty of territory which has been
under belligerent occupation once control of
the belligerent occupant is lost over the
territory affected.

Licenses to Trade
Permission given by competent authority
to individuals to carry on trade though there
is state of war.

Distinguished from Uti Possidetis


Uti Possidetis alloaws retention of
property or territory in the belligerents

Suspension of Hostilities
Suspension of Arms

185

Nachura Notes Constitutional Law

actual possession at the time of the cessation


of hostilities.
War Crimes
- Acts for which soldiers or other
individuals may be punished by the enemy
on capture of the offender.
- War Criminal: any person civilian or
member of the armed forces of the State,
who commits an act that violates a rule of
international law governing armed conflicts
Neutrality and Neutralization
Neutrality
Non-participation in a war between
contending belligerents
Exists only during war
Governed by the law of nations
Naturalization
Result of a treaty wherein conditions of the
status are agreed upon by the neutralized
state and other signatories
Exists both in times of war and of peace
Governed by the agreement entered into by
and between the parties
A permanently neutral or neutralized
state is one whose independence or integrity
is guaranteed by other states, under the
condition that such state binds itself never to
participate in an armed conflict or military
operation except for individual self-defense.
In Cold War, the states which sided with
neither the democracies nor the communists
were referred to as neutralist or non-alligned
states.
Non-belligerency did not take part in
military operations but which did not
observe the duties of a neutral.
o Mid-way between a neutral and a
belligerent
o Not recognized in international law

Neutrality under UN Charter

o Because of enforcement action that UN


may undertake, absolute neutrality cannot
exist among UN Members
Rules of Neutrality
Neutrals have the right and duty:
Abstain from taking part in the hostilities
and from giving assistance to either
belligerents by:
Sending of troops
Official grant of loans
Carriage of contraband
Contraband goods which, although neutral
property, may be seized by a belligerent
because they are useful for war and are
bound for a hostile destination.
i.
Absolute useful for war under all
circumstances (guns/ammunitions)
ii.
Conditional have both civilian and
military utility (food and clothing)
iii.
Free list exempt from the law on
contraband for humanitarian reasons
(Medicines)
Doctrine of Ultimate Consumption
goods intended for civilian use which may
ultimately find their way to and be
consumed by belligerent forces may be
seized on the way.
Doctrine of Infection innocent goods
shipped with contraband may also be seized
Doctrine
of
continuous
voyage/continuous transport goods
reloaded at an intermediate port on the same
vessel or reloaded on another vessel or other
forms of transportation may also be seized
Doctrine of Ultimate Consumption
Engaging in Unneutral Services acts of
a more hostile character than carriage of
contraband or breach of a blockade,
undertaken by merchant vessels of a neutral
state in aid of any of the belligerents.
To prevent its territory and other resources
from being used in the conduct of hostilities
To acquiesce to certain restriction and
limitations which the belligerents may find
necessary to impose:
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Nachura Notes Constitutional Law

Blockade hostile operation where vessels


and aircraft of one belligerent prevent all
other vessels (including neutral states) from
leaving or entering the port or coasts of the
other belligerent; Purpose shut off the
place from international commerce and
communications with other states. (Pacific
Blockade: applies only to vessels of
blockaded stated, not to those of others)
To be valid:
1. blockade must be binding (duly
communicated to neutral states)
2. effective
3. established by competent authority of
belligerent government
4. limited only to the territory of the enemy
5. impartially applied to all states
*LIABILITY OF A NEUTRAL VESSEL
TO CAPTURE FOR BREACH OF THE
BLOCKADE IS CONTINGENT ON
ACTUAL
OR
PRESUMPTIVE
KNOWLEDGE OF THE BLOCKADE.
Visit and Search to the authority of the prize
courts
Belligerent warships and aircraft have the
right to visit and search neutral merchant
vessels to determine whether they are in any
way connected with the hostilities.
Vessels captured for engaging in hostile
activities are considered as prize.
They may not be confiscated summarily but
brought before prize court a tribunal
established by a belligerent under its own
laws; in its territory or territory of its allies;
applying international law in the absence of
special municipal legislation.
Termination of Neutrality
(1)
Conclusion of a treaty or peace
between belligerents
(2)
Neutral state itself joins war

187