Professional Documents
Culture Documents
I. GENERAL PRINCIPLES
Definition of Political Law
Is the branch of public law which deals with the organization and operation of
the governmental organs of the State and defines the relations of the State
with the inhabitants of its territory. It embraces constitutional law, law of
public officers, law on elections, and law of public corporations.
The government under Cory Aquino and the Freedom Constitution is a de jure
government. It was established by authority of the legitimate sovereign, the
people. It was a revolutionary government in defiance of the 1973
Constitution.
In the cases at bar, the facts show that petitioner did not write any formal letter of
resignation before he evacuated Malacaang Palace in the afternoon of January 20,
2001 after the oath-taking of respondent Arroyo. Consequently, whether or not
petitioner resigned has to be determined from his act and omissions before, during
and after January 20, 2001 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a material relevance on the
issue.
Using this totality test, we hold that petitioner resigned as President.
The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.
The petitioner decided to call for a snap presidential election and stressed he
would not be a candidate. The proposal for a snap election for president in
May where he would not be a candidate is an indicium that petitioner had
intended to give up the presidency even at that time.
rejected by the US Supreme Court. It concluded that "when the ground for
asserting privilege as to subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the fair
administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,
the US Supreme Court further held that the immunity of the president
from civil damages covers only "official acts." Recently, the US Supreme Court
had the occasion to reiterate this doctrine in the case of Clinton v. Jones where it
held that the US President's immunity from suits for money damages
arising out of their official acts is inapplicable to unofficial conduct.
ISSUE NO. 5
Petitioner also contends that the respondent Ombudsman should be stopped from
conducting the investigation of the cases filed against him due to the barrage of
prejudicial publicity on his guilt. He submits that the respondent Ombudsman has
developed bias and is all set file the criminal cases violation of his right to due
process.
In People vs. Teehankee, Jr., later reiterated in the case of Larranaga vs. court of
Appeals, et al., we laid down the doctrine that:
Pervasive publicity is not per se prejudicial to the right of an accused to
fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-togavel coverage does not by itself prove that the publicity so permeated the mind of
the trial judge and impaired his impartiality. For one, it is impossible to seal the
minds of members of the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our communication system
brings news as they happen straight to our breakfast tables and right to
our bedrooms. These news form part of our everyday menu of the facts
and fictions of life. For another, our idea of a fair and impartial judge is
not that of a hermit who is out of touch with the world. We have not installed
the jury system whose members are overly protected from publicity lest they lose
their impartially. xxx xxx xxx. Our judges are learned in the law and trained
to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does
not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial
judge due to the barrage of publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard
of possibility of prejudice and adopted the test of actual prejudice as we
ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not
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simply that they might be, by the barrage of publicity. In the case at a bar,
the records do not show that the trial judge developed actual bias against
appellants as a consequence of the extensive media coverage of the pre-trial and
trial of his case. The totality of circumstances of the case does not prove
that the trial judge acquired a fixed opinion as a result of prejudicial
publicity, which is incapable of change even by evidence presented during
the trial. Appellant has the burden to prove this actual bias and he has not
discharged the burden.'
II. PRINCIPLES AND POLICIES OF THE PHILIPPINE GOVERNMENT
THE PREAMBLE
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to
build a just and humane society, and establish a Government that shall embody our
ideals and aspirations, promote the common good, conserve and develop our
patrimony, and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this Constitution.
ART. II: PRINCIPLES AND STATE POLICIES
PRINCIPLES
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
STATE POLICIES
Section 7.
Section 8.
Section 9.
The State shall promote a just and dynamic social order that will
ensure the prosperity and independence of the nation and free
the people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an
improved quality of life for all.
Section 10. The State shall promote social justice in all phases of national
development.
Section 11. The State values the dignity of every human person and
guarantees full respect for human rights.
Section 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life
of the unborn from conception. The natural and primary right and duty
of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
Government.
Section 13. The State recognizes the vital role of the youth in nation-building and
shall promote and protect their physical, moral, spiritual, intellectual,
and social well-being. It shall inculcate in the youth patriotism
and nationalism, and encourage their involvement in public
and civic affairs.
Section 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and
men.
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Section 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
Section 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature.
Section 17. The State shall give priority to education, science and
technology, arts, culture, and sports to foster patriotism and
nationalism, accelerate social progress, and promote total human
liberation and development.
Section 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.
Section 19. The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.
Section 20. The State recognizes the indispensable role of the private
sector, encourages private enterprise, and provides incentives
to needed investments.
Section 21. The State shall promote comprehensive rural development and
agrarian reform.
Section 22. The State recognizes and promotes the rights of indigenous
cultural communities within the framework of national unity and
development.
Section 23. The State shall encourage non-governmental, communitybased, or sectoral organizations that promote the welfare of the
nation.
Section 24. The State recognizes the vital role of communication and
information in nation-building.
Section 25. The State shall ensure the autonomy of local governments.
Section 26. The State shall guarantee equal access to opportunities for
public service and prohibit political dynasties as may be defined
by law.
Section 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and
corruption.
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Section 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its
transactions involving public interest.
Territory
Philippine archipelago,
consisting
domains,
of
its
terrestrial,
fluvial
and
aerial
Art. 2 of the Revised Penal Code makes certain crimes punishable even
if committed outside the Philippines or Art. 15 of the Civil Code which
provides that Laws relating to family rights and duties or to the status,
condition, and legal capacity of persons are binding upon the citizens
of the Philippines, even though living abroad.
People
Natural-born citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their
Philippine citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be deemed
natural-born citizens.
Section 3.
by law.
Section 4.
Section 5.
Bengzon vs Cruz
There are two ways of acquiring citizenship: (1) by birth, and (2) by
naturalization. These ways of acquiring citizenship correspond to the two
kinds of citizens: the natural-born citizen, and the naturalized citizen. A
person who at the time of his birth is a citizen of a particular country, is a
natural-born citizen thereof.
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Government
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Sovereignty
Sovereign means the supreme uncontrollable power, the jures summi imperii,
the absolute right to govern; it is the supreme will of the State, the power to
make laws and enforce them by all the means of coercion it cares to employ;
that "no execution shall issue upon any judgment rendered by any Court
against the Government of the (Philippines) under the provisions of this
Act;" and that otherwise, the claimant would have to prosecute his money
claim against the State under Commonwealth Act 327.
ACTS JURE IMPERII AND JURE GESTIONIS, DISTINGUISHED.
"There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the Courts of
another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private act or acts jure
gestionis. x x x Certainly, the mere entering into a contract by a foreign state with
a private party cannot be the ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign state is engaged in the activity
in the regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it
is an act jure imperii, especially when it is not undertaken for gain or profit." The
service contracts referred to by private respondent have not been intended by the
ADB for profit or gain but are official acts over which a waiver of immunity would
not attach.
OPOSA vs FACTORAN
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed.
cannot be invoked.
In the second place, even if it is to be assumed that the same are
contracts, the instant case does not involve a law or even an executive
issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed mandating
cancellations or modifications, the same cannot still be stigmatized as a violation of
the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police
power of the state for the purpose of advancing the right of the people to
a balanced and healthful ecology, promoting their health and enhancing
the general welfare. In Abe vs. Foster Wheeler Corp. this Court stated:
The freedom of contract, under our system of government, is not meant to be
absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and
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to be made between a qualified foreigner and a qualified Filipino, the latter shall
be chosen over the former.
The Supreme Court directed the GSIS, the Manila Hotel Corporation, the Committee
on Privatization and the Office of the Government Corporate Counsel to cease and
desist from selling 51% of the Share of the MHC to Renong Berhad, and to accept
the matching bid of Manila Prince Hotel at P44 per shere and thereafter execute the
necessary agreements and document to effect the sale, to issue the necessary
clearances and to do such other acts and deeds as may be necessary for the
purpose.
TANADA vs ANGARA
Facts
On April 15, 1994, the Philippine Government represented by its Secretary of the
Department of Trade and Industry signed the Final Act binding the Philippine
Government to submit to its respective competent authorities the WTO (World
Trade Organization) Agreements to seek approval for such. On December 14, 1994,
Resolution No. 97 was adopted by the Philippine Senate to ratify the WTO
Agreement.
This is a petition assailing the constitutionality of the WTO agreement as it violates
Sec 19, Article II, providing for the development of a self reliant and independent
national economy, and Sections 10 and 12, Article XII, providing for the Filipino
first policy.
Issue
Whether or not
unconstitutional
the
Resolution
No.
97
ratifying
the
WTO
Agreement
is
Ruling
The Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the
constitution mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with
the rest of the world on the bases of equality and reciprocity and limits protection of
Filipino interests only against foreign competition and trade practices that are
unfair. In other words, the Constitution did not intend to pursue an isolationalist
policy. Furthermore, the constitutional policy of a self-reliant and
independent national economy does not necessarily rule out the entry of
foreign investments, goods and services. It contemplates neither
economic seclusion nor mendicancy in the international community.
The Senate, after deliberation and voting, gave its consent to the WTO Agreement
thereby making it a part of the law of the land. The Supreme Court gave due
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Section 1.
The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and referendum.
Section 5
1. The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall
be elected from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with the number
of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional, and
sectoral parties or organizations.
2. The party-list representatives shall constitute twenty per centum of the
total number of representatives including those under the party list.
For three consecutive terms after the ratification of this Constitution,
one-half of the seats allocated to party-list representatives shall be
filled, as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities, women, youth,
and such other sectors as may be provided by law, except the religious
sector.
3. Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each province,
shall have at least one representative.
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4. Within three years following the return of every census, the Congress
shall make a reapportionment of legislative districts based on the
standards provided in this section.
BAGONG BAYANI vs COMELEC
It has been held that certiorari is available, notwithstanding the presence of other
remedies, "where the issue raised is one purely of law, where public interest is
involved, and in case of urgency." Indeed, the instant case is indubitably imbued
with public interest and with extreme urgency, for it potentially involves the
composition of 20 percent of the House of Representatives.
In its Petition, Ang Bagong Bayani-OFW Labor Party contends that "the inclusion of
political parties in the party-list system is the most objectionable portion of the
questioned Resolution." For its part, Petitioner Bayan Muna objects to the
participation of "major political parties." On the other hand, the Office of the
Solicitor General, like the impleaded political parties, submits that the Constitution
and RA No. 7941 allow political parties to participate in the party-list elections. It
argues that the party-list system is, in fact, open to all "registered national, regional
and sectoral parties or organizations."
Under the Constitution and RA 7941, private respondents cannot be disqualified
from the party-list elections, merely on the ground that they are political parties.
Section 5, Article VI of the Constitution provides that members of the House of
Representatives may "be elected through a party-list system of registered national,
regional, and sectoral parties or organizations."
That political parties may participate in the party-list elections does not mean,
however, that any political party -- or any organization or group for that matter -may do so. The requisite character of these parties or organizations must be
consistent with the purpose of the party-list system, as laid down in the Constitution
and RA 7941. Section 5, Article VI of the Constitution, provides as follows:
(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party list. For three
consecutive terms after the ratification of this Constitution, one-half of the seats
allocated to party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law,
except the religious sector." (Emphasis supplied.)
The intent of the Constitution is clear: to give genuine power to the
people, not only by giving more law to those who have less in life, but
more so by enabling them to become veritable lawmakers themselves.
Consistent with this intent, the policy of the implementing law, we repeat, is
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Section 6
The mischief which this provision reproduced verbatim from the 1973
Constitution seeks to prevent is the possibility of a "stranger or newcomer
unacquainted with the conditions and needs of a community and not identified with
the latter, from an elective office to serve that community."
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the
position of Representative of the First District of Leyte with the Provincial Election
Supervisor on March 8, 1995.
Private respondent Cirilo Roy Montejo, the incumbent Representative of the First
District of Leyte and a candidate for the same position, filed a "Petition for
Cancellation and Disqualification" with the Commission on Elections alleging that
petitioner did not meet the constitutional requirement for residency. In his petition,
private respondent contended that Mrs. Marcos lacked the Constitution's one year
residency requirement for candidates for the House of Representatives.
Held:
So settled is the concept (of domicile) in our election law that in these and other
election law cases, this Court has stated that the mere absence of an individual
from his permanent residence without the intention to abandon it does
not result in a loss or change of domicile.
It stands to reason therefore, that petitioner merely committed an honest mistake
in jotting the word "seven" in the space provided for the residency qualification
requirement. It would be plainly ridiculous for a candidate to deliberately and
knowingly make a statement in a certificate of candidacy which would lead to his or
her disqualification.
Residence in the civil law is a material fact, referring to the physical presence of a
person in a place. A person can have two or more residences, such as a country
residence and a city residence. Residence is acquired by living in place; on the
other hand, domicile can exist without actually living in the place. The important
thing for domicile is that, once residence has been established in one place, there
be an intention to stay there permanently, even if residence is also established in
some other place.
For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our
election law, what has clearly and unequivocally emerged is the fact that
residence for election purposes is used synonymously with domicile.
In Nuval vs. Guray, the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to reside in a
fixed place, but also personal presence in that place, coupled with conduct
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indicative of such intention." Larena vs. Teves reiterated the same doctrine in a
case involving the qualifications of the respondent therein to the post of Municipal
President of Dumaguete, Negros Oriental. Faypon vs. Quirino, held that the absence
from residence to pursue studies or practice a profession or registration as a voter
other than in the place where one is elected does not constitute loss of residence.
So settled is the concept (of domicile) in our election law that in these and other
election law cases, this Court has stated that the mere absence of an individual
from his permanent residence without the intention to abandon it does not result in
a loss or change of domicile.
In Co vs. Electoral Tribunal of the House of Representatives, this Court concluded
that the framers of the 1987 Constitution obviously adhered to the definition given
to the term residence in election law, regarding it as having the same meaning
as domicile.
AQUINO VS COMELEC
Aquino was a resident of Tarlac for 52 years prior to his winning the Congressional
seat in Makati, to which he only resided for at least 10 months while renting a
condominium;
Held:
Clearly, the place "where a party actually or constructively has his
permanent home," where he, no matter where he may be found at any
given time, eventually intends to return and remain, i.e., his domicile, is
that to which the Constitution refers when it speaks of residence for the
purposes of election law. The manifest purpose of this deviation from the usual
conceptions of residency in law as explained in Gallego vs. Vera is "to exclude
strangers or newcomers unfamiliar with the conditions and needs of the
community" from taking advantage of favorable circumstances existing in that
community for electoral gain.
In fine, we are left with no choice but to affirm the COMELEC's conclusion
declaring herein petitioner ineligible for the elective position of
Representative of Makati City's Second District on the basis of respondent
commission's finding that petitioner lacks the one year residence in the
district mandated by the 1987 Constitution. A democratic government is
necessarily a government of laws. In a republican government those laws are
themselves ordained by the people. Through their representatives, they dictate the
qualifications necessary for service in government positions. And as petitioner
clearly lacks one of the essential qualifications for running for membership in the
House of Representatives, not even the will of a majority or plurality of the
voters of the Second District of Makati City would substitute for a
requirement mandated by the fundamental law itself.
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Section 11
Section 21
The Senate or the House of Representatives or any of its respective committees
may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in, or affected
by, such inquiries shall be respected.
Section 24
Section 28
1. The rule of taxation shall be uniform and equitable. The Congress
shall evolve a progressive system of taxation.
2. The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as
it may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the Government.
3. Charitable institutions, churches and personages or convents appurtenant
thereto, mosques, non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used for religious,
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charitable,
taxation.
or
educational
purposes
shall
be
exempt
from
The next argument of the petitioners was that S. No. 1630 did not pass 3 readings
on separate days as required by the Constitution because the second and third
readings were done on the same day. But this was because the President had
certified S. No. 1630 as urgent. The presidential certification dispensed
with the requirement not only of printing but also that of reading the bill
on separate days. That upon the certification of a bill by the President the
requirement of 3 readings on separate days and of printing and distribution can be
dispensed with is supported by the weight of legislative practice.
Section 26
1. Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof.
2. No bill passed by either House shall become a law unless it has
passed three readings on separate days, and printed copies thereof
in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the
necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately
thereafter, and the yeas and nays entered in the Journal.
Republican Systems:
a. Original
Non-legislative
NOTA BENE:
Powers of Congress may be inherent (like the determination of its rules of
proceedings and discipline of its members) or implied (like the power to punish for
contempt in legislative investigations).
The people, through amendatory process, can exercise constituent power, and,
through initiative and referendum, legislative power.
Sec. 12: Full Disclosure
Sec. 13 and 14: Disqualifications
REGULAR once every year on the fourth Monday of July, unless a different
date is fixed by law, and shall continue to be in session for such number of
days as it may determine until 30 days before the next regular session
SPECIAL anytime when called by the President
DISCIPLINE:
Expulsion disorderly behavior
Suspension should not be for more than 60 days
NOTA BENE: The 60-day suspension imposed by Congress to discipline its member
does not include the preventive suspension which may be imposed by the
Sandiganbayan for prosecution of offenses.
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29
Q: Can a law creating an office and at the same time provide for
disbursement of funds be considered an appropriation bill?
A: No, because the main purpose of that law is not the disbursement of funds but
the creation of an office.
Q: Can Congress increase the budget appropriated or recommended by
the President?
A: No, but Congress can decrease the amount.
Q: What happens if Congress fails to pass a general appropriations act?
A: The previous act will be re-enacted to be used for the fiscal year until such time
that a General Appropriations Bill shall be passed.
SPECIFIC REQUIREMENTS OF SPECIAL APPROPRIATION BILL:
Must be for a specific purpose
Must have a certification from the National Treasurer that the funds are
available or if there is an accompanying revenue proposal as to how to raise
the funds needed
NOTA BENE:
Certification from the National Treasurer is needed in order to avoid sub
rosa appropriation, wherein a special appropriations measure is done even
though the funds are not available.
But a special appropriation bill may be filed even if there is no budget yet so
long as there is an accompanying revenue proposal on how to raise the
funds.
Tax levied for a special purpose shall be treated as a special fund and paid
out for such purpose only (any balance shall be transferred to the general
funds of the Government
Tax laws must be uniform and equitable
Progressive tax system
Discretionary Funds
CONDITIONS:
Disbursed for a public purpose
Duly supported by appropriate vouchers
Subject to guidelines prescribed by law
Transfer of Funds
GR: transfer of funds is not allowed
EXC: if the transfer is only within one department, or if there is surplus or savings
and the transfer is for the purpose of augmenting any item in the appropriation law
WHO
It is enough that the title must be able to state what the bill is all about, without
necessarily enumerating the details of the bill.
Presidential certification dispenses with both the 3-day printing and the 3 readings
on 3 separate days. But the bill must still go through 3 readings, which may be
done on the same day. This is not subject to judicial review, as a general rule,
because there is no factual basis of grave abuse of discretion to speak of.
Sec. 27: Presidents Veto
HOW PRESIDENT EXERCISES VETO POWER:
General for all bills except ART bills; veto the whole bill (general rule)
Line or Item only for ART bills because each item of ART is a bill in itself in
terms of importance; veto only certain provisions that are inappropriate
INAPPROPRIATE PROVISIONS:
Any provision that does not relate to a particular, distinctive appropriation or
item; in such a case, the inappropriate provision shall be treated as an item
and therefore can be vetoed
Any provision blocking admnistrative action in implementing the law or
requiring legislative approval for executive action
Any provision that is unconstitutional
Any provision that amends a certain law
Q: When does a bill become a law?
A: A bill becomes a law after the Presidents approval. A bill may also become a law
through the Presidents inaction (given 30 days to either approve or veto a bill; if no
action, it is implied approval). Another way for a bill to become a law is if Congress,
after the Presidents veto, overrides the same by 2/3 votes of the members of each
House.
Q: What is the effect of an invalid veto?
A: It will be like there was no veto at all.
Q: What is a pocket veto?
A: The rule is that if the President, after receiving a copy of the bill, does not act on
the same within 30 days, neither indicating his approval nor veto, the bill shall pass
into law as if he had signed it. The exception is before the lapse of the 30-day
period the Congress adjourns and the President does not act on the bill until the
said period lapses, thus effectively vetoing it. Ignoring legislation, or putting a bill
in ones pocket until Congress adjourns is thus called a pocket veto. Since
Congress cannot vote while in adjournment, a pocket veto cannot be overridden.
Q: When does a law take effect?
A: A law becomes effective 15 days after publication, unless otherwise provided.
The phrase unless otherwise provideddoes not mean that publication may be
dispensed with. Rather, the phrase refers to the 15-day period. In other words, the
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law itself may provide, through its effectivity clause, that it becomes effective after
the lapse of a different period. (See Tanada vs. Tuvera)
The Legislative Mill
Drafting done by either a member of the House or the Bill Drafting
Division. The draft goes to the Plenary Affairs Bureau of the Index and Bills
Division where it will be docketed and assigned a bill number, e.g. House Bill No.
First Reading only the title and the number of the bill is read, after which,
the Senate President or the House Speaker will refer it to the right committee,
depending on the title; the committee will study the bill and, if necessary,
conduct public hearings; this is where the bill either gets killed or
recommended for approval, with amendments, if any, or consolidated with other
bills on the same subject
Second Reading involves a reading of the whole text of the bill, not just
the title and docket number; the sponsor of the bill will make his Sponsorship
Speech, followed by the Turno en Contra who will oppose the passage of the bill;
then comes the debate and interpellation, after which, the amendments agreed
upon are finalized; the bill as amended is then printed and distributed to the
members at least 3 days before the 3rd reading
Third Reading no more debates or discussions or questions; members are
only there to vote to approve or reject the bill and, if required by law, to explain
why so; voting will be done through yeas and nays
Referral after the 3rd reading, the bill will be referred to the other chamber
where it will also undergo 3 readings; in case of conflict, the bill will be referred
to the Bicameral Chamber, which is a committee composed of members of each
House; the Bicameral Chamber will draft a compromise measure that, if
approved by both Houses, will be submitted to the President for him to veto or
approve into law
Limitations on Legislative Power
Substantive - curtail the contents of a law
Non-delegation of legislative power
Prohibiting passage of irrepealable laws
Prohibiting passage of law that increases the appellate jurisdiction of
SC without its advice and concurrence (Sec. 30)
Prohibiting law granting royalty or nobility (Sec. 31)
Procedural curtail the manner of passing a law
The President (Art. 7)
Section 1
The executive power shall be vested in the President of the Philippines.
36
Facts: This case involves a petition of mandamus and prohibition asking the court to
order the respondents Secretary of Foreign Affairs, etc. To issue a travel documents
to former Pres. Marcos and the immediate members of his family and to enjoin the
implementation of the President's decision to bar their return to the Philippines.
Petitioners assert that the right of the Marcoses to return in the Philippines is
guaranteed by the Bill of Rights, specifically Sections 1 and 6. They contended that
Pres. Aquino is without power to impair the liberty of abode of the Marcoses
because only a court may do so within the limits prescribed by law. Nor the
President impair their right to travel because no law has authorized her to do so.
They further assert that under international law, their right to return to the
Philippines is guaranteed particularly by the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights, which has been ratified
by the Philippines.
Issue: Whether or not, in the exercise of the powers granted by the constitution, the
President (Aquino) may prohibit the Marcoses from returning to the Philippines.
Held: "It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These are
what the right to travel would normally connote. Essentially, the right involved in
this case at bar is the right to return to one's country, a distinct right under
international law, independent from although related to the right to travel. Thus,
the Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights treat the right to freedom of movement and
abode within the territory of a state, the right to leave the country, and
the right to enter one's country as separate and distinct rights. What the
Declaration speaks of is the "right to freedom of movement and residence within
the borders of each state". On the other hand, the Covenant guarantees the right to
liberty of movement and freedom to choose his residence and the right to be free to
leave any country, including his own. Such rights may only be restricted by
laws protecting the national security, public order, public health or morals
or the separate rights of others. However, right to enter one's country cannot
be arbitrarily deprived. It would be therefore inappropriate to construe the
limitations to the right to return to ones country in the same context as those
pertaining to the liberty of abode and the right to travel.
