Professional Documents
Culture Documents
I. GENERAL PRINCIPLES
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
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
Characteristics:
Permanence
Exclusiveness
Comprehensiveness
Absoluteness
Indivisibility
Inalienability
Imprescriptibility
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
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.
Limitations
1. Bill of Rights
2. Courts may annul improvident exercise
of police power
Police Power
Power of promoting public welfare by
restraining and regulating the use of liberty
and property.
OF
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
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.
Jurisdiction
RTC
Power of Taxation
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.
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.
10
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
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.
statutory,
not
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
12
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.
13
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
1. Substantive
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
14
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
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
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
Particularity of Description:
(1) Readily identify the properties to be
seized and thus prevent them from seizing
the wrong items; and
16
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.
17
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.
18
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.
Plain View
- Object is plainly exposed to sight.
- Where the object seized is inside a
closed package, the object is not in plain
19
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.
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
20
21
22
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
24
25
Non-impairment Clause
26
27
28
29
30
31
32
33
34
35
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.
36
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
37
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
39
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
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
41
42
- 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
- Effects of Denaturalization: if the
ground affects the intrinsic validity of the
43
44
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.
45
46
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
3) Each party, organization or coalition
shall be entitled to not more than 3 seats
4 inviolable parameters:
47
48
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 4th
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
the same, excepting such parts as may, in its
judgment, affect national security;
Officers
Senate elects its President
House elects its Speaker
49
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
necessary before the case may be brought to
the Court.
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
e. No law granting a title of royalty or
nobility shall be passed
- Implied
50
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.
51
52
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
53
54
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
Rules on Succession
- Vacancy at the BEGINNING of term
DEATH
PERMANENT
55
or VP-elect
shall
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.
Temporary Disability
President transmits to Senate President
and Speaker
56
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
d. Officers of the armed forces from the
rank of colonel or naval captain
57
58
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
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.
- President may exercise powers conferred
by law upon Cabinet members or
subordinate executive officers.
59
60
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
- May grant Amnesty with concurrence of
a majority of all members of the Congress
61
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
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
- No treaty or international agreement
shall be valid and effective unless concurred
Informing Power
- Address Congress at the opening of its
regular session
- May appear before it at any other time
X. JUDICIAL DEPARTMENT
Judicial Power
- Duty of the courts of justice to settle
actual controversies involving rights which
62
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
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
6. members of Judiciary have security of
tenure
other
other
63
1)
2)
3)
4)
Regular Members
Representative of IBP
Professor of Law
Retired justice of SC
Representative of private sector
Secretary ex-officio: clerk of SC
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
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
modified or reversed except by the court
sitting en banc
64
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
Payment of dues is a necessary
consequence of membership in the IBP, of
which no one is exempt
65
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
NOTE: only cases involving dismissal of
judges of LCs are required to be decided by
the Court en banc.
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
- Must not sacrifice for expediencys sake
the fundamental requirements of due process
66
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
Rotational Scheme of Appointments
67
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.
- Judgment of the COA are not reviewable
by ordinary writ of error or appeal by
certiorari to the SC. Only when COA acts
68
of
the
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
shall remain under permanent status in their
position. Upon promotion or transfer to
Scope of the CS
- Embrace ALL branches, subdivisions,
instrumentalities and agencies of the
Government, including GOCCs with
original charter
- with original charter refers to
corporation chartered by special law as
69
70
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
EEs Career Service Law; Non-
71
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
72
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.
73
74
75
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
76
77
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
78
* 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
Impeachment of the Committee, or override
its contrary resolution.
79
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
Only instance when Sandiganbayan may
exercise jurisdiction over a private
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
Mandatory for the Sandiganbayan to
suspend any public officer against whom a
80
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
81
82
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.
Natural Resources
83
84
85
86
87
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
companies, consisting in the exclusive right
to carry on a particular business or trade,
88
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
3. living wage
- They shall also participate in policy and
decision-making processes affecting their
89
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.
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.
90
91
92
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.
Flag
Red, white and blue
A sun and 3 stars
As consecrated and honored by the
people and recognized by law.