The Bill of rights treats only the liberty of abode and the right to travel, but it is a
well-considered view that the right to return may be considered, as a generally
accepted principle of International Law and under our Constitution as part of the law
of the land.
The court held that President did not act arbitrarily or with grave abuse of
discretion in determining that the return of the Former Pres. Marcos and
37
his family poses a serious threat to national interest and welfare. President
Aquino has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years after the
Marcos regime.
The return of the Marcoses poses a serious threat and therefore prohibiting their
return to the Philippines, the instant petition is hereby DISMISSED.
MOTION FOR RECONSIDERATION
No. The Marcoses were not allowed to return. Motion for Reconsideration denied
because of lack of merit.
Ratio:
Petitioners failed to show any compelling reason to warrant reconsideration.
Factual scenario during the time Court rendered its decision has not changed. The
threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased. Imelda Marcos also
called President Aquino illegal claiming that it is Ferdinand Marcos who is the
legal president.
President has unstated residual powers implied from grant of executive power.
Enumerations are merely for specifying principal articles implied in the definition;
leaving the rest to flow from general grant that power, interpreted in conformity
with other parts of the Constitution (Hamilton). Executive unlike Congress can
exercise power from sources not enumerates so long as not forbidden by
constitutional text (Myers vs. US). This does not amount to dictatorship.
Amendment No. 6 expressly granted Marcos power of legislation whereas 1987
Constitution granted Aquino with implied powers.
It is within Aquinos power to protect & promote interest & welfare of the people.
She bound to comply w/ that duty and there is no proof that she acted arbitrarily
ALMONTE VS VASQUEZ
A subpoena duces tecum was issued by the Ombudsman in connection with his
investigation of an anonymous letter alleging that funds representing savings from
unfilled positions in the EIIB had been illegally disbursed. The letter, purporting to
have been written by an employee of the EIIB and a concerned citizen, was
addressed to the Secretary of Finance, with copies furnished several government
offices, including the Office of the Ombudsman.
Issues:
38
particulars of each case, attempts by the Executive Branch to forestall these abuses
may be accorded judicial sanction.
Concept of executive privilege.
Executive privilege is the power of the Government to withhold information
from the public, the courts, and the Congress. It is the right of the President
and high-level executive branch offices to withhold information from Congress, the
courts and ultimately the public.
Types or kinds of executive privilege.
Executive privilege is not a clear or unitary concept. It has encompassed claims of
varying kinds.
One variety of the privilege, is the state secrets privilege invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is such
nature that its disclosure would subvert crucial military or diplomatic objectives.
Another variety is the informers privilege, or the privilege of the
Government not to disclose the identity of persons who furnish
information of violations of law to officers charged with the enforcement of that
law. Finally, a generic privilege for internal deliberations has been said to
attach
to
intra-governmental
documents
reflecting
advisory
opinions,
recommendations and deliberations comprising part of a process by which
government decisions and policies are formulated.
Basis for the three kinds of executive privilege.
Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information, the confidentiality of which they
felt was crucial to the fulfillment of the unique role and responsibilities of
the executive branch of our government. Courts ruled early that the executive
had a right to withhold documents that might reveal military or state secrets. The
courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold
information related to pending investigations. (In re Sealed, 121 F. ed. 729, 326 U.S.
App. D.C. 276;)
Appearance during the question hour not mandatory.
The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to conform
more fully to a system of separation of powers. To that extent, the question hour, as
it is presently understood in this jurisdiction, departs from the question period of the
parliamentary system. That department heads may not be required to
appear in a question hour does not, however, mean that the legislature is
41
the highest official in the executive hierarchy. In other words, the President may
not authorize her subordinates to exercise such power. There is even less
reason to uphold such authorization where the authorization is not explicit but mere
silence. Section 3, in relation to Section 2(b), is invalid on this score.
Sec. 1: President
The executive power shall be vested in the President of the Philippines.
Sec. 2: Qualifications
Natural-born citizen
Registered voter
Able to read and write
At least 40 yrs old on the day of election
Resident for at least 10 yrs immediately preceding the election
Sec. 3: Vice-President
Same qualifications and term of office as President
Elected and removed in same manner as President
May be a member of the Cabinet without need of confirmation
Sec. 4: Election and Term of Office
PRESIDENT six years without re-election
VICE-PRESIDENT six years, 2 successive terms
Upon receipt of certificate of canvass, the Senate President shall, not later than 30
days after election day, open all the certificates in the presence of the Senate and
the House of reps in a joint public session
Congress shall determine the due authenticity and due execution of the certificate
canvass and start canvassing the votes
Congress shall proclaim the candidate having the highest number of votes
In case of tie, Congress shall vote separately and the candidate having the majority
votes of all members of both Houses shall be proclaimed the winner
Role of Congress in Presidential Election is to canvass the votes (See Barbers vs.
Comelec)
Immunity from suit not provided in the Constitution; to prevent distraction from
performance of duties
SALARY
Fixed by law
Cannot be decreased during tenure (actual time he held office) and cannot be
increased during his term (only upon expiration of the term)
Shall not receive during tenure any other emolument from Government or any
other source
If President-elect fails to qualify, dies or is permanently incapacitated, VicePresident-elect becomes the President
If the President-elect becomes incapacitated temporarily, the Vice-Presidentelect will act as President until such a time that the President can assume office
If there is failure to elect the president, the Vice-President will assume or act as
President
If the President, during his term, dies, gets disabled permanently, is removed
from office, or resigns, the Vice-President becomes the President
Vice-President
Senate President
46
The President shall nominate one from the Senate and the House of Reps who shall
assume office upon confirmation by a majority vote of all the Members of the
Houses, voting separately
Congress will convene without need of a call and within 7 days enact a law
calling for a special election to be held not earlier than 45 days nor later than
60 days from time of such call
President
Vice-President
Cabinet Members
Deputies and Assistants
EXCEPTIONS:
Effective unless revoked by the elected President within 90 days from his
assumption or reassumption of office
48
Acting President shall not make appointments 2 mos immediately before the
next presidential elections and up to the end of his term, EXCEPT: temporary
appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety
Regular
Ad Interim
Temporary
Acting Appointments, effect and validity (See Pimentel vs. Executive Secretary)
Q: When is Congress considered to be in recess?
A: Recess it not the time between the adjournment of Congress and the start of its
regular session. The recess referred to here is the times of interval of the session of
the same Congress.
Q: How long will ad interim appointments last?
A: Such appointments will last until disapproved by
Appointments or until the next adjournment of Congress.
the
Commission
on
Officers lower in rank whose appointments the Congress may by law vest in
the President alone
Section 17
49
The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
Presidents Power of Control
The presidential power of control over the Executive branch of government extends
to all executive employees from the Department Secretary to the lowliest clerk. This
constitutional power of the President is self-executing and does not require any
implementing law. Congress cannot limit or curtail the Presidents power of control
over the Executive branch.
GR: Congress has power to abolish
The general rule has always been that the power to abolish a public office is lodged
with the legislature. This proceeds from the legal precept that the power to create
includes the power to create includes the power to destroy. A public office is either
created by the Constitution, by statute, or by authority of law. Thus, except where
the office was created by the Constitution itself, may be abolished by the same
legislature that brought it into existence.
The exception, however, is that as far as bureaus, agencies or offices in
the executive department are concerned, the Presidents power of control
may justify him to inactivate the functions of a particular office, or certain
laws may grant him the broad authority to carry out reorganization
measures.
What powers may not be delegated
xxx There are certain presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the suspension of fundamental
freedoms, or at least call for the supersedence of executive prerogatives over those
exercised by co-equal branches of government. The declaration of martial law,
the suspension of the writ of habeas corpus, and the exercise of the
pardoning power notwithstanding the judicial determination of guilt of the
accused, all fall within this special class that demands the exclusive
exercise by the President of the constitutionally vested power. The list is by
no means exclusive, but there must be a showing that the executive power in
question is of similar gravitas and exceptional import.
We cannot conclude that the power of the President to contract or guarantee
foreign debts falls within the same exceptional class. Indubitably, the decision to
contract or guarantee foreign debts is of vital public interest, but only akin to any
contractual obligation undertaken by the sovereign, which arises not from any
extraordinary incident, but from the established functions of governance.
50
MARTIAL LAW
NOTA BENE: There must be actual rebellion or invasion. Differ this from the calling
out power which does not require actual rebellion or invasion but only that
whenever it (the exercise of the calling out power) becomes necessary to suppress
lawless violence, rebellion or invasion. (See Sanlakas vs. Reyes, G.R. No. 159085,
Feb. 3, 2004)
Congress shall revoke or extend the period by jointly voting with an absolute
majority and President may not reverse such revocation
If Congress is not in session, they shall convene within 24 hours from such
declaration without need for call
Supreme Court may nullify the declaration on the ground of lack of factual
basis, judgment to be rendered within 30 days from its filing by any ordinary
citizen
DAVID VS ARROYO
FACTS:
These 7 consolidated petitions question the validity of PP 1017 (declaring a state of
national emergency) and General Order No. 5 issued by President Gloria MacapagalArroyo. While the cases are pending, President Arroyo issued PP 1021, declaring
that the state of national emergency has ceased to exist, thereby, in effect, lifting
PP 1017.
ISSUE:
Whether or not PP 1017 and G.O. No. 5 arrogated upon the President the
power to enact laws and decrees
If so, whether or not PP 1017 and G.O. No. 5 are unconstitutional
HELD:
Take-Care Power
52
This refers to the power of the President to ensure that the laws be faithfully
executed, based on Sec. 17, Art. VII: The President shall have control of all the
executive departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.
As the Executive in whom the executive power is vested, the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the officials and employees
of his department. Before assuming office, he is required to take an oath or
affirmation to the effect that as President of the Philippines, he will, among others,
execute its laws. In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all the
armed forces of the country, including the Philippine National Police under the
Department of Interior and Local Government.
implement certain laws, such as customs laws, laws governing family and property
relations, laws on obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to suppress
lawless violence.
Sec. 19: Executive Clemencies
Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit
fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of
all the Members of the Congress.
EXECUTIVE CLEMENCIES:
Amnesty
Pardon
Reprieve
Commutation
Remit fines and forfeitures
MONSANTO VS FACTORAN
54
Pardon cannot mask the acts constituting the crime. These are "historical"
facts which, despite the public manifestation of mercy and forgiveness implicit in
pardon, "ordinary, prudent men will take into account in their subsequent dealings
with the actor."
Pardon granted after conviction frees the individual from all the penalties
and legal disabilities and restores him to all his civil rights. But unless
expressly grounded on the person's innocence (which is rare), it cannot bring
back lost reputation for honesty, integrity and fair dealing. This must be
constantly kept in mind lest we lose track of the true character and purpose of the
privilege.
Thus, notwithstanding the expansive and effusive language of the Garland case, we
are in full agreement with the commonly-held opinion that pardon does
not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction although such pardon
undoubtedly restores his eligibility for appointment to that office.
To regain her former post as assistant city treasurer, Petitioner must re-apply and
undergo the usual procedure required for a new appointment.
55
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of
our nations consent to be bound by said treaty, with the concomitant duty to
uphold the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the
state or of the government, as the case may be, through which the formal
acceptance of the treaty is proclaimed. A State may provide in its domestic
legislation the process of ratification of a treaty. The consent of the State to be
bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that
ratification should be required, (c) the representative of the State has signed the
treaty subject to ratification, or (d) the intention of the State to sign the treaty
subject to ratification appears from the full powers of its representative, or was
expressed during the negotiation.
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to the ratification.
With the ratification of the VFA, which is equivalent to final acceptance, and with
the exchange of notes between the Philippines and the United States of America, it
now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement.
The Supreme Court
Section 1
The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
MARBURY VS MADISON
That for every violation of a vested legal right, there must be a legal remedy.
Acts of Congress that conflict with the Constitution are not laws and the
Courts are bound instead to follow the Constitution, affirming the principle of
judicial review.
56
"To what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those
intended to be restrained?"
It is emphatically the province and duty of the Judicial Department [the
judicial branch] to say what the law is. Those who apply the rule to particular
cases must, of necessity, expound and interpret that rule. If two laws conflict
with each other, the Courts must decide on the operation of each.
Section 5
The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting ambassadors, other
public ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the
law or the Rules of Court may provide, final judgments and orders of lower
courts in:
a. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
b. All cases involving the legality of any tax, impost, assessment, or
toll, or any penalty imposed in relation thereto.
c. All cases in which the jurisdiction of any lower court is in issue.
d. All criminal cases in which the penalty imposed is reclusion perpetua
or higher.
e. All cases in which only an error or question of law is involved.
3. Assign temporarily judges of lower courts to other stations as public
interest may require. Such temporary assignment shall not exceed six
months without the consent of the judge concerned.
4. Order a change of venue or place of trial to avoid a miscarriage of justice.
5. Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts,
the admission to the practice of law, the integrated bar, and legal
assistance to the under-privileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase,
57
Legal Standing
KILOSBAYAN VS GUINGONA
Section 1(B) of R.A. No. 1169, as amended by B.P. Blg. 42, prohibits the PCSO from
holding and conducting charity sweepstakes races, lotteries, and other similar
activities "in collaboration, association or joint venture with any person, association,
company or entity, foreign or domestic." PCSO enters into a contract of lease with
PGMC, such that the latter would operate lotteries with their own operational
expenses for 15 years after which termination of lease would then succeed all
properties to PCSO; opposed by Kilosbayan composed of concerned citizen;
Do they have legal standing?
Is the contract valid?
Held:
General Rule: "The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of
its enforcement.
However: In the first Emergency Powers Cases, ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive orders issued by
President Quirino although they were invoking only an indirect and general
interest shared in common with the public. The Court dismissed the objective that
they were not proper parties and ruled that the transcendental importance to
the public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure. We have since
then applied this exception in many other cases.
We find the instant petition to be of transcendental importance to the
public. The issues it raised are of paramount public interest and of a
category even higher than those involved in many of the aforecited cases.
The ramifications of such issues immeasurably affect the social, economic, and
moral well-being of the people even in the remotest barangays of the country and
58
taxpayers or voters who actually sue in the public interest. Hence the
question in standing is whether such parties have "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether he
is "the party who would be benefited or injured by the judgment, or the
'party entitled to the avails of the suit.'"
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able
to show, not only that the law or any government act is invalid, but also
that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has been or is
about to be denied some right or privilege to which he is lawfully entitled or that he
is about to be subjected to some burdens or penalties by reason of the statute or
act complained of. In fine, when the proceeding involves the assertion of a
public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.
Taxpayers Suit
In the case of a taxpayer, he is allowed to sue where there is a claim that
public funds are illegally disbursed, or that public money is being
deflected to any improper purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law. Before
he can invoke the power of judicial review, however, he must specifically prove that
he has sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the enforcement of
the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public.
A taxpayer may challenge the validity of a statute, which provides for the
disbursement of public funds, upon the theory that the expenditure of public funds,
by an officer of the State for the purpose of administering an unconstitutional act
constitutes a misapplication of such funds, which may be enjoined by a taxpayer.
As for a legislator, he is allowed to sue to question the validity of any
official action which he claims infringes his prerogatives as a legislator.
Indeed, a member of the House of Representatives has standing to maintain
60
inviolate the prerogatives, powers and privileges vested by the Constitution in his
office.
In the same vein, when dealing with class suits filed in behalf of all
citizens, persons intervening must be sufficiently numerous to fully
protect the interests of all concerned to enable the court to deal properly
with all interests involved in the suit, for a judgment in a class suit,
whether favorable or unfavorable to the class, is, under the res judicata
principle, binding on all members of the class whether or not they were
before the court. Where it clearly appears that not all interests can be sufficiently
represented as shown by the divergent issues raised in the numerous petitions
before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners
additionally allege standing as citizens and taxpayers, however, their petition will
stand.
There being no doctrinal definition of transcendental importance, the following
instructive determinants formulated by former Supreme Court Justice Florentino P.
Feliciano are instructive:
1. the character of the funds or other assets involved in the case;
2. the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of
the government; and
3. the lack of any other party with a more direct and specific interest in
raising the questions being raised.
Applying these determinants, this Court is satisfied that the issues raised herein
are indeed of transcendental importance.
RIPENESS AND PREMATURITY
In Tan v. Macapagal, this Court, through Chief Justice Fernando, held that for a case
to be considered ripe for adjudication, "it is a prerequisite that something had by
then been accomplished or performed by either branch before a court may come
into the picture." Only then may the courts pass on the validity of what was done, if
and when the latter is challenged in an appropriate legal proceeding.
JUSTICIABILITY
The term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus
Juris Secundum, it refers to "those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the Legislature or
61
63
A judge who falsifies his certificate of service is administratively liable to the SC for
serious misconduct and under Sec. 1, Rule 140 of the Rules of Court, and criminally
liable to the State under the Revised Penal Code for his felonious act.
In the absence of any administrative action taken against him by the Court
with regard to his certificates of service, the investigation being
conducted by the Ombudsman encroaches into the Courts power of
administrative supervision over all courts and its personnel, in violation of
the doctrine of separation of powers.
Art. VIII, Sec. 6 of the Constitution exclusively vests in the SC
administrative supervision over all courts and court personnel, from the
Presiding Justice of the CA down to the lowest municipal trial court clerk.
By virtue of this power, it is only the SC that can oversee the judges and
court personnels compliance with all laws, and take the proper
administrative action against them if they commit any violation thereof. No
other branch of government may intrude into this power, without running afoul of
the doctrine of separation of powers.
Where a criminal complaint against a judge or other court employee arises from
their administrative duties, the Ombudsman must defer action on said complaint
and refer the same to the SC for determination whether said judge or court
employee had acted within the scope of their administrative duties.
Section 11
The Members of the Supreme Court and judges of lower courts shall hold office
during good behavior until they reach the age of seventy years or become
incapacitated to discharge the duties of their office. The Supreme Court en
banc shall have the power to discipline judges of lower courts, or order
their dismissal by a vote of a majority of the Members who actually took part
in the deliberations on the issues in the case and voted thereon.
PEO VS GACOTT
Facts:
For failure to check the citations of the prosecution, the order of respondent RTC
Judge Eustaquio Gacott, Jr. dismissing a criminal case was annulled by the SC. The
respondent judge was also sanctioned with a reprimand and a fine of P10,000.00 for
gross ignorance of the law. The judgment was made by the Second Division of the
SC.
Issue:
Whether or not the Second Division of the SC has the competence to
administratively discipline respondent judge
64
Held:
To support the Courts ruling, Justice Regalado relied on his recollection of a
conversation with former Chief Justice Roberto Concepcion who was the Chairman
of the Committee on the Judiciary of the 1986 Constitutional Commission of which
Regalado was also a member.
The very text of the present Sec. 11, Art. VIII of the Constitution clearly shows that
there are actually two situations envisaged therein. The first clause which states
that the SC en banc shall have the power to discipline judges of lower
courts, is a declaration of the grant of that disciplinary power to, and the
determination of the procedure in the exercise thereof by, the Court en
banc. It was not therein intended that all administrative disciplinary cases
should be heard and decided by the whole Court since it would result in an
absurdity.
The second clause, which refers to the second situation contemplated therein and is
intentionally separated from the first by a comma, declares on the other hand
that the Court en banc can order their dismissal by a vote of a majority of
the Members who actually took part in the deliberations on the issues in
the case and voted therein. In this instance, the administrative case must be
deliberated upon and decided by the full Court itself.
Pursuant to the first clause which confers administrative disciplinary
power to the Court en banc, a decision en banc is needed only where the
penalty to be imposed is the dismissal of a judge, officer or employee of
the Judiciary, disbarment of a lawyer, or either the suspension of any of
them for a period of more than 1 year or a fine exceeding P10, 000.00 or
both.
Indeed, to require the entire Court to deliberate upon and participate in all
administrative matters or cases regardless of the sanctions, imposable or imposed,
would result in a congested docket and undue delay in the adjudication of cases in
the Court, especially in administrative matters, since even cases involving the
penalty of reprimand would require action by the Court en banc.
THE CONSTITUTIONAL COMMISSIONS
IX-A COMMON PROVISIONS
Civil Service Commission
Commission on Elections
Commission on Audit
What are the
Commissions?
inhibitions
on
the
members
of
the
Constitutional
Section 2
No member of a Constitutional Commission shall, during his tenure,
65
Salaries are fixed by law and shall not be decreased during their tenure
Shall enjoy fiscal autonomy
The Commissioners can be removed by impeachment only
The President cannot designate an acting Chairman, like the Chairman of the
Comelec (Brillantes vs Yorac)
Nota bene:
Appointment to any vacancy shall only be for the unexpired term of the
predecessor;
Chairman
(2) Commissioners
o Natural born citizens
o At least 355 years at the time of appointment
o Must not have been candidates for any elective position in the
elections immediately preceding their appointment
Appointed by the President with the consent of the Commission on
Appointments
7 years for Chairman
66
Section 6
No candidate who has lost in any election shall, within one year after such
election, be appointed to any office in the Government or any Government-owned
or controlled corporations or in any of their subsidiaries.
Section 7
No elective official shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
Government-owned or controlled corporations or their subsidiaries.
Section 8
No elective or appointive public officer or employee shall receive additional,
double, or indirect compensation, unless specifically authorized by law, nor
accept without the consent of the Congress, any present, emolument,
office, or title of any kind from any foreign government.
Pensions or gratuities shall not be considered as additional, double, or indirect
compensation.
Commission on Elections
Chairman
6 Commissioners
Qualifications
Natural born citizen
At leats 35 at the time of appointment
67
Nota bene:
Second. It is true that Sec. 3 (Definition of Terms) of the Act defines initiative
on amendments to the Constitution and mentions it as one of the three
systems of initiative, and that Sec. 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who
must submit the proposal. But unlike in the case of the other systems of initiative,
the Act does not provide for the contents of a petition for initiative on the
Constitution. Sec. 5, paragraph (c) requires, among other things, statement of the
proposed law sought to be enacted, approved or rejected, amended or repealed, as
the case may be. It does not include, as among the contents of the petition, the
provisions of the Constitution sought to be amended, in the case of initiative on the
Constitution.
xxx
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle
III), no subtitle is provided for initiative on the Constitution. This
conspicuous silence as to the latter simply means that the main thrust of the Act is
initiative and referendum on national and local laws. If Congress intended RA
6735 to fully provide for the implementation of the initiative on
amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or
hierarchy of values, the right of the people to directly propose amendments to the
Constitution is far more important than the initiative on national and local laws.
xxx
The foregoing brings us to the conclusion that RA 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned. Its lacunae on
this substantive matter are fatal and cannot be cured by empowering the
COMELEC to promulgate such rules and regulations as may be necessary to carry
out the purposes of the Act.
Principle of non-delegation of power
The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest. The recognized exceptions to
the rule are as follows:
Delegation
Delegation
Delegation
Delegation
Delegation
POLICE POWER
Whether Ordinance No. 4760 of the City of Manila is violative of the due
process clause.
That Section 1 of the challenged ordinance is unconstitutional and void for
being unreasonable and violative of due process insofar as it would impose
P6,000.00 fee per annum for first class motels and P4,500.00 for second class
motels;
That it requires that guest need to fill up required information to be admitted
to such hotel or motels in the presence of the hotel manager, owner, operator
or representative;
it also being provided that the premises and facilities of such hotels, motels
and lodging houses would be open for inspection either by the City Mayor, or
the Chief of Police, or their duly authorized representatives
71
that Section 2 of the challenged ordinance classifying motels into two classes
and requiring the maintenance of certain minimum facilities in first class
motels such as a telephone in each room, a dining room or, restaurant and
laundry similarly offends against the due process clause for being arbitrary,
unreasonable and oppressive, a conclusion which applies to the portion of the
ordinance requiring second class motels to have a dining room
that the provision of Section 2 of the challenged ordinance prohibiting a
person less than 18 years old from being accepted in such hotels, motels,
lodging houses, tavern or common inn unless accompanied by parents or a
lawful guardian and making it unlawful for the owner, manager, keeper or
duly authorized representative of such establishments to lease any room or
portion thereof more than twice every 24 hours
and that insofar as the penalty provided for in Section 4 of the challenged
ordinance for a subsequent conviction would, cause the automatic
cancellation of the license of the offended party
Held:
The presumption of validity of a statute:
Primarily what calls for a reversal of such a decision is the absence of
any evidence to offset the presumption of validity that attaches to a
challenged statute or ordinance. As was expressed categorically by
Justice Malcolm: "The presumption is all in favor of validity. The
Judiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation. It
admits of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or ordinance
is void on its face which is not the case here
Valid exercised of police power:
On the legislative organs of the government, whether national or local,
primarily rest the exercise of the police power, which, it cannot be too
often emphasized, is the power to prescribe regulations to promote the
health, morals, peace, good order, safety and general welfare of the
people. In view of the requirements of due process, equal protection and other
applicable constitutional guaranties however, the exercise of such police power
insofar as it may affect the life, liberty or property of any person is subject to
judicial inquiry. Where such exercise of police power may be considered as
either capricious, whimsical, unjust or unreasonable, a denial of due process or a
violation of any other applicable constitutional guaranty may call for correction
by the courts.
Taxation may be made to implement the state's police power:
In the equally leading case of Lutz v. Araneta24 this Court affirmed the
doctrine earlier announced by the American Supreme Court that taxation may be
made to implement the state's police power.
72
It has been the settled law, as far back as 1922 that municipal license fees
could be classified into those imposed for 1. regulating occupations or
regular enterprises, 2. for the regulation or restriction of non-useful
occupations or enterprises and 3. for revenue purposes only. As was
explained more in detail in the above Cu Unjieng case: (2) Licenses for nonuseful occupations are also incidental to the police power and the right
to exact a fee may be implied from the power to license and regulate,
but in fixing amount of the license fees the municipal corporations are
allowed a much wider discretion in this class of cases than in the
former, and aside from applying the well-known legal principle that municipal
ordinances must not be unreasonable, oppressive, or tyrannical, courts have,
as a general rule, declined to interfere with such discretion. The
desirability of imposing restraint upon the number of persons who
might otherwise engage in non-useful enterprises is, of course,
generally an important factor in the determination of the amount of
this kind of license fee. Hence license fees clearly in the nature of privilege
taxes for revenue have frequently been upheld, especially in of licenses for the
sale of liquors. In fact, in the latter cases the fees have rarely been declared
unreasonable.
Non-impairment of contracts still subject to police power:
The liberty of the citizen may be restrained in the interest of the public
health, or of the public order and safety, or otherwise within the proper
scope of the police power.
A similar observation was made by Justice Laurel: "Public welfare, then, lies
at the bottom of the enactment of said law, and the state in order to
promote the general welfare may interfere with personal liberty, with
property, and with business and occupations. Persons and property
may be subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of the state x x x To
this fundamental aim of our Government the rights of the individual are
subordinated. Liberty is a blessing, without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into
anarchy. Neither should authority be made to prevail over liberty because then
the individual will fall into slavery. The citizen should achieve the required
balance of liberty and authority in his mind through education and
personal discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for all.
ACEBEDO VS CA
FACTS:
73
Petitioner applied with the Office of the City Mayor of Iligan for a business permit.
Permit was therefor issued, subject to certain conditions like prohibition of putting
up an optical clinic, examining and/or prescribing reading and similar optical
glasses, etc. When it was found that petitioner violated these conditions, its
business permit was cancelled.
ISSUE:
Whether or not the imposition of special conditions by the public respondents were
acts ultra vires
RULING:
Police Power exercised by LGUs
Police power as an inherent attribute of sovereignty is the power to prescribe
regulations to promote the health, morals, peace, education, good order or safety
and general welfare of the people. The State, through the legislature, has
delegated the exercise of police power to local government units, as
agencies of the State, in order to effectively accomplish and carry out the
declared objects of their creation. This delegation of police power is embodied in the
general welfare clause of the Local Government Code xxx
The scope of police power has been held to be so comprehensive as to
encompass almost all matters affecting the health, safety, peace, order,
morals, comfort and convenience of the community. Police power is
essentially regulatory in nature and the power to issue licenses or grant business
permits, if exercised for a regulatory and not revenue-raising purpose, is
within the ambit of this power.
Power of city mayor to grant business permits
The authority of city mayors to issue or grant licenses and business permits is
beyond cavil. It is provided for by law.
However, the power to grant or issue licenses or business permits must always
be exercised in accordance with law, with utmost observance of the
rights of all concerned to due process and equal protection of the law.
But can city mayor cancel business permits or impose special conditions? As
aptly discussed by the Solicitor General in his Comment, the power to issue
licenses and permits necessarily includes the corollary power to revoke,
withdraw or cancel the same. And the power to revoke or cancel, likewise
includes the power to restrict through the imposition of certain conditions.
Did the conditions or restrictions imposed amount to a confiscation of the
business?
Distinction must be made between the grant of a license or permit to
do business and the issuance of a license to engage in the practice of a
particular profession. The first is usually granted by the local authorities
and the second is issued by the Board or Commission tasked to regulate the
particular profession. A business permit authorizes the person, natural or
otherwise, to engage in business or some form of commercial activity.
A professional license, on the other hand, is the grant of authority to a
74
MMDA VS GARIN
MMDA confiscated Respondents drivers license. Respondent opposed the sanction
of MMDA claiming it has no authority to exercise police power; MMDA contends that
a license to operate a motor vehicle is neither a contract nor a property right, but is
a privilege subject to reasonable regulation under the police power in the interest of
the public safety and welfare. The petitioner further argues that revocation or
suspension of this privilege does not constitute a taking without due process as long
as the licensee is given the right to appeal the revocation.
Held:
A license to operate a motor vehicle is a privilege that the state may
withhold in the exercise of its police power.
The petitioner correctly points out that a license to operate a motor vehicle is
not a property right, but a privilege granted by the state, which may be
suspended or revoked by the state in the exercise of its police power, in the
interest of the public safety and welfare, subject to the procedural due process
requirements.
In State ex. Rel. Sullivan, the Court held that, the legislative power to regulate
travel over the highways and thoroughfares of the state for the general welfare
is extensive. It may be exercised in any reasonable manner to conserve the
safety of travelers and pedestrians. Since motor vehicles are instruments
of potential danger, their registration and the licensing of their
operators have been required almost from their first appearance. The
right to operate them in public places is not a natural and unrestrained
right, but a privilege subject to reasonable regulation, under the police
power, in the interest of the public safety and welfare. The power to
license imports further power to withhold or to revoke such license upon
noncompliance with prescribed conditions.
Likewise, the petitioner quotes the Pennsylvania Supreme Court in
Commonwealth v. Funk, to the effect that: Automobiles are vehicles of
great speed and power. The use of them constitutes an element of
danger to persons and property upon the highways.
Carefully
operated, an automobile is still a dangerous instrumentality, but, when
operated by careless or incompetent persons, it becomes an engine of
destruction. The Legislature, in the exercise of the police power of the
commonwealth, not only may, but must, prescribe how and by whom
motor vehicles shall be operated on the highways. One of the primary
purposes of a system of general regulation of the subject matter, as here by the
75
Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules
and regulations
This is consistent with our ruling in Bel-Air that the MMDA is a development
authority created for the purpose of laying down policies and coordinating with
the various national government agencies, peoples organizations, nongovernmental organizations and the private sector, which may enforce, but not
enact, ordinances.
SUPERDRUG VS DSWD
Facts:
Petitioners are domestic corporations and proprietors operating drugstores in the
Philippines. Public respondents are DOH, DOJ, DILG and DSWD, which were tasked
to monitor the drugstores compliance with the Expanded Seniors Citizen Act.
Petitioners assail the constitutionality of Sec. 4(a) of the Expanded Seniors Citizen
Act, on the ground that it constitutes deprivation of private property, since
compelling them to grant the discount will result in a loss of profit and capital,
because they impose a mark-up of only 5% to 10% on branded medicines; and the
law failed to provide a tax deduction scheme which will give them just
compensation.
Issue:
Whether or not the Expanded Seniors Citizen Act is unconstitutional.
Held:
76
77
as they shall judge to be for the good and welfare of the commonwealth, and of the
subjects of the same.
For this reason, when the conditions so demand as determined by the
legislature, property rights must bow to the primacy of police power
because property rights, though sheltered by due process, must yield to
general welfare.
Police power as an attribute to promote the common good would be diluted
considerably if on the mere plea of petitioners that they will suffer loss of earnings
and capital, the questioned provision is invalidated. Moreover, in the absence of
evidence demonstrating the alleged confiscatory effect of the provision in question,
there is no basis for its nullification in view of the presumption of validity which
every law has in its favor.
The Court is not oblivious of the retail side of the pharmaceutical industry and the
competitive pricing component of the business. While the Constitution protects
property rights, petitioners must accept the realities of business and the State, in
the exercise of police power, can intervene in the operations of a business which
may result in an impairment of property rights in the process.
Moreover, the right to property has a social dimension. While Article XIII
of the Constitution provides the precept for the protection of property,
various laws and jurisprudence, particularly on agrarian reform and the
regulation of contracts and public utilities, continuously serve as a
reminder that the right to property can be relinquished upon the
command of the State for the promotion of public good.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX
A. Definition, Scope & Basis
1. Definition / Description
Police power is the power of promoting the public welfare by restraining
and regulating the use of liberty and property. (Freund, The Police Power
[Chicago, 1904]).
78
Police power is the power of the State to place restraints on the personal
freedom and property rights of persons for the protection of the public
safety, health, and morals or the promotion of the public convenience and
general prosperity. The police power is subject to limitations of the Constitution,
and especially to the requirement of due process. Police power is the exercise of the
sovereign right of a government to promote order, safety, security, health, morals
and general welfare within constitutional limits and is an essential attribute of
government (Marshall vs. Kansas City, Mo., 355 S.W.2d 877, 883)
Police power has been defined as the state authority to enact legislation
that may interfere with personal liberty or property in order to promote
the general welfare. As defined, it consists of (1) an imposition of restraint
upon liberty or property, (2) in order to foster the common good. It is not
capable of an exact definition but has been, purposely, veiled in general terms to
underscore its all-comprehensive embrace. (Sangalang vs. IAC, [GR 71169, 25
August 1989])
2. Scope
Police power regulates not only the property but, more importantly, the
liberty of private persons, and virtually all the people.
The scope of police power, ever-expanding to meet the exigencies of the times,
even to anticipate the future where it could be done provides enough room for an
efficient and flexible response to conditions and circumstances thus assuring the
greatest benefits. (Sangalang vs. IAC, [GR 71169, 25 August 1989])
3. Basis
The justification for police power is found in the ancient Latin maxims, Salus populi
est suprema lex, and Sic utere tuo ut alienum non laedas, which call for the
subordination of individual benefit to the interests of the greater number.
Salus populi est suprema lex. The welfare of the people is the supreme law.
(Lingo Lumber Co. vs. Hayes, Tex. Civ. App. 64 SW 2d. 835, 839)
Sic utere tuo ut alienum non laedas. (Common law maxim meaning that) one
should use his own property in such a manner as not to injure that of another (1 Bl.
Comm. 306. Chapman vs. Barnett, 131 Ind. App. 30, 169 N.E. 2d 212, 214).
It is a power not emanating from or conferred by the constitution, but
inherent in the state, plenary, suitably vague and far from precisely defined,
79
rooted in the conception that man in organizing the state and imposing upon the
government limitations to safeguard constitutional rights did not intend thereby to
enable individual citizens or group of citizens to obstruct unreasonably the
enactment of such salutary measures to ensure communal peace, safety, good
order and welfare. (Lozano vs. Martinez, 146 SCRA 323)
The police power of the State is a power coextensive with self-protection,
and it is not inaptly termed the law of overwhelming necessity. It may be
said to be that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety, and welfare of society. It
finds no specific Constitutional grant for the plain reason that it does not owe its
origin to the Charter. Along with the taxing power and eminent domain, it is inborn
in the very fact of statehood and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the most vital functions of governance.
It is the plenary power of the State to govern its citizens. (Sangalang vs. IAC, [GR
71169, 25 August 1989])
B. Characteristics
Pervasive and non-waivable The police power is the pervasive and nonwaivable power and authority of the sovereign to
secure and promote all the important interests and
needs or the public order of the general
community. (Tablarin vs. Judge Gutierrez, [GR
78164, 31 July 1987])
Essential, insistent and illimitable The police power of the state has been
described as the most essential, insistent and
illimitable of powers, which enables it to prohibit all
things hurtful to the comfort, safety and welfare of
society. (Lozano vs. Martinez, [GR L-63419, 18
December 1986])
Dynamic -
their duties. The remedy chosen by the legislature cannot be attacked on the
ground that it is not the best suggested solution, that it is unwise, impractical,
inefficacious, or even immoral. These issues are political in nature, and cannot be
inquired into by the legislature.
D. Tests of Police Power
Lawful subject - The interests of the public generally, as distinguished
from those of a particular class, require the exercise of
the police power. The enjoyment of private rights, when within
the scope of police power, may be subordinated to the interests
of the greater number.
Lawful means -
1.
2.
3.
4.
5.
6.
EMINENT DOMAIN
Eminent domain is an inherent power of the State that enables it to forcibly acquire
private lands intended for public use upon payment of just compensation to the
owner. Obviously, there is no need to expropriate where the owner is willing to sell
under terms also acceptable to the purchaser, in which case an ordinary deed of
sale may be agreed upon by the parties. (Noble v. City of Manila, 67 Phil. 1) It is
only where the owner is unwilling to sell, or cannot accept the price or other
conditions offered by the vendee, that the power of eminent domain will come into
play to assert the paramount authority of the State over the interests of the
property owner. Private rights must then yield to the irresistible demands of the
public interest on the time-honored justification, as in the case of the police power,
that the welfare of the people is the supreme law. (Association of Small Landowners
in the Philippines Inc. vs. Secretary of Agrarian Reform [GR 78741, 14 July 1989])
The following exercise the power of expropriation:
1. The Congress
2. The President of the Philippines
3. The various local legislative bodies
4. Certain public corporations
5. Quasi-public corporations (Example, quasi-public corporation: PEZA)
Expropriation may be initiated by court action or by legislation. (Republic v. De
Knecht, 182 SCRA 142 [1990]). The power of eminent domain is lodged primarily in
the national legislature, but its exercise may validly delegated to other government
entities and even to quasi-public corporations serving essential public needs or
operating public utilities. The utility of the proposed improvement, the extent of the
public necessity for its construction, the expediency of constructing it, the
suitableness of the location selected and the consequent necessity of taking the
land selected for its site, are questions which are essentially political and which are
to be exclusively determined by the legislature, and are usually not subject to
judicial review.
Constitutional limitation
Art. III, Sec. 9
83
Section 9. Private property shall not be taken for public use without just
compensation.
The exercise of the right of eminent domain, whether directly by the State, or by its
authorized agents, is necessary in derogation of private rights, and the rule in that
case is that the authority must be strictly construed. No species of property is held
by individuals with greater tenacity, and none is guarded by the Constitution and
laws more sedulously, than the right to the freehold of inhabitants. When the
legislature interferes with that right and, for greater public purposes,
appropriates the land of an individual without his consent, the plain
meaning of the law should not be enlarged by doubtful interpretation.
(Bensley vs. Mountainlake Water Co., 13 Cal. 306, and cases cited 73 Am. Dec.,
576)
The power of eminent domain does not depend for its existence on a
specific grant in the constitution. It is inherent in sovereignty and exists in
a sovereign state without any recognition of it in the constitution. The
provisions found in most of the state constitutions relating to the taking of property
for the public use do not by implication grant the power to the government of the
state, but limit a power which would otherwise be without limit. (Visayan Refining
Co. v. Camus [40 Phil. 550]). The constitutional restraints are public use and just
compensation.
D. Distinguished from destruction due to necessity
The destruction of the property does not come under the right of eminent
domain, but under the right of necessity, of self-preservation. The right of
necessity arises under the laws of society or society itself. It is the right of selfdefense, of self-preservation, whether applied to persons or to property. It is a
private right vested in every individual, and with which the right of the state or
state necessity has nothing to do (American Print Works vs. Lawrence, 23 N.J.L.
590). Destruction from necessity may be validly undertaken even by private
individuals. Such is not allowed in the case of eminent domain. Further, destruction
from necessity cannot require the conversion of the property taken to public use,
nor is there any need for the payment of compensation.
E. Objects of Expropriation
Anything that can come under the dominion of man is subject to expropriation. This
includes real and personal, tangible and intangible properties. Even property
already devoted to public use is still subject to expropriation, provided
this is done directly by the national legislature or under a specific grant of
authority to delegate. The only exceptions to this rule are money and
choses in action. Expropriation of money is futile inasmuch as payment of just
compensation is also money. A chose in action is essentially conjectural as to its
validity and its value.
84
Legal To take is to lay hold of, to gain or receive in possession, to seize, to deprive
one of the use or possession of, or to assume ownership (Blacks Law
Dictionary, 6th Edition, 1453). There is taking of property when
government action directly interferes with or substantially
disturbs the owners use and enjoyment of the property
(Brothers vs. US., C.A.Or., 594 F.2d 740, 741). To constitute a taking,
within constitutional limitation, it is not essential that there be physical
seizure or appropriation, and any actual or material interference with
private property rights constitutes a taking (Board of Comrs of Lake
County vs. Mentor Lagoons Inc., Com.Pl., 6 Ohio Msc. 126, 216 N.E.2d
643, 646). Also, taking of property is affected if application of zoning
law denies property owner of economically viable use of his land,
which can consist of preventing best use of land or extinguishing
fundamental attribute of ownership (Vari-Build Inc. vs. Reno, D.C.Nev.,
596 F. Supp. 673, 679).
The general rule at least is that while property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a taking.
(Pennsylvania Coal Co. v. Mahon, 260 US 393)
85
sought and, as long as public has right of use, whether exercised by one or many
members of public, a public advantage or public benefit accrues sufficient to
constitute a public use. (Montana Power Co. vs. Bokma, Mont. 457 P.2d 769, 772,
773.)
Public use, in constitutional provisions restricting the exercise of the right
to take private property in virtue of eminent domain, means a use
concerning the whole community as distinguished from particular
individuals. But each and every member of society need not be equally
interested in such use, or be personally and directly affected by it; if the
object is to satisfy a great public want or exigency, that is sufficient.
(Rindge Co. vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186).
The term may be said to mean public usefulness, utility, or advantage, or what is
productive of general benefit. It may be limited to the inhabitants of a small or
restricted locality, but must be in common, and not for a particular individual. The
use must be a needful one for the public, which cannot be surrendered without
obvious general loss and inconvenience. A public use for which land may be taken
defies absolute definition for it changes with varying conditions of society, new
appliances in the sciences, changing conceptions of scope and functions of
government, and other differing circumstances brought about by an increase in
population and new modes of communication and transportation. (Katz v. Brandon,
156 Conn., 521, 245 A.2d 579,586.)
The taking to be valid must be for public use. There was a time when it was felt that
a literal meaning should be attached to such a requirement. Whatever project is
undertaken must be for the public to enjoy, as in the case of streets or
parks. Otherwise, expropriation is not allowable. It is not any more. As
long as the purpose of the taking is public, then the power of eminent
domain comes into play. The constitution in at least two cases determines what
public use is. One is the expropriation of lands to be subdivided into small lots for
resale at cost to individuals. The other is in the transfer, through the exercise of this
power, of utilities and other private enterprise to the government. It is accurate to
state then that at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use. (Fernando, The Constitution of the
Philippines, 2nd ed., pp. 523-524)
Genuine Necessity
In the exercise of eminent domain, only as much land can be taken as is
necessary for the legitimate purpose of the condemnation. The term
necessary, in this connection, does not mean absolutely indispensable but
requires only a reasonable necessity of the taking for the stated purpose, growth
and future needs of the enterprise. (Manila Railroad Co. v. Mitchel, 50 Phil 832, 837838 [1927]).
The Legislature may directly determine the necessity for appropriating private
property for a particular improvement for public use, and it may select the exact
location of the improvement. In such a case, it is well-settled that the utility of the
proposed improvement, the existence of the public necessity for its construction,
89
the expediency of constructing it, the suitableness of the location selected, are all
questions exclusively for the legislature to determine, and the courts have no power
to interfere or to substitute their own views for those of the representatives of the
people. In the absence of some constitutional or statutory provision to the
contrary, the necessity and expediency of exercising the right of eminent
domain are questions essentially political and not judicial in their
character. (City of Manila v. Chinese Community of Manila, 40 Phil 349 [1919])
Just Compensation
Defined
Just compensation means the value of the property at the time of the
taking. It means a fair and full equivalent for the loss sustained. All the
facts as to the condition of the property and its surroundings, its improvements and
capabilities, should be considered. (Export Processing Zone Authority vs. Dulay [GR
L-59603, 29 April 1987])
Just compensation is defined as the full and fair equivalent of the property taken
from its owner by the expropriator (Manila Railroad Co. v. Velasques, 32 Phil. 286).
It has been repeatedly stressed by this Court that the measure is not the
takers gain but the owners loss. (Province of Tayabas v. Perez, 66 Phil. 467)
The word just is used to intensify the meaning of the word compensation to
convey the idea that the equivalent to be rendered for the property to be taken
shall be real, substantial, full, ample (City of Manila v. Estrada, 25 Phil. 208).
Just compensation means not only the correct amount to be paid to the
owner of the land but also the payment of the land within a reasonable
time from its taking. Without prompt payment, compensation cannot be
considered just for then the property owner is made to suffer the consequence of
being immediately deprived of his land while being made to wait for a decade or
more before actually receiving the amount necessary to cope with his loss. (Eslaban
vs. Vda. de Onorio [GR 146062, 28 June 2001])
Determination of Just Compensation
A. In General
The determination of just compensation is a function addressed to the
courts of justice and may not be usurped by any other branch or official of
the government. (Export Processing Zone Authority vs. Dulay [GR L-59603, 29
April 1987])
Upon the rendition of the order of expropriation, the court shall appoint not more
than three (3) competent and disinterested persons as commissioners to ascertain
and report to the court the just compensation for the property sought to be taken.
The order of appointment shall designate the time and place of the first session of
the hearing to be held by the commissioners and specify the time within which their
report shall be submitted to the court. (Section 5, Rule 67, 1997 Rules of Civil
Procedure) The commissioners shall assess the consequential damages to the
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property not taken and deduct from such consequential damages the consequential
benefits to be derived by the owner from the public use or purpose of the property
taken, the operation of its franchise by the corporation or the carrying on of the
business of the corporation or person taking the property. But in no case shall the
consequential benefits assessed exceed the consequential damages assessed, or
the owner be deprived of the actual value of his property so taken. (Section 6, Rule
67, 1997 Rules of Civil Procedure)
Still, according to section 8 of Rule 67, the court is not bound by the commissioners
report. It may make such order or render such judgment as shall secure to the
plaintiff the property essential to the exercise of his right of condemnation, and to
the defendant just compensation for the property expropriated. This Court may
substitute its own estimate of the value as gathered from the record (Manila
Railroad Company v. Velasquez, 32 Phil. 286).
B. Local Government Units
Section 19, Republic Act 7160. Eminent Domain. A local government unit may,
through its chief executive and acting pursuant to an ordinance, exercise
the power of eminent domain for public use, or purpose or welfare for the
benefit of the poor and the landless, upon payment of just compensation,
pursuant to the provisions of the Constitution and pertinent laws: Provided,
however, That the power of eminent domain may not be exercised unless a
valid and definite offer has been previously made to the owner, and such
offer was not accepted: Provided, further, That the local government unit
may immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the proper court
of at least fifteen percent (15%) of the fair market value of the property based
on the current tax declaration of the property to be expropriated: Provided finally,
That, the amount to be paid for the expropriated property shall be determined
by the proper court, based on the fair market value at the time of the
taking of the property.