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.
93
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.
- 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,
94
95
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.
3. Quasi-Public: private corporation that
renders public service or supplies public
wants.
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
96
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.
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
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.
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.
Roles of Municipal Corporations in the
Philippines
97
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
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:
Requisites/Limitation on Creation or
Conversion
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
98
99
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.
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
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
private
or
ministerial,
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
100
3.
4.
5.
6.
7.
8.
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
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.
101
- 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.
102
103
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.
104
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
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
105
Corporate Powers
- LGUs shall enjoy full autonomy in the
exercise of their proprietary functions and in
the management of their economic
enterprises
106
107
108
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
emergency. Provided they do not derive
monetary compensation.
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
109
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
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.
110
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
111
Resignation
- deemed effective upon acceptance by the
ff:
1. President
1. power to appoint
2. power to suspend
3. power to dismiss
Discipline
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
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
112
PROVINCIAL/HIGHLY
URBANIZED
CITY OR INDEPENDENT COMPONENT
CITY ELECTIVE OFFICIAL FILED
BEFORE OFFICE OF THE PRESIDENT
- 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
113
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
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
114
V.
INTER-GOVERNMENTAL
RELATIONS
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
115
1.
2.
3.
4.
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.
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.
116
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.
INITIATIVE
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.
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
Limitations
On Local Initiative
1. not be exercised more than once a year
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.
On the Sanggunian
117
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.
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.
Katarungang Pambarangay
Lupong Tagapamayapa
Punong barangay as chairman
10 to 20 members
Constituted every 3 years
Powers of the Lupon
1. Exercise administrative supervision over
the conciliation panels
118
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
panlalawigang
pederasyon
4. special
metropolitan
political
subdivision
pangmetropolitang
pederasyon
5. on national level pambansang
pederasyon
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
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.
Sangguniang Kabataan
- Creation: There shall be in every
barangay a Sangguniang Kabataan
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.
League of Municipalities
Organized for the primary purpose of
ventilating, articulating and crystallizing
issues affecting municipal government
Katipunan ng Kabataan
Shall be composed of:
119
120
121
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
Qualifications
may be raised in quo-warranto
proceeding against proclaimed winner
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
122
Kinds
1. Statutes
2. Rules, regulations or orders
3. Determinations, decisions and orders
4. Body of doctrines and decisions
Administration
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.
Kinds
1. Internal legal side of public
administration
2. External deals with problems of
government regulation
123
OF
ADMINSITRATIVE
124
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
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
Determinative Powers
1. Directing
Power of assessment of BIR and
Customs
2. Enabling
Permit or to allow something which the
law undertakes to regulate
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
125
126
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
127
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
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
Corollary Principle
1. Doctrine of Prior Resort/ Doctrine of
Primary Administrative Jurisdiction
No Where there is competence or
jurisdiction vested upon an administrative
128
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
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.
129
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
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
130
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)
131
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
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
132
Legal Effect
- Those that affect the public are valid,
binding and with full legal effect.
- For the protection of the public.
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
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.
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.
- Principle of public policy on which de
facto doctrine is based.
IV. COMMENCEMENT OF OFFICIAL
RELATIONS
Official relations are commenced:
1) Appointment
2) Election
Appointment
133
AD-INTERIM Appointment
Nomination by President
Issuance of the Commission
Acceptance by the appointee
Confirmation by COA
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
3) Officers of the AFP, from rank of
colonel or naval captain
4) Officers whose appointments are vested
in the President under the Constitution.
134
135
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
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
136
1)
2)
3)
4)
5)
6)
7)
Promotion
Appointment through Certification
Transfer
Reinstatement
Detail
Reassignment
Reemployment
Transfer
- Movement from one position to another
which is of equivalent rank, level or salary
without break in service.
Promotion
137
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:
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
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 +
retirement and other benefits; in lieu of
separation pay, may be considered for
employment (Proclamation No. 3)
V. POWERS AND DUTIES OF PUBLIC
OFFICERS
Authority of Public Officers
138
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.