When Determined
A. When
Where the institution of an expropriation action precedes the taking of the
property subject thereof, the just compensation is fixed as of the time of
the filing of the complaint. This is so provided by the Rules of Court, the
assumption of possession by the expropriator ordinarily being conditioned on its
deposits with the National or Provincial Treasurer of the value of the property as
provisionally ascertained by the court having jurisdiction of the proceedings. There
are instances, however, where the expropriating agency takes over the
property prior to the expropriation suit. In these instances, the just
compensation shall be determined as of the time of taking, not as of the
time of filing of the action of eminent domain. (Ansaldo vs. Tantuico [GR 50147, 3
August 1990])
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amount to be deposited shall be promptly fixed by the court. xxx (Section 2, Rule
67, 1997 Rules of Civil Procedure)
2. Revolutionary
Section 16(e) of the CARP Law provides that Upon receipt by the landowner of
the corresponding payment or, in case of rejection or no response from
the landowner, upon the deposit with an accessible bank designated by
the DAR of the compensation in cash or in LBP bonds in accordance with
this Act, the DAR shall take immediate possession of the land and shall
request the proper Register of Deeds to issue a Transfer Certificate of
Title (TCT) in the name of the Republic of the Philippines. The DAR shall
thereafter proceed with the redistribution of the land to the qualified beneficiaries.
(Association of Small Landowners in the Philippines Inc. vs. Secretary of Agrarian
Reform [GR 78741, 14 July 1989])
B. Medium
1. Traditional
The fundamental rule in expropriation matters is that the owner of the property
expropriated is entitled to a just compensation, which should be neither more nor
less, whenever it is possible to make the assessment, than the money equivalent of
said property. Just compensation has always been understood to be the just
and complete equivalent of the loss which the owner of the thing
expropriated has to suffer by reason of the expropriation. (Manila Railroad
Co. v. Velasquez, 32 Phil. 286)
Just compensation means the equivalent for the value of the property at the time of
its taking. Anything beyond that is more, and anything short of that is less, than just
compensation. It means a fair and full equivalent for the loss sustained, which is the
measure of the indemnity, not whatever gain would accrue to the expropriating
entity. The market value of the land taken is the just compensation to
which the owner of condemned property is entitled, the market value
being that sum of money which a person desirous, but not compelled to
buy, and an owner, willing, but not compelled to sell, would agree on as a
price to be given and received for such property. (J.M. Tuazon Co. v. Land
Tenure Administration, 31 SCRA 413)
The medium of payment of compensation is ready money or cash. The
condemnor cannot compel the owner to accept anything but money, nor can the
owner compel or require the condemnor to pay him on any other basis than the
value of the property in money at the time and in the manner prescribed by the
Constitution and the statutes. When the power of eminent domain is resorted to,
there must be a standard medium of payment, binding upon both parties, and the
law has fixed that standard as money in cash. (Mandl v. City of Phoenix, 18 p 2d
273.)
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Part cash and deferred payments are not and cannot, in the nature of
things, be regarded as a reliable and constant standard of compensation.
(Sacremento Southern R. Co. v. Heilbron, 156 Cal. 408, 104 pp. 979, 980.)
Just compensation for property taken by condemnation means a fair equivalent in
money, which must be paid at least within a reasonable time after the taking, and
it is not within the power of the Legislature to substitute for such payment
future obligations, bonds, or other valuable advantage. (City of Waterbury v.
Platt Bros. & Co., 56 A 856, 76 Conn, 435 citing Butler v. Ravine Road Sewer Comrs,
39 N.J.L. 665; Bloodgood v. Mohawk v. H.R.R. Co., N.Y. 18 Wend. 9 35, 31 Am. Dec.
313; Sanborn v. Helden, 51 Cal 266; Burlington & C.R. Co. v. Schweikart, 14 p. 329,
10 Colo, 178; 23 Words and Phrases, pl. 460.)
2. Revolutionary
The records of the Constitutional Commission do not provide any categorical
agreement among the members regarding the meaning to be given the concept of
just compensation as applied to the comprehensive agrarian reform program being
contemplated. There was the suggestion to fine tune the requirement to suit the
demands of the project even as it was also felt that they should leave it to
Congress to determine how payment should be made to the landowner and
reimbursement required from the farmer-beneficiaries. Such innovations as
progressive compensation and State-subsidized compensation were also
proposed. In the end, however, no special definition of the just compensation for the
lands to be expropriated was reached by the Commission. (Record of the
Constitutional Commission, Vol. 2, pp. 647, 704; Vol. 3, pp. 16-20, 243-247.)
Trial with Commissioners
In an expropriation case where the principal issue is the determination of just
compensation, a trial before the Commissioners is indispensable to allow the parties
to present evidence on the issue of just compensation. Trial with the aid of the
commissioners is a substantial right that may not be done away with capriciously or
for no reason at all. (Manila Electric Company (MERALCO) vs. Pineda [GR 59791, 13
February 1992])
Legal Interest for Expropriation Cases
Article 2209 of the Civil Code, which provides that If the obligation
consists in the payment of a sum of money, and the debtor incurs a delay,
the indemnity for damages, there being no stipulation to the contrary,
shall be the payment of the interest agreed upon, and in the absence of
stipulation, the legal interest, which is 6% per annum. Central Bank Circular
416 does not apply as it only applies to loan or forbearance of money, goods or
credits and to judgments involving such loan or forbearance of money, goods or
credits. (National Power Corporation vs. Angas [GR 60225-26, 8 May 1992])
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Writ of Possession
1. Issuance of writ of possession
A writ of execution may be issued by a court upon the filing by the
government of a complaint for expropriation sufficient in form and
substance and upon deposit made by the government of the amount
equivalent to the assessed value of the property subject to expropriation.
Upon compliance with these requirements, the issuance of the writ of possession
becomes ministerial. (Biglang-awa v. Bacalla, GR 139927 and 139936, 22 November
2000.)
The State shall, by law, and for the common good, undertake, in
cooperation with the private sector, a continuing program of urban
land reform and housing which will make available at affordable cost,
decent housing and basic services to under-privileged and homeless
citizens in urban centers and resettlement areas. It shall also promote
adequate employment opportunities to such citizens. In the
implementation of such program the State shall respect the rights of
small property owners.
furnished without a franchise from the State and which are either unnecessary in
the rural districts, such as a system of sewers, or parks and open spaces, or which
on account of the expenses it would be financially impossible to supply except
where the population is reasonably dense, such as water or gas. But in so far as
the municipality is thus authorized to exercise the functions of a private
corporation, it is clothed with the capacities of a private corporation and
may claim its rights and immunities, even as against the sovereign, and is
subject to the liabilities of such a corporation, even as against third
parties. (19 R.C.L. p. 698)
DE KNECHT VS BAUTISTA
The plan to extend EDSA to Roxas Boulevard to be ultimately linked to the Cavite
Coastal Road Project, originally called for the expropriation of properties along
Cuneta Avenue in Pasay City. Later on, however, the Ministry of Public Highways
decided to make the proposed extension pass through Fernando Rein and Del Pan
Streets. Because of the protests of residents of the latter, the Commission on
Human Settlements recommended the reversion to the original plan, but the
Ministry argued that the new route will save the government P2 million. The
government filed expropriation proceedings against the owners of Fernando Rein
and Del Pan streets, among whom was petitioner.
Held:
There is no question as to the right of the Republic of the Philippines to take private
property for public use upon the payment of just compensation. Section 2, Article IV
of the Constitution of the Philippines provides that Private property shall not be
taken for public use without just compensation. It is recognized, however, that
the government may not capriciously or arbitrarily choose what private
property should be taken. A landowner is covered by the mantle of protection
due process affords. It is a mandate of reason. It frowns on arbitrariness, it is the
antithesis of any governmental act that smacks of whim or caprice. It negates state
power to act in an oppressive manner. It is, as had been stressed so often, the
embodiment of the sporting idea off air play. In that sense, it stands as a guaranty
of justice. That is the standard that must be met by any governmental agency in the
exercise of whatever competence is entrusted to it. As was so emphatically stressed
by the present Chief Justice, Acts of Congress, as well as those of the Executive, can
deny due process only under pain of nullity.
The choice of Fernando Rein and Del Pan streets is arbitrary and should not receive
judicial approval. The Human Settlements Commission concluded that the cost
factor is so minimal that it can be disregarded in making a choice between the two
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lines. The factor of functionality strongly militates against the choice of Fernando
Rein and Del Pan streets, while the factor of social and economic impact bears
grievously on the residents of Cuneta Avenue. While the issue would seem to
boil down to a choice between people, on one hand, and progress and
development, on the other, it is to be remembered that progress and
development are carried out for the benefit of the people.
EPZA VS DULAY
The San Antonio Development Corporation was the owner of a piece of land in LapuLapu City which the EPZA expropriated in 1979. The commissioners appointed by
the trial court recommended that the San Antonio Development Corp. be paid
P15.00 per square meter. EPZA filed a petition for certiorari, arguing that under PD
1533 the compensation should be the fair and current market value declared by the
owner or the market value determined by the assessor, whichever is lower.
HELD:
The method of ascertaining just compensation under PD 1533 constitutes
impermissible encroachment on judicial prerogatives. It tends to render the
Supreme Court inutile in a matter which under the Constitution is reserved to it for
final determination. The valuation in the decree may only serve as a guiding
principle or one of the factors in determining just compensation but it may not
substitute the courts own judgment as to what amount should be awarded and how
to arrive at such amount. Although the court technically would still have the power
to determine the just compensation for the property, following the decree, its task
would be relegated to simply stating the lower value of the property as declared
either by the owner or the assessor. Just compensation means the value of the
property at the time of the taking. It means a fair and full equivalent for
the loss sustained. All the facts as to the condition of the property and its
surroundings, its improvements and capabilities should be considered. In this case,
the tax declarations used as basis for the just compensation were made long before
the declaration of martial law when the land was much cheaper. To peg the value of
the lots on the basis of those documents which are outdated would be arbitrary and
confiscatory.
MORENO VS MACTAN-CEBU AIRPORT
Held:
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In Fery, which was cited in the recent case of Reyes v. National Housing Authority,
we declared that the government acquires only such rights in expropriated parcels
of land as may be allowed by the character of its title over the properties
If land is expropriated for a particular purpose, with the condition that
when that purpose is ended or abandoned, the property shall return to its
former owner, then, of course, when the purpose is terminated or
abandoned the former owner reacquires the property so expropriated. If x
x x land is expropriated for a public street and the expropriation is granted upon
condition that the city can only use it for a public street, it returns to the former
owner, unless there is some statutory provision to the contrary x x x x If,
upon the contrary, however, the decree of expropriation gives to the
entity a fee simple title, then, of course, the land becomes the absolute
property of the expropriator, whether it be the State, a province, or
municipality, and in that case the non-user does not have the effect of
defeating the title acquired by the expropriation proceedings x x x x When
land has been acquired for public use in fee simple, unconditionally, either
by the exercise of eminent domain or by purchase, the former owner
retains no rights in the land, and the public use may be abandoned, or the
land may be devoted to a different use, without any impairment of the
estate or title acquired, or any reversion to the former owner x x x x
Our stand on the amount of repurchase price remains unperturbed. When the
State reconveys land, it should not profit from sudden appreciations in
land values. Any increase or decrease in market value due to the proposed
improvement may not be considered in determining the market value. Thus,
reconveyance to the original owner shall be for whatever amount he was paid by
the government, plus legal interest, whether or not the consideration was based on
the lands highest and best use when the sale to the State occurred.
TAXATION
A. Definition and Nature
1. Definition
a. Taxation is:
the method by which enforced proportional contributions are
exacted.
the power by which the sovereign, through its lawmaking body,
raises revenue to defray the necessary expenses of
government.
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101
B. Purpose
Taxes are the lifeblood of the government and so should be collected without
unnecessary hindrance. Despite the natural reluctance to surrender part of ones
hard-earned income to the taxing authorities, every person who is able to must
contribute his share in the running of the government. The government for its part,
is expected to respond in the form of tangible and intangible benefits intended to
improve the lives of the people and enhance their moral and material values. This
symbiotic relationship is the rationale of taxation and should dispel the erroneous
notion that it is an arbitrary method of exaction by those in the seat of power.
(Commissioner of Internal Revenue v. Algue [GR L-28896, 17 February 1988])
Revenue:
The purpose of taxation is to provide funds or property with which the State
promotes the general welfare and protection of its citizens. (51 Am. Jur. 71-73)
Raising of revenues is the principal object of taxation. (Bagatsing vs. Ramirez [GR L41631, 17 December 1976])
Non-Revenue:
Regulation:
(Aban, Benjamin. Law of Basic Taxation in the Philippines, Second Edition 1994,
page 8).
The taxing authority can select the subjects of taxation (Gomez vs. Palomar (GR L23645, 29 October 1988). The taxing power has the authority to make
reasonable and natural classifications for purposes of taxation. Where the
differentiation conforms to the practical dictates of justice and equity, it is not
discriminatory within the meaning of this clause and is therefore uniform. There is
quite a similarity then to the standard of equal protection for all that is required is
that the tax applies equally to all persons, firms and corporations placed in similar
situation. Taxpayers may be classified into different categories. It is enough
that the classification must rest upon substantial distinctions that make
real differences. (Sison v. Ancheta [GR L-59431, 25 July 1984])
Thus, a classification is reasonable where
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Still, tax collection should be made in accordance with law as any arbitrariness will
negate the very reason for government itself. It is a requirement in all
democratic regimes that it be exercised reasonably and in accordance
with the prescribed procedure. It is therefore necessary to reconcile the
apparently conflicting interests of the authorities and the taxpayers so that the real
purpose of taxation, which is the promotion of the common good, may be achieved.
If it is not, then the taxpayer has a right to complain and the courts will then come
to his succor. For all the awesome power of the tax collector, he may still be
stopped in his tracks if the taxpayer can demonstrate that the law has not been
observed. (Commissioner of Internal Revenue v. Algue [GR L-28896, 17 February
1988])
2. Local Government Units
Previously, a municipal corporation has no inherent power of taxation. To
enact a valid ordinance, the City must find in its charter the power to do
so, for said power cannot be assumed. A municipal corporation, unlike a
sovereign state, is clothed with no inherent power of taxation. Its charter
must plainly show an intent to confer that power or the corporation cannot assume
it. And the power when granted is to be construed strictissimi juris. Any doubt or
ambiguity arising out of the term used must be resolved against the municipal
corporation. (Santos Lumber Co. vs. City of Cebu, et al., 102 Phil., 870; See also
Arong vs. Raffian, 98 Phil., 422). Now, direct authority has been conferred to
local government units by the 1987 Constitution, specifically Section 5,
Article X thereof, which provides that Each local government unit shall
have the power to create its own sources of revenues and to levy taxes,
fees and charges subject to such guidelines and limitations as the
Congress may provide, consistent with the basic policy of local autonomy.
Such taxes, fees, and charges shall accrue exclusively to the local
governments.
Except as otherwise provided in the Local Government Code (RA 7160), the
province may levy only the taxes, fees, and charges as provided in Article I, Chapter
II, Title I, Book II; such the Tax on Transfer of Real Property Ownership; Tax on
Business of Printing and Publication; Franchise Tax; Tax on Sand, Gravel and Other
Quarry Resources; Professional Tax; Amusement Tax; Annual Fixed Tax For Every
Delivery Truck or Van of Manufacturers or Producers, Wholesalers of, Dealers, or
Retailers in, Certain Products (Section 134). Further, municipalities may levy taxes,
fees, and charges not otherwise levied by provinces (Section 142). Furthermore, the
city, may levy the taxes, fees, and charges which the province or municipality may
impose: Provided, however, That the taxes, fees and charges levied and collected
by highly urbanized and independent component cities shall accrue to them and
distributed in accordance with the provisions of the Local Government Code, and
Provided further that the rates of taxes that the city may levy may exceed the
maximum rates allowed for the province or municipality by not more than 50%
except the rates of professional and amusement taxes (Section 151).
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Art. VI Sec. 28
Section 28 The rule of taxation shall be uniform and equitable. The
Congress shall evolve a progressive system of taxation.
The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within
the framework of the national development program of the
Government.
Charitable institutions, churches and personages 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 shall be
exempt from taxation. (exclusively means primarily not
necessarily solely)
No law granting any tax exemption shall be passed without the
concurrence of a majority of all the Members of the Congress.
Art. XIV, Sec. 4 (3)
Section 4
xxx
106
Each local government unit shall have the power to create its own
sources of revenues and to levy taxes, fees and charges subject to
such guidelines and limitations as the Congress may provide,
consistent with the basic policy of local autonomy. Such taxes, fees,
and charges shall accrue exclusively to the local governments.
Tax Exemptions
1. Nature
Tax exemptions are either constitutional or statutory. Exemption is
granted religious and charitable institutions because they give
considerable assistance to the State in the improvement of the morality of
the people and the care of the indigent and the handicapped. (Justice Cruz,
Constitutional Law, 2000 Edition, 92-93) Statutory exceptions are granted in the
discretion of the legislature, but such law should be passed with the concurrence of
a majority of all the Members of Congress. Where the taxation is granted
gratuitously, it may be validly revoked at will, with or without cause.
However, if the exemption is granted for valuable consideration it is deemed
to partake of the nature of a contract and the obligation thereof is
protected against impairment (Ibid., 94-95)
By its very nature, the law that exempts one from tax must be clearly
expressed because the exemption cannot be created by implication.
Exemption from taxation are highly disfavored in law; and he who claims an
exemption must be able to justify his claim by the clearest grant of organic or
statute law. An exemption from the common burden cannot be permitted to exist
upon vague implication. (Asiatic Petroleum Co. vs. Llanes, 49 Phil., 466; See also
House vs. Posadas, 53 Phil., 338.)
The test of exemption from taxation is the use of the property for
purposes mentioned in the Constitution (Apostolic Prefect of the Mountain
Province vs. the Treasurer of Baguio City [GR 47252, 18 April 1941]). The phrase
exempt from taxation, as employed in the Constitution should not be
interpreted to mean exemption from all kinds of taxes. The exemption from
the payment of taxes assessed on such properties enumerated in the Constitution
are property taxes, as contra-distinguished from excise taxes. A donees gift tax is
not a property tax but an excise tax imposed on the transfer of property by way of
gift inter vivos. Its assessment was not on the property themselves. It does not rest
upon general ownership, but an excise upon the use made of the properties, upon
the exercise of the privilege of receiving the properties. The imposition of such
excise tax on property used for religious purposes do not constitute an
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Manila [GR L-16619, 29 June 1963]; citing Bentley Gray Dry Goods Co., vs. City of
Tampa 137 Fla. 641, 188 SO. 758; MacQuillin, Municipal Corporations, Vol. 9, 3rd
Edition, p. 83).
National vis-a-vis another country
Double taxation becomes obnoxious only where the taxpayer is taxed
twice for the benefit of the same governmental entity (cf. Manila vs.
Interisland Gas Service, 52 Off. Gaz. 6579, Manuf. Life Ins. Co. vs. Meer, 89 Phil.
357). Where the taxpayers would have to pay two taxes on the same
income (one in the Philippines and one in the United States, for example),
the Philippine government only receives the proceeds of one tax. As
between the Philippines, where the income was earned and where the taxpayer is
domiciled, and the United States, where that income was not earned and where the
taxpayer did not reside, it is indisputable that justice and equity demand that the
tax on the income should accrue to the benefit of the Philippines. Any relief from the
alleged double taxation should come from the United States, and not from the
Philippines, since the formers right to burden the taxpayer is solely predicated on
his citizenship, without contributing to the production of the wealth that is being
taxed. (CIR vs. Lednicky [GR L-18169, L-18286, & L-21434; 31 July 1964.])
License Fees
There are three kinds of licenses recognized by law:
1. Licenses for the regulation of useful occupations;
2. Licenses for the regulation or restriction of non-useful occupations or
enterprises; and
3. Licenses for revenue only. Non-payment of a license fee for a business
makes the business illegal unlike tax.
The amount of the fee or charge is properly considered in determining whether it is
a tax or an exercise of the police power. The amount may be so large as to itself
show that the purpose was to raise revenue and not to regulate, but in regard to
this matter there is a marked distinction between license fees imposed upon useful
and beneficial occupations which the sovereign wishes to regulate but not restrict,
and those which are inimical and dangerous to public health, morals or safety. In
the latter case the fee may be very large without necessarily being a tax. (Cooley
on Taxation, Vol. IV, pp. 3516-17)
The power to regulate as an exercise of police power does not include the
power to impose fees for revenue purposes. Fees for purely regulatory
purposes may only be of sufficient amount to include the expenses of issuing the
license and the cost of the necessary inspection or police surveillance, taking into
account not only the expense of direct regulation but also incidental expenses. (Cu
Unjieng vs. Patstone, 42 Phil. 818) The regulatory fee must be no more than
sufficient to cover the actual cost of inspection or examination as nearly as the
same can be estimated. If it were possible to prove in advance the exact cost, that
would be the limit of the fee (Manila Electric Co. vs. Auditor General, 73 Phil. 129135).
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110
Dynamic
Waivable
c. Scope
Due process applies and protects all persons, without regard to any difference of
race, color or nationality. Artificial persons are covered by the protection but
only insofar as their property is concerned (Smith Bell & Co. vs. Natividad, 40
Phil. 163). It includes aliens and their means of livelihood (Villegas v. Hiu Chiong
Tsai Pao Ho [GR L-29646, 10 Nov 1978]). Even the State is entitled to due process
(Uy vs. Genato, 57 SCRA 123, People vs. Bocar, 138 SCRA 166).
Meaning of Life, Liberty, and Property
a. Life
Life includes the right of an individual to his body in its completeness, and
extends to the use of God-given faculties which make life enjoyable (Justice
Malcolm, Philippine Constitutional Law, 380; Buck vs. Bell, 274 US 200).
The constitutional protection of the right to life is not just the protection of the right
to be alive or to the security of ones limb against physical harm. The right to life
is also the right to a good life. (Fr. Bernas, The 1987 Constitution of the
Republic of the Philippines: A commentary, 1996 Edition, 102).
b. Liberty
Liberty means the right to exist and the right to be free from arbitrary personal
restraint or servitude. It includes the right of the citizen to be free to use
facilities in all lawful ways (Rubi, et. al. vs. Provincial Board of Mindoro [GR
14078, 7 March 1919])
c. Property
Property means anything that can come under the right of ownership and
be the subject of contract. It represents more than the things that a
person owns; it includes the right to secure and dispose of them (Tonaco
vs. Thompson, 263 U.S. 197).
111
Protected property has been deemed to include vested rights as a perfect mining
claim, or a perfected homestead, or a final judgment. It also includes the right to
work and the right to earn a living (Fr. Bernas, The 1987 Constitution of the
Republic of the Philippines: A commentary, 1996 Edition, 101). Ones employment,
profession, trade, or calling is protected property (Callanta vs. Carnation Philippines
Inc., 145 SCRA 268, 279 [28 October 1986]).
A license is not considered protected property, but is deemed a privilege
withdrawn when public interest required its withdrawal. Still, a privilege may
evolve into some form of property protected by the Constitution when a holder of
such privilege has been enjoying it for so long and has put in substantial investment
making the business the source of employment for thousands. Once licenses are
issued, continued possession may become essential in the pursuit of a livelihood.
Suspension of issued licenses involve state action that adjudicated important
interests of the licensees. (Bell vs. Burson, 402 US 535, 539 [1971])
Public office is not property but a public trust or agency. The right to office,
however, is protected right. Due process may be relied upon by public officials to
protect the security of tenure which in the limited sense is analogous to property
(Morfe vs. Mutuc, [GR L-20387, 31 January 1968]).
Substantive Due Process
Substantive due process requires the intrinsic validity of the law in interfering
with the rights of the person to his life, liberty or property. The inquiry is whether
the law is a proper exercise of legislative power.
Requisites:
The means are reasonable for the accomplishment of the purpose of
the law; and
The law must be intended for the interest of the public rather than for
private interest.
Procedural Due Process
The justice that procedural due process guarantees is the one which hears before
it condemns, which proceeds upon inquiry and renders judgment only after trial.
(Daniel Webster, Dartmouth College vs. Woodward, 4 Wheaton 518) The twin
requirements of notice and hearing constitutes the essential elements of
due process and neither of these elements can be eliminated without
running afoul of the constitutional guaranty. (Vinta Maritime Co. Inc. vs. NLRC,
286 SCRA 656)
Requisites:
There must be an impartial tribunal clothed with judicial power to hear
and determine the matter before it.
The court must have jurisdiction over the person of the defendant and
over the property which is the subject matter of the proceeding, if
any.
112
113
was confirmed by the court. However, about seven years after the confirmation of
this sale, a motion was made by Vicente Palanca, as administrator of the estate of
the original defendant, wherein the applicant requested the court to set aside the
order of default and the judgment, and to vacate all the proceedings subsequent
thereto. The basis of this application was that the order of default and the
judgment rendered thereon were void because the court had never
acquired jurisdiction over the defendant or over the subject of the action.
ISSUE:
Whether or not the lower court acquired jurisdiction over the defendant and the
subject matter of the action
Whether or not due process of law was observed
RULING:
On Jurisdiction
The word jurisdiction is used in several different, though related, senses since it
may have reference (1) to the authority of the court to entertain a particular
kind of action or to administer a particular kind of relief, or it may refer to the
power of the court over the parties, or (2) over the property which is the
subject to the litigation.
The sovereign authority which organizes a court determines the nature and extent
of its powers in general and thus fixes its competency or jurisdiction with reference
to the actions which it may entertain and the relief it may grant.
How Jurisdiction is Acquired
Jurisdiction over the person is acquired by the voluntary appearance of a
party in court and his submission to its authority, or it is acquired by the
coercive power of legal process exerted over the person.
Jurisdiction over the property which is the subject of the litigation may
result either from a seizure of the property under legal process, whereby it
is brought into the actual custody of the law, or it may result from the
institution of legal proceedings wherein, under special provisions of law, the
power of the court over the property is recognized and made effective. In the latter
case the property, though at all times within the potential power of the court, may
never be taken into actual custody at all. An illustration of the jurisdiction acquired
by actual seizure is found in attachment proceedings, where the property is seized
at the beginning of the action, or some subsequent stage of its progress, and held
to abide the final event of the litigation. An illustration of what we term potential
jurisdiction over the res, is found in the proceeding to register the title of land under
our system for the registration of land. Here the court, without taking actual
physical control over the property assumes, at the instance of some person claiming
to be owner, to exercise a jurisdiction in rem over the property and to adjudicate
the title in favor of the petitioner against all the world.
118
regularity and security of the mail service. It will be noted, furthermore, that the
provision of our law relative to the mailing of notice does not absolutely require the
mailing of notice unconditionally and in every event, but only in the case where the
defendant's residence is known. In the light of all these facts, it is evident that
actual notice to the defendant in cases of this kind is not, under the law, to be
considered absolutely necessary.
The idea upon which the law proceeds in recognizing the efficacy of a means of
notification which may fall short of actual notice is apparently this: Property is
always assumed to be in the possession of its owner, in person or by
agent; and he may be safely held, under certain conditions, to be affected
with knowledge that proceedings have been instituted for its
condemnation and sale.
Did the failure of the clerk to send notice to defendants last known address
constitute denial of due process?
The observations which have just been made lead to the conclusion that the failure
of the clerk to mail the notice, if in fact he did so fail in his duty, is not such an
irregularity, as amounts to a denial of due process of law; and hence in our opinion
that irregularity, if proved, would not avoid the judgment in this case. Notice
was given by publication in a newspaper and this is the only form of notice
which the law unconditionally requires. This in our opinion is all that was
absolutely necessary to sustain the proceedings.
It will be observed that in considering the effect of this irregularity, it makes a
difference whether it be viewed as a question involving jurisdiction or as a question
involving due process of law. In the matter of jurisdiction there can be no distinction
between the much and the little. The court either has jurisdiction or it has not; and
if the requirement as to the mailing of notice should be considered as a step
antecedent to the acquiring of jurisdiction, there could be no escape from the
conclusion that the failure to take that step was fatal to the validity of the
judgment. In the application of the idea of due process of law, on the other hand, it
is clearly unnecessary to be so rigorous. The jurisdiction being once established, all
that due process of law thereafter requires is an opportunity for the defendant to be
heard; and as publication was duly made in the newspaper, it would seem highly
unreasonable to hold that failure to mail the notice was fatal. We think that in
applying the requirement of due process of law, it is permissible to reflect upon the
purposes of the provision which is supposed to have been violated and the principle
underlying the exercise of judicial power in these proceedings. Judge in the light of
these conceptions, we think that the provision of Act of Congress declaring that no
person shall be deprived of his property without due process of law has not been
infringed.
Ang Tibay v. CIR
Facts:
120
Ang Tibay, has filed an opposition both to the motion for reconsideration of the CIR
and to the motion for new trial of the National Labor Union.
The Supreme Court found it not necessary to pass upon the motion for
reconsideration of the Solicitor-General, as it found no substantial evidence to
indicate that the exclusion of the 89 laborers here was due to their union affiliation
or activity. The Court granted the motion for a new trial and the entire record of this
case shall be remanded to the CIR, with instruction that it reopen the case, receive
all such evidence as may be relevant, and otherwise proceed in accordance with the
requirements set forth.
1.
The Court of Industrial Relations; Departure from rigid concept of
separation of powers
The Court of Industrial Relations is a special court whose functions are specifically
stated in the law of its creation (CA 103). It is more an administrative board than a
part of the integrated judicial system of the nation. It is not intended to be a mere
receptive organ of the Government. Unlike a court of justice which is essentially
passive, acting only when its jurisdiction is invoked and deciding only cases that are
presented to it by the parties litigant, the function of the Court of Industrial
Relations, as will appear from perusal of its organic law, is more active, affirmative
and dynamic. It not only exercises judicial or quasi-judicial functions in the
determination of disputes between employers and employees but its functions are
far more comprehensive and extensive. It has jurisdiction over the entire
Philippines, to consider, investigate, decide, and settle any question, matter
controversy or dispute arising between, and/or affecting, employers and employees
or laborers, and landlords and tenants or farm-laborers, and regulate the relations
between them, subject to, and in accordance with, the provisions of CA 103 (section
1). It shall take cognizance for purposes of prevention, arbitration, decision and
settlement, of any industrial or agricultural dispute causing or likely to cause a
strike or lockout, arising from differences as regards wage shares or compensation,
hours of labor or conditions of tenancy or employment, between employers and
employees or laborers and between landlords and tenants or farm-laborers,
provided that the number of employees, laborers or tenants or farm-laborers
involved exceeds thirty, and such industrial or agricultural dispute is submitted to
the Court by the Secretary of Labor or by any or both of the parties to the
controversy and certified by the Secretary of Labor as existing and proper to be
dealt with by the Court for the sake of public interest. (Section A, ibid.) It shall,
before hearing the dispute and in the course of such hearing, endeavor to reconcile
the parties and induce them to settle the dispute by amicable agreement.
(Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it
shall investigate and study all pertinent facts related to the industry concerned or to
the industries established in a designated locality, with a view to determining the
necessity and fairness of fixing and adopting for such industry or locality a minimum
wage or share of laborers or tenants, or a maximum canon or rental to be paid by
the inquilinos or tenants or lessees to landowners. (Section 5, ibid.) In fine, it may
appeal to voluntary arbitration in the settlement of industrial disputes; may employ
mediation or conciliation for that purpose, or recur to the more effective system of
official investigation and compulsory arbitration in order to determine specific
121
The statute provides that the rules of evidence prevailing in courts of law
and equity shall not be controlling. The obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of technical
rules so that the mere admission of matter which would be deemed
incompetent in judicial proceedings would not invalidate the administrative
order. But this assurance of a desirable flexibility in administrative procedure
does not go so far as to justify orders without a basis in evidence having
rational probative force. Mere uncorroborated hearsay or rumor does not
constitute substantial evidence.
e. The decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected. Only by confining the administrative tribunal to the
evidence disclosed to the parties, can the latter be protected in their right to
know and meet the case against them. It should not, however, detract from
their duty actively to see that the law is enforced, and for that purpose, to
use the authorized legal methods of securing evidence and informing itself of
facts material and relevant to the controversy. Boards of inquiry may be
appointed for the purpose of investigating and determining the facts in any
given case, but their report and decision are only advisory. (Section 9, CA
103.) The CIR may refer any industrial or agricultural dispute of any matter
under its consideration or advisement to a local board of inquiry, a provincial
fiscal, a justice of the peace or any public official in any part of the Philippines
for investigation, report and recommendation, and may delegate to such
board or public official such powers and functions as the CIR may deem
necessary, but such delegation shall not affect the exercise of the Court itself
of any of its powers (Section 10)
f. The CIR or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy,
and not simply accept the views of a subordinate in arriving at a
decision. It may be that the volume of work is such that it is literally
impossible for the titular heads of the CIR personally to decide all
controversies coming before them. There is no statutory authority to
authorize examiners or other subordinates to render final decision, with right
to appeal to board or commission, to solve the difficulty.
g. The CIR should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various
issues involved, and the reasons for the decisions rendered. The
performance of this duty is inseparable from the authority conferred upon it.
4.
The interest of justice would be better served if the movant is given opportunity to
present at the hearing the documents referred to in his motion and such other
evidence as may be relevant to the main issue involved. The legislation which
created the Court of Industrial Relations and under which it acts is new. The failure
to grasp the fundamental issue involved is not entirely attributable to the parties
adversely affected by the result.
PEOPLE VS CAYAT
123
Facts:
Law prohibits any member of a non-Christian tribe to buy, receive, have
in his possession, or drink, any intoxicating liquors of any kind. The law,
Act No. 1639, exempts only the so-called native wines or liquors which the
members of such tribes have been accustomed to take.
Issue:
Whether or Not the law denies equal protection to one prosecuted and
sentenced for violation of said law.
Held:
No. It satisfies the requirements of a valid classification, one of which is
that the classification under the law must rest on real or substantial
distinctions.
The distinction is reasonable. The classification between the members of the nonChristian and the members of the Christian tribes is not based upon accident of
birth or parentage but upon the degree of civilization and culture. The term nonChristian tribes refers to a geographical area and more directly to natives of the
Philippines of a low grade civilization usually living in tribal relationship apart from
settled communities. The distinction is reasonable for the Act was intended to meet
the peculiar conditions existing in the non- Christian tribes
The prohibition is germane to the purposes of the law. It is designed to
insure peace and order in and among the non- Christian tribes has often
resulted in lawlessness and crime thereby hampering the efforts of the
government to raise their standards of life and civilization. This law is not
limited in its application to conditions existing at the time of the enactment. It is
intended to apply for all times as long as those conditions exist. The Act applies
equally to all members of the class. That it may be unfair in its operation
against a certain number of non- Christians by reason of their degree of culture is
not an argument against the equality of its operation nor affect the reasonableness
of the classification thus established.
124
The School grants foreign-hires certain benefits not accorded local-hires. These
include housing, transportation, shipping costs, taxes, and home leave travel
allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%) more
than local-hires. The School justifies the difference on two "significant economic
disadvantages" foreign-hires have to endure, namely: (a) the "dislocation factor"
and (b) limited tenure.
Held:
That public policy abhors inequality and discrimination is beyond contention. Our
Constitution and laws reflect the policy against these evils. The Constitution in the
Article on Social Justice and Human Rights exhorts Congress to "give highest
priority to the enactment of measures that protect and enhance the right
of all people to human dignity, reduce social, economic, and political
inequalities."
International law, which springs from general principles of law, likewise
proscribes discrimination. General principles of law include principles of equity,
i.e., the general principles of fairness and justice, based on the test of what is
reasonable. The Universal Declaration of Human Rights, the International Covenant
on Economic, Social, and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention against
Discrimination in Education, the Convention (No. 111) Concerning Discrimination in
Respect of Employment and Occupation - all embody the general principle
against discrimination, the very antithesis of fairness and justice. The
Philippines, through its Constitution, has incorporated this principle as
part of its national laws.
The Constitution specifically provides that labor is entitled to "humane
conditions of work." These conditions are not restricted to the physical workplace
- the factory, the office or the field - but include as well the manner by which
employers treat their employees.
The Constitution also directs the State to promote "equality of
employment opportunities for all." Similarly, the Labor Code provides that the
State shall "ensure equal work opportunities regardless of sex, race or
creed." It would be an affront to both the spirit and letter of these provisions if the
State, in spite of its primordial obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and discriminatory terms and conditions of
employment.
The foregoing provisions impregnably institutionalize in this jurisdiction
the long honored legal truism of "equal pay for equal work." Persons who
work with substantially equal qualifications, skill, effort and responsibility,
under similar conditions, should be paid similar salaries. This rule applies to
the School, its "international character" notwithstanding.
The School contends that petitioner has not adduced evidence that local-hires
perform work equal to that of foreign-hires. The Court finds this argument a little
125
cavalier. If an employer accords employees the same position and rank, the
presumption is that these employees perform equal work. This presumption
is borne by logic and human experience. If the employer pays one employee
less than the rest, it is not for that employee to explain why he receives
less or why the others receive more. That would be adding insult to injury. The
employer has discriminated against that employee; it is for the employer to explain
why the employee is treated unfairly.
III. REQUIREMENTS OF FAIR PROCEDURE
Arrest, Searches and Seizures
A search warrant is an order in writing issued in the name of the People of the
Philippines, signed by a judge and directed to a peace officer, commanding
him to search for personal property described therein and bring it before the
court. ( Section 1, Rule 126, Revised Rules of Court)
It is undisputed that only judges have the power to issue search warrants. (Salazar
vs. Achacoso, 183 SCRA 145 [1990]) This function is exclusively judicial. Inherent in
the courts power to issue search warrants is the power to quash warrants already
issued. In this connection, the Supreme Court has ruled that the motion to quash
should be filed in the court that issued the warrant unless a criminal case has
already been instituted in another court, in which case, the motion should be filed
with the latter. (People vs. Court of Appeals, 291 SCRA 400 [1998]).
Because of the fundamental public interest in implementing the criminal law, the
search warrant, a heretofore effective and constitutionally acceptable enforcement
tool, should not be suppressed on the basis of surmise and without solid evidence
supporting the change. Forbidding the warrant and insisting on the
subpoena instead when the custodian of the object of the search is not
then suspected of crime, involves serious hazards to criminal
investigation. (Zurcher vs. Stanford Daily [436 US 547, 31 May 1978])
What constitutes a reasonable or even an unreasonable search in any
particular case is purely a judicial question, determinable from a
consideration of the circumstances involved. (Valmonte v. De Villa, 178 SCRA
211, 216 [1989])
The house of every one is to him as his castle and fortress, as well for his defence
against injury and violence, as for his repose. (Semaynes Case, 77 Eng. Rep. 194, 5
Co. Rep. 91a, 91b, 195 [K. B.]) The overriding respect for the sanctity of the home
that has been embedded in our traditions since the origins of the Republic meant
that absent a warrant or exigent circumstances, police could not enter a
home to make an arrest. An arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a dwelling in which
the suspect lives when there is reason to believe the suspect is within.
(Payton v. New York , 445 U. S. 573, 603-604 (1980])
To Whom Directed
126
following cases, the search was held to be incidental to a lawful arrest because of
suspicious circumstances: People v. Tangliben (accused was acting
suspiciously), People v. Malmstedt (a bulge on the accuseds waist), and People v.
de Guzman (likewise a bulge on the waist of the accused, who was wearing tightfitting clothes). There is, however, another set of jurisprudence that deems reliable
information sufficient to justify a search incident to a warrantless arrest under
Section 5 (a), Rule 113, thus deviating from Burgos. To this class of cases belong
People v. Maspil, Jr., People v. Bagista, People v. Balingan, People v. Lising, People
v. Montilla, People v. Valdez, and People v. Gonzales. In these cases, the
arresting authorities were acting on information regarding an offense but
there were no overt acts or suspicious circumstances that would indicate
that the accused has committed, is actually committing, or is attempting
to commit the same. Significantly, these cases, except the last two, come
under some other exception to the rule against warrantless searches.
Thus, Maspil, Jr. involved a checkpoint search, Balingan was a search of a moving
vehicle, Bagista was both, and Lising and Montilla were consented searches.
Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in
turn, more faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase
in his presence therein, connoting personal knowledge on the part of the arresting
officer. (People vs. Tudtud [GR 144037, 26 September 2003])
In fine, probable cause exists in the following instances: (a) where the
distinctive odor of marijuana emanated from the plastic bag carried by the accused;
(People v. Claudio, 160 SCRA 646 [1988]) (b) where an informer positively identified
the accused who was observed to be acting suspiciously; (People v. Tangliben, 184
SCRA 220 [1990]) (c) where the accused who were riding a jeepney were stopped
and searched by policemen who had earlier received confidential reports that said
accused would transport a quantity of marijuana; (People v. Maspil, Jr., 188 SCRA
751 [1990]) (d) where Narcom agents had received information that a Caucasian
coming from Sagada, Mountain Province had in his possession prohibited drugs and
when the Narcom agents confronted the accused Caucasian because of a
conspicuous bulge in his waistline, he failed to present his passport and other
identification papers when requested to do so; (People v. Malmsteadt, 198 SCRA
401 [1991]) (f) where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent or spy
one who participated in the drug smuggling activities of the syndicate to which
the accused belong that said accused were bringing prohibited drugs into the
country; (People v. Lo Ho Wing, 193 SCRA 122 [1991]) (g) where the arresting
officers had received a confidential information that the accused, whose identity as
a drug distributor was established in a previous test-buy operation, would be
boarding MV Dona Virginia and probably carrying shabu with him; (People v.
Saycon, 236 SCRA 325 [1994]) (h) where police officers received an information
that the accused, who was carrying a suspicious-looking gray luggage bag, would
transport marijuana in a bag to Manila; (People v. Balingan, 241 SCRA 277 [1995])
and (i) where the appearance of the accused and the color of the bag he was
carrying fitted the description given by a civilian asset. (People v. Valdez, 304 SCRA
140 [1999])
b) Personal determination by judge
129
In General
Personal examination by the judge of the complainant and his witnesses is
necessary to enable him to determine the existence or non-existence of a probable
cause, pursuant to Article III, Section 2, Article III of the 1987 constitution , and
Section 4, Rule 126 of the Revised Rules of Court, both of which prohibit the
issuance of warrants except upon probable cause. The determination of
whether or not a probable cause exists calls for the exercise of judgment
after a judicial appraisal of facts and should not be allowed to be
delegated in the absence of any rule to the contrary. (Bache & Co. (Phil.) Inc. vs.
Ruiz [GR L-32409, 27 February 1971]; Codal references modified to suit present
Constitution and Rules of Court)
c) Examination of witnesses
The implementing rule in the Revised Rules of Court, Section 5, Rule 126, is more
emphatic and candid, for it requires the judge, before issuing a search warrant, to
personally examine on oath or affirmation the complainant and any
witnesses he may produce. Mere affidavits of the complainant and his
witnesses are thus not sufficient. The examining Judge has to take depositions
in writing of the complainant and the witnesses he may produce and attach them to
the record. (Roan v. Gonzales, GR 71410, 25 November 1986, 145 SCRA 694)
Listening to the stenographers readings of her notes, to a few words of warning
against the commission of perjury, and administering the oath to the complainant
and his witness; cannot be consider a personal examination. The reading of the
stenographic notes to the Judge did not constitute sufficient compliance with the
constitutional mandate and the rule; for by that manner the Judge did not have the
opportunity to observe the demeanor of the complainant and his witness, and to
propound initial and follow-up questions which the judicial mind, on account of its
training, was in the best position to conceive. These were important in arriving at a
sound inference on the all-important question of whether or not there was probable
cause. (Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971])
Sufficiency of deposition or affidavit
The true test of sufficiency of a deposition or affidavit to warrant issuance of a
search warrant is whether it has been drawn in a manner that perjury could be
charged thereon and the affiant be held liable for damage caused. The oath
required must refer to the truth of the facts within the personal knowledge of the
applicant for search warrant, and/or his witnesses, not of the facts merely reported
by a person whom one considers to be reliable. The oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or his witnesses,
because the purpose thereof is to convince the committing magistrate, not the
individual making the affidavit and seeking the issuance of the warrant, of the
existence of probable cause. (Alvarez vs. Court of First Instance of Tayabas [GR
45358, 29 January 1937])
130
d) Particularity of description
Purpose
1. Description of Place
The rule is that a description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place
intended to be searched. (Prudente vs. Dayrit [GR 82870, 14 December 1989])
2. Description of items to be seized
While it is true that the property to be seized under a warrant must be particularly
described therein and no other property can be taken thereunder, yet the
description is required to be specific only in so far as the circumstances
will ordinarily allow. (In People v. Rubio, 57 Phil. 384, 389 [1932]) Where by the
nature of the goods to be seized, their description must be rather general, it is not
required that a technical description be given, as this would mean that no warrant
could issue. As a corollary, however, we could not logically conclude that where the
description of those goods to be seized have been expressed technically, all others
of a similar nature but not bearing the exact technical descriptions could not be
lawfully subject to seizure. Otherwise, the reasonable purpose of the warrant issued
would be defeated by mere technicalities. (Yousef Al-Ghoul vs. Court of Appeals [GR
126859, 4 September 2001])
Tests A search warrant may be said to particularly describe the things to be seized
when the description therein is as specific as the circumstances will
ordinarily allow (People vs. Rubio; 57 Phil. 384); or when the description
expresses a conclusion of fact not of law by which the warrant
officer may be guided in making the search and seizure (idem., dissent of
Abad Santos, J.,); or when the things described are limited to those which
bear direct relation to the offense for which the warrant is being issued
(Sec. 3, Rule 126, Revised Rules of Court).
One of the tests to determine the particularity in the description of objects to be
seized under a search warrant is when the things described are limited to
those which bear direct relation to the offense for which the warrant is
being issued. (Bache and Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823, 835 [1971])
This interdiction against warrantless searches and seizures, however, is not
absolute and such warrantless searches and seizures have long been deemed
permissible by jurisprudence in instances of:
131
1.
2.
3.
4.
5.
6.
The last includes a valid warrantless search and seizure pursuant to an equally valid
warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected
with a valid warrant of arrest, the Rules of Court recognize permissible
warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests
effected in hot pursuit, and (3) arrests of escaped prisoners. (People vs.
Chua Ho San [GR 128222, 17 June 1999])
Valid Waiver
The constitutional immunity from unreasonable searches and seizures,
being a personal one cannot he waived by anyone except the person
whose rights are invaded or one who is expressly authorized to do so in
his or her behalf (De Garcia v. Locsin, 65 Phil. 689 695). The consent must be
voluntary in order to validate an otherwise illegal detention and search, i.e., the
consent is unequivocal, specific, and intelligently given, uncontaminated by
any duress or coercion. (68 Am Jur 2d Searches and Seizures, 135.) Hence,
consent to a search is not to be lightly inferred, but must be shown by clear and
convincing evidence. (68 Am Jur 2d Searches and Seizures, 136.)
The Supreme Court is not unmindful of cases upholding the validity of consented
warrantless searches and seizure. But in these cases, the police officers request to
search personnel effects was orally articulated to the accused and in such language
that left no room for doubt that the latter fully understood what was requested. In
some instance, the accused even verbally replied to the request demonstrating that
he also understood the nature and consequences of such request. (People vs. Chua
Ho San, 308 SCRA 432 [1999])
The question whether a consent to a search was in fact voluntary is a question of
fact to be determined from the totality of all the circumstances. (Schneckloth vs.
Bustamonte, 412 U.S. 218) In case of consented searches or waiver of the
constitutional guarantee against obtrusive searches, it is fundamental that to
constitute a waiver of a constitutional right, it must first appear, first, that
the right exists; secondly, that the person involved had knowledge, actual
or constructive, of the existence of such a right; and lastly, that said
person had an actual intention to relinquish the right. ( People v. Burgos,
144 SCRA 1, 16 [1986]; citing Pasion Vda. de Garcia v. Locsin, 65 Phil 689 [1938];
67 C. J., 299)
Relevant to this determination are the following characteristics of the person giving
consent and the environment in which consent is given: (1) the age of the
defendant; (2) whether he was in a public or secluded location; (3) whether he
132
objected to the search or passively looked on; (4) the education and intelligence of
the defendant; (5) the presence of coercive police procedures; (6) the defendants
belief that no incriminating evidence will be found; (7) the nature of the police
questioning; (8) the environment in which the questioning took place; and (9) the
possibly vulnerable subjective state of the person consenting. It is the State which
has the burden of proving, by clear and positive testimony, that the necessary
consent was obtained and that it was freely and voluntarily given. (United States vs.