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
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
139
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
regulation or within a reasonable period if
none is fixed
Liability on Contracts
personally entered
exceeded his authority
without
Command Responsibility
Head of a department or a superior
officer shall not be civilly liable for the
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
or
1.
2.
3.
4.
5.
Right to Office
Right to Salary
Right to Preference in Promotion
Right to Vacation and Sick Leave
Right to Maternity Leave
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
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.
141
142
143
144
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
145
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
Court may validly order the preventive
suspension of officer (since removal of
office is within the power of the Courts)
Appeal
Made within 15 days from receipt of the
decision
146
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
Abandonment
Voluntary relinquishment of an office by
the holder with the intention of terminating
his possession and control
Species of resignation
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
147
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
(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
148
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.
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
149
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
International Law
Not imposed but
adopted by states as a
common rule of
action.
Derived from such
sources as:
international
customs,
conventions or
general principles
of law
Applies to relations
between states and
international persons
Resolved
through
state-to-state
transactions
Regulates relations
of
individuals
among themselves
Violations
are
redressed through
local judicial and
administrative
processes
Breaches
entail Collective
individual
responsibility
responsibility
150
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
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
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
151
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.
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.
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
152
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
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
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.
Estrada Doctrine
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
recognition are absent.
requirements
for
153
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
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.
Classes of States
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.
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
154
territory
administered by 2 states.
jointly
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
155
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
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
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.
2.
3.
4.
5.
6.
Principal Organs
General Assembly
Security Council
Economic and Social Council
Trusteeship Council
Secretariat
International Court of Justice
General Assembly
- 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
156
1)
2)
3)
4)
5)
Functions
Deliberative
Supervisory
Financial
Elective
Constituent
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
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
157
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
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.
158
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
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
III. FUNDAMENTAL RIGHTS OF
STATE
1. Existence and Self-Preservation
2. Right to Sovereignty and Independence
3. Right of Equality
159
Right of Equality
- Article 2 of UN Charter
Organization is based on the principle of
sovereign equality of all its members
160
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
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
161
162
163
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
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.
Jurisdiction
- Power or authority exercised by a State
over land, persons, property, transactions
and events.
- Bases of Jurisdiction
1. Territorial Principle
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
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
164
165
166
167
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.
168
Employed in administrative
technical staff of the mission
and
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
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
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
169
170
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
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
171
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:
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
VI. TREATIES
Treaty
- 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.
Form
172
Executive
Agreements
Basic political issues Adjustment of detail
Changes in national carrying out wellpolicy
established national
policies
Permanent
Temporary
international
arrangements
arrangements
173
174
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
Amendment/Modifications
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.
1)
2)
1)
2)
3)
4)
5)
6)
1)
2)
3)
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
175
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:
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
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
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
176
5. freedom of movement
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
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.
177
Extradition
- surrender of a person by one state to
another state where he is wanted for
prosecution or punishment (if already
convicted)
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
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
1. Based
178
2.
3.
4.
5.
Canada
Indonesia
Micronesia
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
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.
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.
179
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.
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:
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
- 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
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
180
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
Parties may of their own volition or at
the instance of the organization itself,
assume the obligation of settling the dispute.
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)
181
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
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
182
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
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.
Mercenaries
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.
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
Spies
Individual is deemed a spy only if,
a. Acting clandestinely or under false
pretenses
183
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
property on its own or on enemy territory or
on the high seas
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.
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.
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.
Cartels
Agreements to regulate intercourse
during the war
Usually on the exchange of prisoners of
war
Passport
Written permission given by the
belligerent government
To the subjects of the enemy
To travel generally in the belligerent
state
Sage-conduct
184
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.
Suspension of Hostilities
Suspension of Arms
Temporary cessation of hostilities
By agreement of the local commanders
For the purposes of gathering of the
wounded and burial of the dead
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
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
Cease-Fire
Unconditional stoppage of hostilities
Usually ordered by an international body
Truce
Conditional
purposes
cease-fire
for
political
Capitulation
Surrender of military forces, places or
districts in accordance with rules of military
honor.
Termination of War
185
186
187