Tillman, 963 F. 2d 137; Florida vs. Royer, 460 U.S. 491; United States vs.
Mendenhall, 446 U.S. 544.)
Implied acquiescence to the search, if there was any, could not have been
more than mere passive conformity given under intimidating or coercive
circumstances and is thus considered no consent at all within the purview
of the constitutional guarantee. (People v. Encinada, 280 SCRA 72, 91 [1997];
citing Aniog v. Commission on Elections, 237 SCRA 424, 436-437 [1994]) In any
event, the failure to resist or object to the execution of the warrant does not
constitute an implied waiver of constitutional right. It is, as Judge Cooley observes,
but a submission to the authority of the law. (Const. Lim., 8th ed., Vol. I, I,
630.) As the constitutional guaranty is not dependent upon any affirmative act of
the citizen, the courts do not place the citizen in the position of either contesting an
officers authority by force, or waiving his constitutional rights; but instead they
hold that a peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the supremacy of the
law. (56 C. J., pp. 1180, 1181.)
A search incident to a lawful arrest is limited to the person of the one
arrested and the premises within his immediate control. The rationale for
permitting such a search is to prevent the person arrested from obtaining
a weapon to commit violence, or to reach for incriminatory evidence and
destroy it.
It is entirely reasonable for the arresting officer to search for and seize any evidence
on the arrestees person in order to prevent its concealment or destruction. And the
area into which an arrestee might reach in order to grab a weapon or evidentiary
items must, of course, be governed by a like rule. A gun on a table or in a drawer in
front of one who is arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested. There is ample justification,
therefore, for a search of the arrestees person and the area within his
immediate control construing that phrase to mean the area from within
which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any
room other than that in which an arrest occurs or, for that matter, for
searching through all the desk drawers or other closed or concealed areas
in that room itself. (Chimel v. California; 23 L. Ed. 2d 685, 23 June 1969)
Plain view doctrine
1. Elements
133
Under the plain view doctrine, unlawful objects within the plain view
of an officer who has the right to be in the position to have that view are
subject to seizure and may be presented in evidence. (People v. Musa) For
this doctrine to apply, there must be:
a. Prior justification;
b. Inadvertent discovery of the evidence; and
c. Immediate apparent illegality of the evidence before the police.
(People v. Musa)
The elements of plain-view are:
a. A prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties;
b. The evidence was inadvertently discovered by the police who have the right
to be where they are;
c. The evidence must be immediately apparent;
d. Plain view justified mere seizure of evidence without further search. (People
v. Bolasa, 378 Phil. 1073, 1078-1079 [1999])
2. When object is in plain view
The law enforcement officer must lawfully make an initial intrusion or properly
be in a position from which he can particularly view the area. (Harris v.
United States, supra) In the course of such lawful intrusion, he came inadvertently
across a piece of evidence incriminating the accused. (Coolidge v. New Hampshire,
supra). The object must be open to eye and hand and its discovery
inadvertent. (Roan v. Gonzales, 145 SCRA 687, 697 [1986]) It is clear that an
object is in plain view if the object itself is plainly exposed to sight. The difficulty
arises when the object is inside a closed container. Where the object seized was
inside a closed package, the object itself is not in plain view and therefore
cannot be seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, or if
its contents are obvious to an observer, then the contents are in plain
view and may be seized. In other words, if the package is such that an
experienced observer could infer from its appearance that it contains the prohibited
article, then the article is deemed in plain view. (Robbins v. California, 453 U.S. 420,
69 L. Ed. 2d 744, 751 [1981]) It must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband or otherwise
subject to seizure. (People v. Musa [GR 96177, 27 January 1993])
3. Plain-view objects as evidence
The warrantless search and seizure, as an incident to a suspects lawful arrest, may
extend beyond the person of the one arrested to include the premises or
surroundings under his immediate control. Objects in the plain view of an officer
who has the right to be in the position to have that view are subject to seizure and
may be presented as evidence. When the discovery of the evidence did not
constitute a search, but where the officer merely saw what was placed before him in
full view, the warrantless seizure of the object was legal on the basis of the plain
view doctrine and upheld the admissibility of said evidence. (People v. Musa [GR
134
96177, 27 January 1993]) Merely to observe and look at that which is in plain sight
is not a search. Having observed that which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where
the contraband articles are identified without a trespass on the part of the arresting
officer, there is not the search that is prohibited by the constitution (US v. Lee 274
US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726
[1963]; Moore v. State, 429 SW2d 122 [1968]).
4. Limitations to plain-view
The plain view doctrine may not be used to launch unbridled searches
and indiscriminate seizures nor to extend a general exploratory search
made solely to find evidence of defendants guilt. The plain view doctrine is
usually applied where a police officer is not searching for evidence against
the accused, but nonetheless inadvertently comes across an incriminating
object. What the plain view cases have in common is that the police officer in
each of them had a prior justification for an intrusion in the course of which he came
inadvertently across a piece of evidence incriminating the accused. The doctrine
serves to supplement the prior justification whether it be a warrant for
another object, hot pursuit, search incident to lawful arrest, or some other
legitimate reason for being present unconnected with a search directed
against the accused and permits the warrantless seizure. Of course, the
extension of the original justification is legitimate only where it is immediately
apparent to the police that they have evidence before them; the plain view
doctrine may not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges. The plain view doctrine
neither justify the seizure of the object where the incriminating nature of
the object is not apparent from the plain view of the object. (People v.
Musa [GR 96177, 27 January 1993])
Once the valid portion of the search warrant has been executed, the plain view
doctrine can no longer provide any basis for admitting the other items
subsequently found. As has been explained that What the plain view cases have
in common is that the police officer in each of them had a prior justification for an
intrusion in the course of which he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement the prior justification
whether it be a warrant for another object, hot pursuit, search incident to lawful
arrest, or some other legitimate reason for being present unconnected with a
search directed against the accused and permits the warrantless seizure. Of
course, the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the plain
view doctrine may not be used to extend a general exploratory search from one
object to another until something incriminating at last emerges. (People vs.
Salanguit [GR 133254-55, 19 April 2001] citing Coolidge v. New Hampshire, 403 U.S.
433,29 L. Ed. 2d 564 [1971])
Stop and frisk
135
the arrest of an accused. What is required, rather, is that the judge must
have sufficient supporting documents (such as the complaint, affidavits,
counter-affidavits, sworn statements of witnesses or transcript of
stenographic notes, if any) upon which to make his independent judgment
or, at the very least, upon which to verify the findings of the prosecutor as
to the existence of probable cause. The point is: he cannot rely solely and
entirely on the prosecutors recommendation, as Respondent Court did in
this case. Although the prosecutor enjoys the legal presumption of regularity in the
performance of his official duties and functions, which in turn gives his report the
presumption of accuracy, the Constitution, we repeat, commands the judge to
personally determine probable cause in the issuance of warrants of arrest. This
Court has consistently held that a judge fails in his bounden duty if he relies merely
on the certification or the report of the investigating officer. (Ho vs. People, 280
SCRA 365)
The question whether probable cause exists or not must depend upon
the judgment and discretion of the judge or magistrate issuing the
warrant. It does not mean that particular facts must exist in each
particular case. It simply means that sufficient facts must be presented to
the judge or magistrate issuing the warrant to convince him, not that the
particular person has committed the crime, but that there is probable
cause for believing that the person whose arrest is sought committed the
crime charged. No rule can be laid down which will govern the discretion of the
court in this matter. If he decides, upon the proof presented, that probable cause
exists, no objection can be made upon constitutional grounds against the issuance
of the warrant. His conclusion as to whether probable cause existed or not is final
and conclusive. If he is satisfied that probable cause exists from the facts stated
in the complaint, made upon the investigation by the prosecuting attorney, then his
conclusion is sufficient upon which to issue the warrant for arrest. He may, however,
if he is not satisfied, call such witnesses as he may deem necessary before issuing
the warrant. The issuance of the warrant of arrest is prima facie evidence that, in
his judgment at least, there existed probable cause for believing that the person
against whom the warrant is issued is guilty of the crime charged. There is no law
which prohibits him from reaching the conclusion that probable cause exists from
the statement of the prosecuting attorney alone, or any other person whose
statement or affidavit is entitled to credit in the opinion of the judge or magistrate.
Section 5. Arrest without warrant; when lawful. A peace officer or a private
person may, without a warrant, arrest a person:
1. When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
2. When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
3. When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.
139
knowledge or view of the crime right after its commission. (People vs. Doria,
301 SCRA 668)
2. Has just been committed
It is not sufficient that a crime was indeed committed but it is required that the said
crime has just been committed. The proximity of time of commission of the
crime must be close to the time of the arrest. Otherwise, the arrest is
illegal. (Pineda, Ernesto L., The Revised Rules on Criminal Procedure, 2003 Edition,
161.)
Marked Money
The discovery of the marked money on [a person] did not mean he was caught [in
fragrante delicto]. The marked money was not prohibited per se. Even if it were,
that fact alone would not retroactively validate the warrantless search and seizure.
(People vs. Enrile [GR 74189, 26 May 1993])
Lack of Urgency
Applications made during weekends and holidays. The Supreme Courts Circular 19,
dated 14 August 1987, which reads 3. Applications filed after office hours, during
Saturdays, Sundays and holidays shall likewise be taken cognizance of and acted
upon by any judge of the court having jurisdiction of the place to be searched, but
in such cases the applicant shall certify and state the facts under oath, to the
satisfaction of the judge, that the issuance is urgent merely provides for a
guideline, departure from which would not necessarily affect the validity of an
otherwise valid search warrant. (Prudente vs. Dayrit [GR 82870, 14 December
1989])
Effect of Entry of Plea
By pleading not guilty at their arraignment, the accused submitted to the
jurisdiction of the trial court, thereby curing any defect in their arrest, for the
legality of an arrest affects only the jurisdiction of the court over their persons.
(People vs. Plana [GR 128285, 27 November 2001])
Validity of Conviction
The illegal arrest of an accused is not sufficient cause for setting aside a
valid judgment rendered upon a sufficient complaint after trial free from
error. (People vs. De Guzman, 224 SCRA 93, 100 [1993]). The warrantless arrest,
even if illegal, cannot render void all other proceedings including those
leading to the conviction of the appellants and his co-accused, nor can the
state be deprived of its right to convict the guilty when all the facts on record
point to their culpability. (People vs. Manlulu, 231 SCRA 701, 710 [1994]; People vs.
De Guia, 227 SCRA 614, 626 [1993])
141
Between the inherent right of the state to protect its existence and
promote public welfare and an individuals right against a warrantless
search w/c is, however, reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the
military in the same manner that all governmental power is susceptible of abuse.
But, at the cost of occasional inconvenience, discomfort and even
irritation to the citizen, the checkpoints during these abnormal times,
when conducted w/in reasonable limits, are part of the price we pay for an
orderly society and a peaceful community.
Personal Examination (by the judge)
SOLIVEN VS MAKASIAR
Warrant personally determined by the judge
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2)
if on the basis thereof he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases filed before their courts.
Presidents immunity from suit
The rationale for the grant to the President of the privilege of immunity from suit is
to assure the exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the office holder's time, also
demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other
person in the President's behalf. Thus, an accused in a criminal case in
which the President is complainant cannot raise the presidential privilege
as a defense to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the protection
afforded by the privilege and submit to the court's jurisdiction. The choice of
143
had killed him, they could lawfully arrest Gerente without a warrant. If
they had postponed his arrest until they could obtain a warrant, he would
have fled the law as his two companions did.
In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a
warrant was effected one (1) day after he had shot to death two Capcom
soldiers. The arrest was held lawful by this Court upon the rationale stated by us in
People vs. Malasugui, 63 Phil. 221, 228, thus:
"To hold that no criminal can, in any case, be arrested and searched for
the evidence and tokens of his crime without a warrant, would be to leave
society, to a large extent, at the mercy of the shrewdest, the most expert,
and the most depraved of criminals, facilitating their escape in many
instances."
SEARCH AND SEIZURE IS VALID EVEN WITHOUT A WARRANT WHEN MADE
AS AN INCIDENT TO LAWFUL ARREST
The search conducted on Gerente's person was likewise lawful because it was made
as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of
the Revised Rules of Court which provides:
SECTION 12. Search incident to lawful arrest. A person lawfully arrested may
be searched for dangerous weapons or anything which may be used as
proof of the commission of an offense, without a search warrant.
The frisk and search of appellant's person upon his arrest was a
permissible precautionary measure of arresting officers to protect
themselves, for the person who is about to be arrested may be armed and
might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S.
143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was
ruled that "the individual being arrested may be frisked for concealed weapons that
may be used against the arresting officer and all unlawful articles found in his
person, or within his immediate control may be seized."
Custodial Investigations (Section 12)
Section 12.
1.
Any person under investigation for the commission of an
offense shall have the right to be informed of his right to
remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the
presence of counsel.
2.
No torture, force, violence, threat, intimidation, or
any other means which vitiate the free will shall be used
145
investigation
conducted
by
law
enforcer
The Fruit of the Poisonous Tree Doctrine all evidence (the fruit) derived
from an illegal search (the poisonous tree) must be suppressed, whether it
was obtained directly through the illegal search itself, or indirectly using information
obtained in the illegal search
But For Test or taint doctrine; the evidence would not have come to light
but for the illegal action of the police
WHEN CUSTODIAL INVESTIGATION BEGINS:
Restrictive View limited to in-custody interrogations as when the accused
has been arrested and brought to the custody of the police for
questioning
Expanded View contemplates two situations: (1) general inquiry as to
identification, circumstances of a crime without focus on any
particular suspect; and (2) suspicion is focused on a
particular person and questions are asked from him to
elicit admissions or information
**Under the expanded view, general inquiry as to identification, like in a police lineup, is not considered part of custodial investigation hence the accused may be
identified by a witness in a police line-up even if made not in the presence of
counsel
NOT PART OF CUSTODIAL INVESTIGATION:
Police line-up, or during process of identification
Spontaneous statement not elicited through questioning, but given in an
ordinary manner (spur-of-the-moment statements) res gestae
146
Volunteered statements
Extrajudicial admission to the prosecutor or a private person
Investigation made by a citizen or private security officer
Miranda Doctrine: Rights Under Custodial Investigation
Miranda vs. Arizona, 16 L. Ed 2d 694
Our holding will be spelled out with some specificity in the pages which follow, but,
briefly stated, it is this: the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. By custodial investigation, we mean
questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way. As for the procedural safeguards to be employed, unless other
fully effective means are devised to inform accused persons of their right of silence
and to assure a continuous opportunity to exercise it, the following measures are
required: Prior to any questioning, the person must be warned that he has the right
to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either retained
or appointed. The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in
any manner and at any stage of the process that he wishes to consult with an
attorney before speaking, there can be no questioning. Likewise, if the individual is
alone and indicates in any manner that he does not wish to be interrogated, the
police may not question him. The mere fact that he may have answered some
questions or volunteered some statements on his own does not deprive him of the
right to refrain from answering any further inquiries until he has consulted with an
attorney and thereafter consents to be questioned.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx
Q: COA auditor investigated certain anomalies in the accounts of a
government agency. He questioned X, a public employee therein, without
benefit of counsel. Are Xs statements admissible?
A: Yes. A COA auditor is not a law enforcer.
Q: Miguel, an AFP major, arrested B and questioned him without benefit of
counsel. Admissible?
A: Yes. An AFP member is not a law enforcer.
Q: H, a police officer, and husband of W, saw the latter cheating on him
with her paramour. The paramour was able to escape while W was
detained by H and then questioned. Later, H filed a case for adultery
against W and used her statement as evidence. Admissible?
147
A: Yes. Even if H is a police officer, the time when he questioned W, his wife, he was
not acting in his official capacity as a police officer but in his personal capacity as
her husband.
Q: X, the accused in a case for rape, was asked to provide the police
investigating team with samples of his DNA. He did so without assistance
of counsel. Admissible?
A: Yes. The act of providing samples for identification is a mere mechanical act, not
covered by the right against self-incrimination.
Q: If in the above case, X was also made to sign booking sheets and police
reports, also without counsel. Admissible?
A: No. Handwriting is not a mere mechanical act.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx
RIGHT TO REMAIN SILENT
Refers not only to testimonial confessions but also to acts
But does not apply to acts that are merely mechanical (does not require use of
intelligence) or to general questions
MECHANICAL ACTS:
Paraffin test
DNA test
Examination of physical body
Fingerprinting
Being asked to step on a footprint to compare foot size
NOT MECHANICAL:
Handwriting
Initials on marked money
Signing of inventory receipts in search warrant (see People vs. Go)
Reenactment
PEOPLE VS GALIT
-
At the time the person is arrested, it shall be the duty of the arresting officer
to inform him of the reason for the arrrest and he must be shown the warrant
of arrest, if any; he shall be informed of his constitutional rights to remain
silent and to counsel, and that any statement he might make could be used
against him. The person arrested shall have the right to communicate with
his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible - or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it that this is accomplished. No
custodial investigation shall be conducted unless it be in the presence of
counsel engaged by the person arrested, by any person on his behalf, or
appointed by the court upon petition either of the detainee himself or by
anyone on his behalf. The right to counsel may be waived but the wiaver
shall not be valid unless made with the assistance of counsel. Any statement
148
rights and was present all throughout the giving of the testimony. That he signed
the statement given by the accused. Lawyer from the Public Attorneys Office is
expected to be watchful and vigilant to notice any irregularity in the manner of the
investigation and the physical conditions of the accused. The post mortem findings
shows that the cause of death Asphyxia by manual strangulation; Traumatic Head
injury Contributory substantiate. Consistent with the testimony of the accused that
he pushed the victim and the latters head hit the table and the victim lost
consciousness.
Accused pleaded not guilty but was proven guilty on account of his extrajudicial
confession;
Issue:
Was the confession valid and admissible in court?
Held:
Confession is held to be true absent any factors affecting the validity of its
acquisition
There being no evidence presented to show that said confession were obtained as a
result of violence, torture, maltreatment, intimidation, threat or promise of reward
or leniency nor that the investigating officer could have been motivated to concoct
the facts narrated in said affidavit; the confession of the accused is held to be true,
correct and freely or voluntarily given.
Appellants defense is highly improbable; in the words of Vice-Chancellor
Van Fleet of New Jersey:
Evidence to be believed must not only proceed from the mouth of a credible
witness, but must be credible in itself- such as the common experience and
observation of mankind can approve as probable under the circumstances.
We have no test of the truth of human testimony, except its conformity to our
knowledge, observation and experience. Whatever is repugnant to these belongs to
the miraculous, and is outside of judicial cognizance.
Procedure, guidelines and duties which a law enforcement officer must
observe at the time of making an arrest and again at and during the time
of the custodial interrogation in accordance with the Constitution,
jurisprudence and Republic Act No. 7438;
1. The person arrested, detained, invited or under custodial investigation must
be informed in a language known to and understood by him of the reason
for the arrest and he must be shown the warrant of arrest, if any; Every other
warnings, information or communication must be in a language known to and
understood by said person;
2. He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;
150
3. He must be informed that he has the right to be assisted at all times and
have the presence of an independent and competent lawyer, preferably of
his own choice;
4. He must be informed that if he has no lawyer or cannot afford the
services of a lawyer, one will be provided for him; and that a lawyer may
also be engaged by any person in his behalf, or may be appointed by the court
upon petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must be informed
that no custodial investigation in any form shall be conducted except in
the presence of his counsel or after a valid waiver has been made;
6. The person arrested must be informed that, at any time, he has the right to
communicate or confer by the most expedient means telephone,
radio, letter or messenger with his lawyer (either retained or appointed),
any member of his immediate family, or any medical doctor, priest or minister
chosen by him or by any one from his immediate family or by his counsel, or be
visited by/confer with duly accredited national or international non-government
organization. It shall be the responsibility of the officer to ensure that
this is accomplished;
7. He must be informed that he has the right to waive any of said rights
provided it is made voluntarily, knowingly and intelligently and ensure
that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be
informed that it must be done in writing AND in the presence of counsel,
otherwise, he must be warned that the waiver is void even if he insist on his
waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any
manner at any time or stage of the process that he does not wish to be
questioned with warning that once he makes such indication, the police may
not interrogate him if the same had not yet commenced, or the interrogation
must ceased if it has already begun;
10.The person arrested must be informed that his initial waiver of his right to
remain silent, the right to counsel or any of his rights does not bar him from
invoking it at any time during the process, regardless of whether he may
have answered some questions or volunteered some statements;
11.He must also be informed that any statement or evidence, as the case
may be, obtained in violation of any of the foregoing, whether inculpatory or
exculpatory, in whole or in part, shall be inadmissible in evidence.
PEOPLE VS BASAY
151
PEOPLE VS PAMON
Accused was charged with murder; he executed an extrajudicial confession which
he later retracted during the trial on the ground that he was not given a counsel of
his own choice; the trial court upheld the voluntariness of the extrajudicial
confession;
Issue:
Was the extrajudicial confession valid?
Held:
Extrajudicial admission is sustained absent any proof of irregularities in
its procurement
The Court upheld the admissibility of his extrajudicial Confession. A confession
constitutes an evidence of high order since it is supported by the strong
presumption that no person of normal mind would deliberately and knowingly
confess to a crime unless prompted by truth and his conscience. This presumption
of spontaneity and voluntariness stands unless the defense proves otherwise. A
confession is admissible until the accused successfully proves that it was given as a
result of violence, intimidation, threat, or promise of reward of leniency. In People
vs. Quijano, the Court dismissed the plea that the trial court erred in admitting the
accused's allegedly involuntary extrajudicial confession, and which held:
Finally, the alleged use of force and intimidation has not been substantiated by
evidence other than the statements of the appellants. As has been pointed out,
such allegation is another naive attempt of appellants to backtrack from their prior
voluntary admission of guilt. . . . .
In the case at bar, Fortunato Pamon had several chances to deny the voluntariness
of his Confession. First, when he and Atty. Rubencio Ligorio conferred; second, when
he subscribed the Confession before Judge Vicente Aseniero on March 20, 1987; and
third, when he was before the investigating officer on March 23, 1987. In the last
instance, instead of repudiating his Confession, he reaffirmed it.
Where counsel is provided for by investigators, the confession taken in
the presence of such counsel is inadmissible except where there is
conformity with the counsel provided by the investigators and the
confessant, the latter's confession is considered as valid and binding upon
him.
The evidence presented by the prosecution has adequately established that Atty.
Rubencio Ligorio was present when the confession was made and subscribed to. But
Fortunato Pamon claimed that Atty. Rubencio Ligorio was not a counsel of his
choice.
153
We are well aware of the constitutional mandate that the counsel present must not
be just any counsel, but one who has been chosen by the accused. In a recent case,
we affirmed the rule that ". . . no in-custody investigation shall be conducted
unless it be in the presence of counsel engaged by the person arrested, by
any person in his behalf or appointed by the court upon petition either of
the detainee himself or by someone in his behalf". Thus, We already had
occasion to rule that where counsel is provided for by investigators, the confession
taken in the presence of such counsel is inadmissible as evidence because it fails to
satisfy the constitutional guarantee. But this doctrine recognizes certain
exceptions. Where the counsel has been appointed by the investigators
with the conformity of the confessant, the latter's confession is
considered as valid and binding upon him. The decision in People vs. Alvarez is
also relevant to the case at bar. We said therein that "while it may be that a
lawyer was provided by the police, Alvarez never signified to have a
lawyer of his choice." Thus, the trial court's findings that Fortunato Pamon was
assisted by a counsel of his choice is hereby sustained.
Right to Bail
Art. III, Section 13
All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt
is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by
law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
Rights during trial
Art. III, Section 14
1.
No person shall be held to answer for a criminal offense
without due process of law.
2.
In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to
be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have
compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf.
However,
after
arraignment,
trial
may
proceed
notwithstanding the absence of the accused: Provided,
that he has been duly notified and his failure to appear is
unjustifiable.
154
In categorical and explicit language, the Constitution provided for but did
not create a special Court, the Sandiganbayan with "jurisdiction over criminal
and civil cases involving graft and corrupt practices and such other offenses
committed by public officers and employees, including those in governmentowned or controlled corporations, in relation to their office as may be
determined by law."
To assure that the general welfare be promoted, which is the end of law, a
regulatory measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoke the equal protection
clause only if they can show that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted by the spirit of
hostility, or at the very least, discrimination that finds no support in reason.
Classification is thus not ruled out, it being sufficient to quote from the Tuason
decision anew "that the laws operate equally and uniformly on all persons
under similar circumstances or that all persons must be treated in the
same manner, the conditions not being different, both in the privileges
conferred and the liabilities imposed. Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security shall be
given to every person under circumstances which, if not Identical, are analogous.
If law be looked upon in terms of burden or charges, those that fall within a class
should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest."
In People v. Vera, Classification to be valid, must be based on substantial
distinctions which make real differences; it must be germane to the
purposes of the law; it must not be limited to existing conditions only,
and must apply equally to each member of the class.
It follows that those who may thereafter be tried by such court ought to have
been aware as far back as January 17, 1973, when the present
Constitution came into force, that a different procedure for the accused
therein, whether a private citizen as petitioner is or a public official, is
not necessarily offensive to the equal protection clause of the
Constitution. Petitioner, moreover, cannot be unaware of the ruling of this
Court in Co Chiong v. Cuaderno, a 1949 decision, that the general
guarantees of the Bill of Rights, included among which are the due
process of law and equal protection clauses must "give way to [a]
specific provision, " in that decision, one reserving to "Filipino citizens of the
operation of public services or utilities." The scope of such a principle is not to be
constricted. It is certainly broad enough to cover the instant situation.
155
MARQUEZ VS COMELEC
Please checktoo many Marquez cases, each doesnt make any sense
Right to be heard
PEOPLE VS AGBAYANI (PRE-ARRAIGNMENT GUIDELINES)
Issue:
Whether or not, at the time appellant was arraigned, the trial court informed him of
his right to be assisted by an attorney, under section 3 of Rule 112 of the Rules of
Court.
Held:
Since appellant has miserably failed to show that he was not informed of
his right to counsel, the presumptions that the law has been obeyed and
official duty has been regularly performed by the trial court stands. In
other words, the trial court is presumed to have complied with its four-fold duties
under Section 6[32] of Rule 116 of the Rules of Court, namely,
1. to inform the accused that he has the right to have his own
counsel before being arraigned;
2. after giving such information, to ask accused whether he
desires the aid of counsel;
3. if he so desires to procure the services of counsel, the court
must grant him reasonable time to do so; and
4. if he so desires to have counsel but is unable to employ one,
the court must assign counsel de oficio to defend him.
156
It is settled that the failure of the record to disclose affirmatively that the
trial judge advised the accused of his right to counsel is not sufficient
ground to reverse conviction. The reason being that the trial court must be
presumed to have complied with the procedure prescribed by law for the hearing
and trial of cases, and that such a presumption can only be overcome by an
affirmative showing to the contrary. Thus it has been held that unless the contrary
appears in the record, or that it is positively proved that the trial court failed to
inform the accused of his right to counsel, it will be presumed that the accused was
informed by the court of such right.
In United States v. Labial, in the sense that unless the contrary appears in the
records, it will be presumed that the defendant was informed by the court of his
right to counsel. ***
The cases of People v. Domenden and People v. Cachero cited by appellant are
inapplicable. In both casis the trial courts there clearly failed to inform the accused
of their right to counsel nor appoint de oficio counsel during the arraignment.
Nevertheless, we take this opportunity to admonish trial courts to ensure that their
compliance with their pre-arraignment duties to inform the accused of his right to
counsel, to ask him if he desires to have one, and to inform him that, unless he is
allowed to defend himself in person or he has counsel of his choice, a de oficio
counsel will be appointed for him, must appear on record.
Turning to the alleged violation of appellants right to the 2-day period to prepare
for trial, Section 9 of Rule 116 of the Rules of Court reads:
Sec. 9.
Time to prepare for trial. -- After a plea of not guilty, the
accused is entitled to two (2) days to prepare for trial unless the court for
good cause grants him further time.
It must be pointed out that the right must be expressly demanded. Only
when so demanded does denial thereof constitute reversible error and a
ground for new trial. Further, such right may be waived, expressly or impliedly.
[43] In the instant case, appellant did not ask for time to prepare for trial, hence, he
effectively waived such right.
Right to Speedy Disposition
Art. III, Section 16.
All persons shall have the right to a speedy disposition
of their cases before all judicial, quasi-judicial, or administrative
bodies.
Privilege against Self-Incrimination
Art. III, Section 17
himself.
BILL OF ATTAINDER
157
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RIGHT TO BE HEARD
Right to be present at the trial
Limited only to trial court proceedings and only to the actual trial therein, not to
appellate proceedings or proceedings subsequent to the entry of final judgment,
looking only to the execution of the sentence
GENERAL RULE: Accused may waive his right to be present during trial
EXCEPTIONS: (Presence of Accused is Mandatory)
Arraignment and plea presence of lawyer is also indispensable
NOTA BENE:
Right to counsel
not waivable
the right to be represented by counsel is ABSOLUTE, but the option of the
accused to hire one of his own choice is LIMITED
a judge who had conducted the preliminary investigation and made a finding of
probable cause is not disqualified from trying the case, in the absence of
evidence of partiality
Right of confrontation
Available only during trial, not during preliminary investigation
REASON: so defendant may make objection to the witness or so witness may
identify him
Right to cross-examine
if the defense counsel deferred cross-examination of the prosecution witness and
then this witness dies, accused cannot anymore ask the witness direct examination
to be expunged from the records since the denial of the right to confrontation is
through no fault of plaintiff
EXCEPTIONS:
Dying Declaration
Trial in absentia - REQUISITES: (1) accused has been arraigned; (2) accused
has been duly notified of the date of trial; (3) failure of the accused to
appear is unjustified
Depositions - witness is dead, insane or otherwise cannot be found, with due
diligence, in the Philippines
NOTA BENE: If the accused is acquitted on ground of denial of his right to speedy
trial, it is a judgment on the merits and therefore, first jeopardy
attaches.
Impartial - cold neutrality of an impartial judge; absence of bias or prejudice
Public - open to the free observation of all
- EXCEPT: evidence to be adduced at the trial is of such character as to be offensive
to decency and public morals
SECTION 17
Right Against Self-Incrimination
Sec. 17: No person shall be compelled to be a witness against himself.
RATIONALE:
Public policy
160
Humanity
GENERAL RULE: The accused cannot be compelled to testify against his coaccused under the theory that the act of one is the act of all.
EXCEPTIONS:
If he is discharged as a state witness
After he is convicted or acquitted
By trying him separately instead of jointly with his other co-accused
IV. SUBSTANTIVE RIGHTS UNDER DUE PROCESS
Privilege of Writ of Habeas Corpus
Section 15 The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion or rebellion, when the public safety
requires it.
RIGHTS OF AN ACCUSED
Before Criminal Prosecution: (before arraignment)
1. Right to due process (Sec. 14(1))
2. Custodial rights (Sec. 12)
3. Right to be informed of his rights
4. Right to remain silent
5. Right to counsel
6. Right to bail (Sec. 13)
7. Right to speedy disposition of his case (Sec. 16)
8. Right of free access to the courts
During Criminal Prosecution: (after arraignment up to promulgation of
judgment)
1. Right to presumption of innocence (Sec. 14(2))
2. Right to be heard by himself and counsel (Sec. 14(2))
3. Right to be informed of the nature and cause of accusation against him (Sec.
14(2))
4. Right to have speedy, impartial and public trial (Sec. 14(2))
5. Right to confrontation (Sec. 14(2))
6. Right to have compulsory process to secure attendance of witnesses and
production of evidence on his behalf (Sec. 14(2))
7. Right against self-incrimination (Sec. 17)
8. Right against double jeopardy (Sec. 21)
9. 9.Right against ex-post facto law and bill of attainder (Sec. 22)
After Conviction:
Right against excessive fines and cruel, degrading or inhuman punishment
(Sec. 19)
161
164
NOTA BENE:
Consent means approval, acquiescence, conformity, agreement, etc. Mere
silence of the accused should not be construed as consent.
Even if the motion to dismiss was filed by the accused, the dismissal is
equivalent to acquittal if it is grounded on (1) insufficiency of
evidence (demurrer to evidence after prosecution has rested its
case); (2) denial of the right to speedy trial
Supervening Facts when the second offense was not in existence when
the first offense was charged and tried, then another information may be filed
or the present information may be amended (substantial)
2. Act Punished by a Law and Ordinance (Second sentence of Sec. 21)
this will only apply if the accused has been either convicted or acquitted
if the case was only dismissed not upon the merits, the prosecution may refile
AFFIRMATIVE RIGHTS
Section 11
Free access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty.
Section 12
1. Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived except in writing and in the
presence of counsel.
2. No torture, force, violence, threat, intimidation, or any other means
which vitiate the free will shall be used against him. Secret detention
places, solitary, incommunicado, or other similar forms of detention
are prohibited.
3. Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.
166
4. The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to the
rehabilitation of victims of torture or similar practices, and
their families.
Comelec issued a resolution to restrain ABS-CBN from conducting exit polls which
according to them might conflict with the official Comelec count, as well as the
unofficial quick count of the National Movement for Free Elections (Namfrel). It also
noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the
exit survey.
Issue:
Whether or not the Respondent Commission acted with grave abuse of discretion
amounting to a lack or excess of jurisdiction when it approved the issuance of a
restraining order enjoining the petitioner or any [other group], its agents or
representatives from conducting exit polls during the May 11 elections.
Held:
Procedural Issues: Mootness and Prematurity
The issue is not totally moot. While the assailed Resolution referred
specifically to the May 11, 1998 election, its implications on the
people's fundamental freedom of expression transcend the past
election. The holding of periodic elections is a basic feature of our democratic
government. By its very nature, exit polling is tied up with elections. To set aside
the resolution of the issue now will only postpone a task that could well crop up
again in future elections.
This Court, however, has ruled in the past that this procedural requirement may
be glossed over to prevent a miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or
resolution sought to be set aside is a nullity, or when the need for relief
is extremely urgent and certiorari is the only adequate and speedy remedy
available.
are exercises that are separate and independent from the exit polls. The
holding and the reporting of the results of exit polls cannot undermine
those of the elections, since the former is only part of the latter. If at all,
the outcome of one can only be indicative of the other.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity
and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not
seek access to the ballots cast by the voters. The ballot system of voting is not at
issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through
voter identification. Thus, voters are prohibited from exhibiting the contents of their
official ballots to other persons, from making copies thereof, or from putting
distinguishing marks thereon so as to be identified. Also proscribed is finding out
the contents of the ballots cast by particular voters or disclosing those of disabled
or illiterate voters who have been assisted. Clearly, what is forbidden is the
association of voters with their respective votes, for the purpose of
assuring that the votes have been cast in accordance with the instructions
of a third party. This result cannot, however, be achieved merely through the
voters' verbal and confidential disclosure to a pollster of whom they have voted for.
In exit polls, the contents of the official ballot are not actually exposed.
Furthermore, the revelation of whom an elector has voted for is not
compulsory, but voluntary. Voters may also choose not to reveal their identities.
Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so
as to minimize or suppress incidental problems in the conduct of exit polls, without
transgressing the fundamental rights of our people.
NOTA BENE:
CONTENT BASED RESTRICTIONS ARE IMPOSED BECAUSE OF THE CONTENT OF THE
SPEECH AND ARE THEREFORE, SUBJECT TO THE CLEAR AND PRESENT DANGER
TEST;
CONTENT NEUTRAL RESTRICTIONS ARE THOSE WHICH PROHIBIT THE SALE OR
DONATION OF PRINT SPACE AND AIR TIME TO POLITICAL CANDIDATES DURING THE
CAMPAIGN PERIOD, AND ARE NOT CONCERNED WITH THE CONTENT OF THE
SPEECH.
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OBSCENITY
MILLER VS CALIFORNIA
171
GONZALES VS KALAW-KATIGBAK
The film Kapit sa Patalim was classified as for adults only. Petitioner contends that
such classification was without basis since it is exercised as impermissible restraint
of artistic expression. The film is an integral whole and all its portions, including
those to which the Board now offers belated objection, are essential for the integrity
of the film.
Issue:
Is the classification valid?
Held:
Nota bene:
The power of the board is limited only to classification and not to the issuance or
denial of permit because that is a previous restraint tantamount to censorship.
FREEDOM OF ASSEMBLY
(CALIBRATED PRE-EMPTIVE RESPONSE)
KMP VS ERMITA, GR NO. 169838
173
Petitioners argue that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other
human rights treaties of which the Philippines is a signatory. They argue that B.P.
No. 880 requires a permit before one can stage a public assembly regardless of the
presence or absence of a clear and present danger. It also curtails the choice of
venue and is thus repugnant to the freedom of expression clause as the time and
place of a public assembly form part of the message for which the expression is
sought. Furthermore, it is not content-neutral as it does not apply to mass actions
in support of the government. Also, the phrase maximum tolerance shows that
the law applies to assemblies against the government because they are being
tolerated. Furthermore, the law delegates powers to the Mayor without providing
clear standards. Finally, petitioners KMU, et al., argue that the Constitution sets no
limits on the right to assembly and therefore B.P. No. 880 cannot put the prior
requirement of securing a permit. And even assuming that the legislature can set
limits to this right, the limits provided are unreasonable: First, allowing the Mayor
to deny the permit on clear and convincing evidence of a clear and present danger
is too comprehensive. Second, the five-day requirement to apply for a permit is too
long as certain events require instant public assembly, otherwise interest on the
issue would possibly wane.
Held:
The right of peaceful assembly enjoys primacy in the hierarchy of rights.
The first point to mark is that the right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of expression, and of the
press, a right that enjoys primacy in the realm of constitutional protection. For
these rights constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected. Again, in
Primicias v. Fugoso, the Court likewise sustained the primacy of freedom
of speech and to assembly and petition over comfort and convenience in
the use of streets and parks.
Right of peaceable assembly however, is not absolute
In Primicias, this Court said: The right to freedom of speech, and to peacefully
assemble and petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the constitutions of
democratic countries. But it is a settled principle growing out of the nature
of well-ordered civil societies that the exercise of those rights is not
absolute for it may be so regulated that it shall not be injurious to the
equal enjoyment of others having equal rights, nor injurious to the rights
of the community or society. The power to regulate the exercise of such and
other constitutional rights is termed the sovereign police power, which is the
power to prescribe regulations, to promote the health, morals, peace, education,
good order or safety, and general welfare of the people. This sovereign police
174
176
consciousness and form of government are part of the school curricula. Therefore,
expulsion due to religious beliefs is unjustified.
Petition for Certiorari and Prohibition is GRANTED. Expulsion is ANNULLED.
VII. NON-IMPAIRMENT CLAUSE
Art. III, Section 10
passed.
6.
7.
The principle that states shall fulfill in good faith the obligation
assumed by them in accordance with the Charter. (cf. fifth (5th)
Introductory Clauses of the "Declaration" in Merlin M. Magallona, 96).
WHAT IS INTERNATIONAL LAW?
It is a body of rules and principles of action which are binding upon civilized
states in their relations to one another.
The law which defines the conduct of states and of international
organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical;
Some theories about international law
Command theory
Law consists of commands originating from a sovereign and backed up by
threats of sanction if disobeyed
Consensual theory
International law derives its binding force from the consent of states. Treaties
are an expression of consent; likewise, custom, as voluntary adherence to
common practices, are seen as expression of consent;
Natural law theory
Law is derived by reason from the nature of man. Most customary laws are
derivations from natural laws;
179
Note:
International law is law because it is seen as such by states and other
subjects of international law;
Public international law governs the relations between and among states as
well as international organizations and individual persons;
Private international law domestic law which deals with cases where foreign
law intrudes in the domestic sphere, where there are questions of the
applicability of foreign law or the role of foreign courts;
SOURCES OF INTERNATIONAL LAW
a.
international conventions, whether general or particular, establishing
rules expressly recognized by contesting states
b.
law
c.
d.
subject to the provisions of Art. 59 the decision of the Court has no
binding force except between the parties and in respect to that particular
case. Judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of
rules of law
Paras categorizes "subjects in international law" into two (2) categories: (a) the
complete or perfect international personality, and (b) the incomplete or imperfect,
or qualified or quasi-international personality. (Paras, 47).
He classifies states into the following species: (a) single or simple state (e.g.,
Philippines), and (b) composite state.
The 1933 Monteviedo Convention on the Rights and Duties of States provides for
the legal characteristics of a State, thus:
"The State as a person of international law should possess the following
qualifications:
a. a permanent population;
b. a defined territory;
c. government;
d. and capacity to enter into relations with other States." (cf. Magallona,
20).
The "capacity to enter into relations with other States" refers to independence,
which many highly qualified publicists consider as the decisive criterion of
statehood. (Magallona, 20-21).
RECOGNITION is considered as "the act by which another State acknowledges that
the political entity recognized possesses the attributes of statehood." (Magallona,
21, citing Jessup, Modern Law of Nations: An Introduction, 1949, p. 4).
There are two theories on the nature and effect of recognition, as
discussed by Magallona (at pp. 22-22):
The constitutive school maintains that it is the act of recognition
which constitutes or creates the status of a State as a subject of law
and thus gives it a legal personality. The international status of any entity
as a State is to be determined by the will and consent of already existing States.
The declaratory theory asserts that recognition merely confirms the
acceptance by States of the status of an entity as a State. A new State
acquires legal personality by its own creative act in bringing about the
objective criteria of statehood, rather than by the subjective act of other
States.
The declaratory school is the preferred approach, the prevailing view being that
recognition is not an element of statehood.
Paras, Coquia and Defensor-Santiago classify the different kinds of composite states
as follows:
1. The Federation or Federal State (such as the United States and the United
States of Switzerland);
182
1. the Charter of the United Nations Organization, and the Universal Declaration
of Human Rights;
2. the Nuremberg and Tokyo War Tribunals for War Crimes;
3. the norm of general international law which prohibits piracy;
184
186
3.
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Nota bene:
Q
ANS: Under the 1987 Constitution, international law can become part of the sphere
of domestic law either by transformation or incorporation. The transformation
method requires that an international law be transformed into a domestic
law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.
Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the Constitution which provides that no treaty or
international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the members of the Senate. Thus, treaties or
conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to
domestic conflicts. (Pharmaceutical & Health Care Assn. of the Phil. v. Health
Secretary Duque, et al., G.R. No. 173034, October 19, 2007).
Q May generally accepted principles of international law form part of
the law of the land even if they do not derive from treaty obligations?
Explain.
ANS: Yes. Generally accepted principles of international law, by virtue of
the incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules accepted as binding
result from the combination of two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring it. (Mijares v. Ranada,
G.R. No. 139325, April 12, 2005, 455 SCRA 397).
Q
State the concept of the term generally accepted principles of
international law and give examples.
190
ANS:
Custom or customary international law means a general and
consistent practice of states followed by them from a sense of legal
obligation (opinion juris). This statement contains the two basic elements of
custom: the material factor, that is, how states behave, and the
psychological or subjective factor, that is, why they behave the way they
do.
The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of the
practice of states.
The required duration can be either short or long.
Duration therefore is not the most important element. More important is
the consistency and the generality of the practice.
Once the existence of state practice has been established it becomes necessary to
determine why states behave the way they do. Do states behave the way they
do because they consider it obligatory to behave thus or do they do it only
as a matter of courtesy? Opinio juris or the belief that a certain form of behavior
is obligatory, is what makes practice an international rule. Without it, practice is not
law. (Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et
al., G. R. No. 173034, October 9, 2007).
Q
ANS:
Soft law is an expression of non-binding norms, principles and
practices that influence state behavior. (David Fidler, Development Involving
191
SARS, International Law & Infections Disease Control at the Fifty-Six Meeting of the
World Health Assembly, June 2003, ASIL; Pharmaceutical & Health Care Assn. of the
Phils. v. Health Secretary Duque, et al., G.R. No. 173034, October 9, 2007). It does
not fall under the international law set forth in Article 38, Chapter III of the 1946
Statute of the International Court of Justice.
Q
ANS: Certain declarations and resolutions of the UN General Assembly fall under
this category. (Louis Henkins, et al., International Law, Cases and Materials, 2nd
Ed.). The UN Declaration of Human Rights is an example. This was applied in
Government of Hongkong Special Administrative Region v. Olalia; Mejoff v. Director
of Prisons; 90 Phil. 70 (1951); Mijares v. Ranada; Shangri-la International Hotel
Management Ltd. v. Developers Group of Companies Inc., G.R. No. 159938, March
31, 2006, 486 SCRA 405).
It is resorted to in order to reflect and respond to the changing needs and demands
of constituents of certain international organizations like the WHO.
THE COUNT BERNADOTTE CASE
The question concerning reparation for injuries suffered in the service of the United
Nations, was referred to the Court by the General Assembly of the United Nations
(Resolution of the General Assembly dated December 3rd. 1948) in the following
terms:
I.
II.
In the event of an affirmative reply on point I (b), how is action by the United
Nations to be reconciled with such rights as may be possessed by the State
of which the victim is a national?
Held:
Accordingly the Court concludes that the Organization possessing as it does rights
and obligations, has at the same time a large measure of international personality
and the capacity to operate upon an international plane, although it is certainly not
a super-state
On the first point:, I (a), of the Request for Opinion the Court unanimously reached
the conclusion that the Organization has the capacity to bring an
international claim against a State (whether a Member or non-member) for
192
193
All human beings are born free and equal in dignity and rights.They are
endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.
Article 2.
Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status. Furthermore, no distinction shall be
made on the basis of the political, jurisdictional or international status
of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of
sovereignty.
Article 3.
Article 4.
Article 5.
Article 6.
the law.
Article 7.
Article 8.
Article 9.
All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection
against any discrimination in violation of this Declaration and against
any incitement to such discrimination.
194
Article 10.
Article 11.
1. Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which
he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act
or omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the
time the penal offence was committed.
Article 12.
Article 13.
Article 14.
(1) Everyone has the right to seek and to enjoy in other countries
asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely
arising from non-political crimes or from acts contrary to the purposes
and principles of the United Nations.
Article 15.
Article 16.
(1) Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and
at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of
the intending spouses.
(3) The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State.
Article 17. (1) Everyone has the right to own property alone as well as in
association with others.
(2) No one shall be arbitrarily deprived of his property.
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Article 18.
Article 19.
Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and
regardless of frontiers.
Article 20. (1) Everyone has the right to freedom of peaceful assembly and
association.
(2) No one may be compelled to belong to an association.
Article 21.
(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his
country.
(3) The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be
held by secret vote or by equivalent free voting procedures.
Article 22.
Article 23.
Article 24.
Article 25.
(1) Everyone has the right to a standard of living adequate for the
health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and
the right to security in the event of unemployment, sickness, disability,
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Article 27.
(1) Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement
and its benefits.
(2) Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author.
Article 28.
Article 29.
(1) Everyone has duties to the community in which alone the free and
full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to
the purposes and principles of the United Nations.
Article 30.
All people have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.
2.
All people may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.
3.
1.
3.
All people have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.
2.
All people may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.
3.
1.
2.
The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
3.
Developing countries, with due regard to human rights and their national
economy, may determine to what extent they would guarantee the economic
rights recognized in the present Covenant to non-nationals.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of
men and women to the enjoyment of all economic, social and cultural rights set
forth in the present Covenant.
Article 4
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The States Parties to the present Covenant recognize that, in the enjoyment of
those rights provided by the State in conformity with the present Covenant, the
State may subject such rights only to such limitations as are determined by law only
in so far as this may be compatible with the nature of these rights and solely for the
purpose of promoting the general welfare in a democratic society.
Article 5
1.
2.
PART III
Article 6
1.
The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work
which he freely chooses or accepts, and will take appropriate steps to
safeguard this right.
2.
Bail is set at Php750,000.00 in cash with the condition that accused hereby
undertakes that he will appear and answer the issues raised in these
proceedings and will at all times hold himself amenable to orders and
processes of this Court, will further appear for judgment. If accused fails in
this undertaking, the cash bond will be forfeited in favor of the government;
2.
3.
4.
Issue:
Petitioner alleged that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction in admitting private respondent to
bail;
that there is nothing in the Constitution or statutory law providing that a
potential extraditee has a right to bail, the right being limited solely to criminal
proceedings.
Held:
The constitutional provision on bail does not apply to extradition
proceedings.
In Government of United States of America v. Hon. Guillermo G. Purganan, speaking
through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that
the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings,". Moreover, the
constitutional right to bail "flows from the presumption of innocence in favor of
every accused who should not be subjected to the loss of freedom as thereafter he
would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt"
(De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later
CJ). It follows that the constitutional provision on bail will not apply to a
case like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended" does not detract
from the rule that the constitutional right to bail is available only in criminal
proceedings. It must be noted that the suspension of the privilege of the
writ of habeas corpus finds application "only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion"
(Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional
provision on bail merely emphasizes the right to bail in criminal proceedings for the
aforementioned offenses. It cannot be taken to mean that the right is available even
in extradition proceedings that are not criminal in nature.
At first glance, the above ruling applies squarely to private respondents case.
However, this Court cannot ignore the following trends in international law: (1) the
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trial court to determine whether private respondent may be granted bail on the
basis of "clear and convincing evidence."
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Nota bene:
a. REPRISAL is a coercive measure short of war, directed by a state
against another, in retaliation for acts of the latter and as means of
obtaining reparation or satisfaction for such acts. Reprisal involves
retaliatory acts which by themselves would be illegal. For example, for
violation of a treaty by a state, the aggrieved state seizes on the high
seas the ships of the offending state.
b. RETORSION is a legal but deliberately unfriendly act directed by a state
against another in retaliation for an unfriendly though legal act to compel
that state to alter its unfriendly conduct. An example of retorsion is
banning exports to the offending state.
c. The DECLARATORY THEORY OF RECOGNITION is a theory according to
which recognition of a state is merely an acknowledgment of the fact of its
existence. In other words, the recognized state already exists and can
exist even without such recognition. For example, when other countries
recognized Bangladesh, Bangladesh already existed as a state even
without such recognition.
d. RECOGNITION OF BELLIGERENCY is the formal acknowledgment by a
third party of the existence of a state of war between the central
government and a portion of that state. Belligerency exists when a
sizeable portion of the territory of a state is under the effective control of
an insurgent community which is seeking to establish a separate
government and the insurgents are in de facto control of a portion of the
territory and population, have a political organization, are able to maintain
such control, and conduct themselves according to the laws of war. For
example, Great Britain recognized a state of belligerency in the United
States during the Civil War,
e. CONTINENTAL SHELF of a coastal state comprises the sea-bed and
subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge
of the continental margin, or to a distance of 200 nautical miles from the
"baselines from which the breadth of the territorial sea is measured where
the outer edge of the continental shelf does not extend up to that
distance.
f. EXEQUATUR is an authorization from the receiving state admitting the
head of a consular post to the exercise of his functions. For example, if the
Philippines appoints a consul general for New York, he cannot start
206
performing his functions unless the President of the United States issues
an exequatur to him,
g. The principle of DOUBLE CRIMINALITY is the rule in extradition which
states that for a request to be honored the crime for which extradition is
requested must be a crime in both the requesting state and the state to
which the fugitive has fled. For example, since murder is a crime both in
the Philippines and in Canada, under the Treaty on Extradition between
the Philippines and Canada, the Philippines can request Canada to
extradite a Filipino who has fled to Canada.
h. PROTECTIVE PERSONALITY principle is the principle by which the state
exercise jurisdiction over the acts of an alien even if committed outside its
territory, if such acts are adverse to the interest of the national state.
i. INNOCENT PASSAGE means the right of continuous and expeditious
navigation of a foreign ship through the territorial sea of a state for the
purpose of traversing that sea without entering the internal waters or
calling at a roadstead or port facility outside internal waters, or
proceeding to or from internal waters or a call at such roadstead or port
facility. The passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal state.
j. JUS COGENS is a peremptory norm of general international law
accepted and recognized by the international community as a whole as a
norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same
character, An example is the prohibition against the use of force.
SUGGESTED ANSWERS TO THE 2009 BAR EXAM QUESTIONS ON PUBLIC
INTERNATIONAL LAW
XII.
William, a private American citizen, a university graduate and frequent
visitor to the Philippines, was inside the U.S. embassy when he got into a
heated argument with a private Filipino citizen. Then, in front of many
shocked witnesses, he killed the person he was arguing with. The police
came, and brought him to the nearest police station. Upon reaching the
station, the police investigator, in halting English, informed William of his
Miranda rights, and assigned him an independent local counsel. William
refused the services of the lawyer, and insisted that he be assisted by a
Filipino lawyer currently based in the U.S. The request was denied, and
the counsel assigned by the police stayed for the duration of the
investigation.
William protested his arrest.
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[a] He argued that since the incident took place inside the U.S. embassy,
Philippine courts have no jurisdiction because the U.S. embassy grounds
are not part of Philippine territory; thus, technically, no crime under
Philippine law was committed. Is William correct? Explain your answer.
(3%)
Ans. No, William is not correct. While Article 22 of the Vienna Convention on
Diplomatic Relations provides that the premises of a diplomatic mission shall be
inviolable, and may not be entered by the police or by any other agent of the
receiving State, except with the consent of the Ambassador or the head of the
mission, it does not alter the fact, however, that such premises are still part of
Philippine territory. The concept of exterritoriality, under which diplomatic
premises are deemed to be part of the sovereign territory of the sending
State, has not been adopted in the Vienna Convention. Hence, a crime
committed on or within such premises by a private person like Williams who enjoys
no diplomatic immunity falls within the jurisdiction of Philippine courts.
XIII.
A terrorist group called the Emerald Brigade is based in the State of
Asyaland. The government of Asyaland does not support the terrorist
group, but being a poor country, is powerless to stop it.
The Emerald Brigade launched an attack on the Philippines, firing two
missiles that killed thousands of Filipinos. It then warned that more
attacks were forthcoming. Through diplomatic channels, the Philippines
demanded that Asyaland stop the Emerald Brigade; otherwise, it will do
whatever is necessary to defend itself.
Receiving reliable intelligence reports of another imminent attack by the
Emerald Brigade, and it appearing that Asyaland was incapable of
preventing the assault, the Philippines sent a crack commando team to
Asyaland. The team stayed only for a few hours in Asyaland, succeeded in
killing the leaders and most of the members of the Emerald Brigade, then
immediately returned to the Philippines.
[a] Was the Philippine action justified under the international law principle
of self-defense? Explain your answer. (3%)
Ans. Yes, the Philippine action was justified. Article 51 of the U.N. Charter
affirms the inherent right of States to individual or collective self-defence.
The terrorist group Emerald Brigade had already launched actual armed attacks on
the Philippines which killed thousands of Filipinos with a warning that more attacks
were forthcoming. Asyland, on the other hand, had failed to fulfill its obligations,
under international law, to prevent the use of its territory for the staging of terrorist
acts against the Philippines. As such, in the face of another imminent attack by the
Emerald Brigade, and it appearing that Asyland was incapable of preventing the
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XIV.
The Philippine Government is negotiating a new security treaty with the
United States which could involve engagement in joint military operations
of the two countries armed forces. A loose organization of Filipinos, the
Kabataan at Matatandang Makabansa (KMM) wrote the Department of
Foreign Affairs (DFA) and the Department of National Defense (DND)
demanding disclosure of the details of the negotiations, as well as copies
of the minutes of the meetings. The DFA and the DND refused, contending
that premature disclosure of the offers and counter-offers between the
parties could jeopardize on-going negotiations with another country. KMM
filed suit to compel disclosure of the negotiation details, and be granted
access to the records of the meetings, invoking the constitutional right of
the people to information on matters of public concern.
[a] Decide with reasons. (3%)
Ans. The suit filed by KMM should be dismissed. It is true that the details of the
treaty negotiation, including the offers and counter-offers between the Philippine
Government and United States, are matters of public concern. However, it is also
well-established in jurisprudence that neither the right to information nor the policy
of full public disclosure is absolute, there being matters which, albeit of public
concern or public interest, are recognized as privileged in nature.
As held in the recent case of Akbayan vs. Aquino (G.R. No. 170516, July 16, 2008),
the privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Supreme
Court in Chavez v. PCGG (360 Phil. 133, 764 [1998]) held that information on
inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the
sake of national interest. Even earlier, the same privilege was upheld in
Peoples Movement for Press Freedom (PMPF) v. Manglapus (G.R. No. 84642,
September 13, 1988) wherein the Supreme Court stressed that secrecy of
negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information.
[b] Will your answer be the same if the information sought by KMM pertains to
contracts entered into by the Government in its proprietary or commercial capacity?
Why or why not? (3%)
Ans. No, the answer will be different. Information pertaining to contracts
entered into by the Government in its proprietary or commercial capacity
are not covered by the doctrine of executive privilege. These information
are matters of public concern to which the people have the right to
information under Section 7 of the Bill of Rights. Under Section 7, citizens
shall be afforded access to official records, and to documents, and papers
pertaining to government transactions. Moreover, Section 28 of the Declaration of
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Principles directs the State to adopt and implement a policy of full public disclosure
of all its transactions involving public interest.
1. What is exterritoriality?
2. What is extra-territoriality?
3. What is imperium?
The right of the State to pass or enact its own laws and employ force
to secure obedience, maintain peace and order within its territorial
limits, defend the State against foreign invasion, and do any other
act of governance over its people and territory.
4. What is dominium?
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Intervention
Under the basic principles of international law:
1.
The principle that states shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations;
2.
The duty not to intervene in matters within the domestic
jurisdiction of any state, in accordance with the Charter;
3.
4.
Sovereignty
-
Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any
penal, civil and administrative proceedings, except insofar as that immunity has
been expressly waived by the Director-General of the Institute or his authorized
representatives.
IRRI enjoy(s) immunities accorded to international organizations, which
determination has been held to be a political question conclusive upon the
Courts in order not to embarass a political department of Government.
in WHO v. Hon. Benjamin Aquino:
- It is a recognized principle of international law and under our system
of separation of powers that diplomatic immunity is essentially a
political question and courts should refuse to look beyond a
determination by the executive branch of the government, and
where the plea of diplomatic immunity is recognized and affirmed by
the executive branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the
government . . . or other officer acting under his direction. Hence, in
adherence to the settled principle that courts may not so exercise their
jurisdiction . . . as to embarass the executive arm of the government in
conducting foreign relations, it is accepted doctrine that in such cases the
judicial department of (this) government follows the action of the political
branch and will not embarrass the latter by assuming an antagonistic
jurisdiction.
- Further, we held that "(t)he raison d'etre for these immunities is the
assurance of unimpeded performance of their functions by the
agencies concerned.
- The grant of immunity from local jurisdiction to . . . and IRRI is clearly
necessitated by their international character and respective purposes. The
objective is to avoid the danger of partiality and interference by the
host country in their internal workings. The exercise of jurisdiction
by the Department of Labor in these instances would defeat the very
purpose of immunity, which is to shield the affairs of international
organizations, in accordance with international practice, from political
pressure or control by the host country to the prejudice of member States of
the organization, and to ensure the unhampered the performance of their
functions.
CONSULS AND CONSULAR IMMUNITIES
Consuls are not concerned with political matters. They attend rather to
administrative and economic issues such as the issuance of visas.
The head of a consular post may be admitted through an authorization letter from
the receiving state termed an exequatur. He may be declared persona non grata by
the receiving state, and in such event would be recalled or his functions with the
consular post terminated.
Under the Vienna Convention on Consular relations, pertinent provisions relating to
their functions are the following:
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Art. 34
Art. 35
Art. 36
Art. 41
Art. 42
Art. 43
Art. 44
Art. 45
Iran did not break off diplomatic relations with the US government and in no
time declared the members of the consular staff persona non grata. They did not
employ remedies in ending the crisis. It allowed the group of militants to attack
and occupy the US Embassy by force and held the diplomatic and consular staff
hostage;
The Iranian authorities' decision to continue the subjection of the Embassy to
occupation, and of its staff to detention as hostages, gave rise to repeated and
multiple breaches of Iran's treaty obligations, additional to those already
committed at the time of the seizure of the Emtbassy (1961 Convention: Arts.
22,24,25,26,27 and 29; 1963 Convention: inter alia, Art. 33; 1955 Tkaty, Art. iI
(4)).
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Diplomatic Immunity (2000)
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Article 34
Article 35
Article 36
Article 38
Poland in 1939, and Iraq into Kuwait in 1990, wherein the aggressor used its armed
forces to invade the territory of the victim, overthrow its government and establish
a new regime in its place. Crucially, the commission of aggression causes the
aggressor to forfeit its own state rights, thereby permitting violent resistance. An
aggressor has no right not to be warred against in defence; indeed, it has the duty
to stop its rights-violating aggression.
But why do states have rights? The only respectable answer seems to be that they
need these rights to protect their people and to help provide them with the objects
of their human rights. As John Locke, and the U.S. Founding Fathers, declared:
governments are instituted among people to realize the basic rights of those
people. If governments do so, they are legitimate; if not, they have neither right nor
reason to exist. This is vital: from the moral point of view, only legitimate
governments have rights, including those to go to war. We need a theory of
legitimate governance to ground just war theory, and Aquinas perhaps saw this
more clearly than any classical member of the tradition. This connection to
legitimacy is consistent with the perspective on war offered so far: war, at its heart,
is a violent clash over how a territory and its people are to be governed.
Based on international law (see Roth), it seems like there are three basic criteria for
a legitimate government. If these conditions are met, the state in question has
rights to govern and to be left in peace. They are as follows. First, the state is
recognized as legitimate by its own people and by the international community.
There is an uncoerced general peace and order within that society, and the state is
not shunned as a pariah by the rest of the world. Second, the state avoids violating
the rights of other legitimate states. In particular, legitimate governments don't
commit aggression against other societies. Finally, legitimate states make every
reasonable effort to satisfy the human rights of their own citizens, notably those to
life, liberty and subsistence. States failing any of these criteria have no right to
govern or to go to war. We can speak of states satisfying these criteria as
legitimate, or minimally just, political communities.
Why do we need to talk about these rights? First, to give state rights moral
legitimacy and to avoid fetishizing state rights for their own sake. Second, to
describe what is wrong about aggression and why it justifies war in response.
Aggression is so serious because it involves the infliction of physical force in
violation of the most elemental entitlements people and their communities have: to
survive; to be physically secure; to have enough resources to subsist at all; to live in
peace; and to choose for themselves their own lives and societies. Aggression thus
attacks the very spine of human civilization itself. This is what makes it permissible
to resist with means as severe as war, provided the other jus ad bellum criteria are
also met. Third, talk of legitimacy is essential for explaining justice in a civil war,
wherein there isn't classical, cross-border aggression between competing countries
but, rather, a vicious fight over the one state between rival communities within a
formerly united society. The key to discerning morality in such cases revolves
around the idea of legitimacy: which, if any, side has minimal justice? Which side is
defendingor is seeking to establisha legitimate political structure in our threefold sense? That's the side which it is permissible to: a) be part of; or b) if you're an
outsider, to support.
221
How does this conception of just cause impact on the issue of armed humanitarian
intervention? This is when a state does not commit cross-border aggression but, for
whatever reason, turns savagely against its own people, deploying armed force in a
series of massacres against large numbers of its own citizens. Such events
happened in Cambodia and Uganda in the 1970s, Rwanda in 1994, Serbia/Kosovo in
1998-9 and in Sudan/Darfur from 2004 to the present. Our definitions allow us to
say it's permissible to intervene on behalf of the victims, and to attack with
defensive force the rogue regime meting out such death and destruction. Why?
There's no logical requirement that aggression can only be committed across
borders. Aggression is the use of armed force in violation of someone else's basic
rights. That someone else might be: a) another person (violent crime); b) another
state (international or external aggression); or c) many other people within one's
own community (domestic or internal aggression). The commission of aggression,
in any of these forms, causes the aggressor to forfeit its rights. The aggressor has
no right not to be resisted with defensive force; indeed, the aggressor has the duty
to stop and submit itself to punishment. If the aggressor doesn't stop, it is entirely
permissible for its victims to resort to force to protect themselvesand for anyone
else to do likewise in aid of the victims. Usually, in humanitarian intervention,
armed aid from the international community is essential for an effective resistance
against the aggression, since domestic populations are at a huge disadvantage, and
are massively vulnerable, to the violence of their own state.
Terrorists can commit aggression too. There's nothing to the concept which
excludes this: they, too, can deploy armed force in violation of someone else's basic
rights. When they do so, they forfeit any right not to suffer the consequences of
receiving defensive force in response. Indeed, terrorists almost always commit
aggression when they act, since terrorism is precisely the use of random violence
especially killing forceagainst civilians, with the intent of spreading fear
throughout a population, hoping this fear will advance a political objective. On 9/11,
the al-Qaeda terrorist group clearly used armed force, both to gain control of the
planes and then again when using the planes as missiles against the targets in The
Pentagon and The World Trade Center. This use of armed force was in violation of
America's state rights to political sovereignty and territorial integrity, and to all
those people's human rights to life and liberty. The terrorist strikes on 9/11 were
aggressiondefiantly so, deliberately modelled after Pearl Harbor. As such, they
justified the responding attack on the Taliban regime in Afghanistan. The Taliban
had sponsored and enabled al-Qaeda's attack, by providing resources, personnel
and a safe haven to the terrorist group.
An important issue in just cause is whether, to be justified in going to war, one must
wait for the aggression actually to happen, or whether in some instances it is
permissible to launch a pre-emptive strike against anticipated aggression. The
tradition is severely split on this issue. Vitoria said you must wait, since it would be
absurd to punish someone for an offense they have yet to commit. Others, like
Walzer, strive to define the exceptional criteria, stressing: the seriousness of the
anticipated aggression; the kind and quality of evidence required; the speed with
which one must decide; and the issue of fairness and the duty to protect one's
people. If one knows a terrible attack is coming soon, one owes it to one's people to
222
shift from defense to offense. The best defense, as they say, is a good offense. Why
let the aggressor have the upper hand of the first strike? But that's the very issue:
can you attack first and not, thereby, yourself become the aggressor? Can striking
first still be considered an act of defence from aggression? International law, for its
part, sweepingly forbids pre-emptive strikes unless they are clearly authorized in
advance by the UN Security Council. These issues, of course, were highlighted in the
run-up to the 2003 U.S.-led pre-emptive strike on Iraq. The U.S. still maintains, in its
National Security Strategy, the right to strike first as part of its war on terror. Many
other countries find this extremely controversial.
2. Right intention.
A state must intend to fight the war only for the sake of its just cause. Having the
right reason for launching a war is not enough: the actual motivation behind the
resort to war must also be morally appropriate. Ulterior motives, such as a power or
land grab, or irrational motives, such as revenge or ethnic hatred, are ruled out. The
only right intention allowed is to see the just cause for resorting to war secured and
consolidated. If another intention crowds in, moral corruption sets in. International
law does not include this rule, probably because of the evidentiary difficulties
involved in determining a state's intent.
3. Proper authority and public declaration.
A state may go to war only if the decision has been made by the appropriate
authorities, according to the proper process, and made public, notably to its own
citizens and to the enemy state(s). The appropriate authority is usually specified
in that country's constitution. States failing the requirements of minimal justice lack
the legitimacy to go to war.
4. Last Resort.
A state may resort to war only if it has exhausted all plausible, peaceful alternatives
to resolving the conflict in question, in particular diplomatic negotiation. One wants
to make sure something as momentous and serious as war is declared only when it
seems the last practical and reasonable shot at effectively resisting aggression.
5. Probability of Success.
A state may not resort to war if it can foresee that doing so will have no measurable
impact on the situation. The aim here is to block mass violence which is going to be
futile. International law does not include this requirement, as it is seen as biased
against small, weaker states.
6. Proportionality.
A state must, prior to initiating a war, weigh the universal goods expected to result
from it, such as securing the just cause, against the universal evils expected to
result, notably casualties. Only if the benefits are proportional to, or worth, the
costs may the war action proceed. (The universal must be stressed, since often in
223
war states only tally their own expected benefits and costs, radically discounting
those accruing to the enemy and to any innocent third parties.)
Just war theory insists all six criteria must each be fulfilled for a particular
declaration of war to be justified: it's all or no justification, so to speak. Just war
theory is thus quite demanding, as of course it should be, given the gravity of its
subject matter. It is important to note that the first three of these six rules are what
we might call deontological requirements, otherwise known as duty-based
requirements or first-principle requirements. For a war to be just, some core duty
must be violated: in this case, the duty not to commit aggression. A war in
punishment of this violated duty must itself respect further duties: it must be
appropriately motivated, and must be publicly declared by (only) the proper
authority for doing so. The next three requirements are consequentialist: given that
these first principle requirements have been met, we must also consider the
expected consequences of launching a war. Thus, just war theory attempts to
provide a common sensical combination of both deontology and consequentialism
as applied to the issue of war.
Jus in bello
Jus in bello refers to justice in war, to right conduct in the midst of battle.
Responsibility for state adherence to jus in bello norms falls primarily on the
shoulders of those military commanders, officers and soldiers who formulate and
execute the war policy of a particular state. They are to be held responsible for any
breach of the principles which follow below. Such accountability may involve being
put on trial for war crimes, whether by one's own national military justice system or
perhaps by the newly-formed International Criminal Court (created by the 1998
Treaty of Rome).
We need to distinguish between external and internal jus in bello. External, or
traditional, jus in bello concerns the rules a state should observe regarding the
enemy and its armed forces. Internal jus in bello concerns the rules a state must
follow in connection with its own people as it fights war against an external enemy.
There are several rules of external jus in bello:
1. Obey all international laws on weapons prohibition.
Chemical and biological weapons, in particular, are forbidden by many treaties.
Nuclear weapons aren't so clearly prohibited but it seems fair to say a huge taboo
attaches to such weapons and any use of them would be greeted with incredible
hostility by the international community.
2. Discrimination and Non-Combatant Immunity.
Soldiers are only entitled to use their (non-prohibited) weapons to target those who
are, in Walzer's words, engaged in harm. Thus, when they take aim, soldiers must
discriminate between the civilian population, which is morally immune from direct
and intentional attack, and those legitimate military, political and industrial targets
involved in rights-violating harm. While some collateral civilian casualties are
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consideration of them, and not merely focus on what one may do to the enemy. For
some of the worst atrocities in wartime have occurred within, and not between,
national borders. Some states, historically, have used the cloak of war with foreign
powers to engage in massive internal human rights violations, usually against some
disfavoured group. Other states, which are otherwise decent, panic amidst the
wartime situation and impose emergency legislation which turns out to have been
complete overkill, and which they later regret and view as the product of fear rather
than reason.
Jus post bellum
Jus post bellum refers to justice during the third and final stage of war: that of war
termination. It seeks to regulate the ending of wars, and to ease the transition from
war back to peace. There is little international law heresave occupation law and
perhaps the human rights treatiesand so we must turn to the moral resources of
just war theory. But even here the theory has not dealt with jus post bellum to the
degree it should. There is a newness, unsettledness and controversy attaching to
this important topic. To focus our thoughts, consider the following proposed
principles for jus post bellum:
1. Proportionality and Publicity.
The peace settlement should be measured and reasonable, as well as publicly
proclaimed. To make a settlement serve as an instrument of revenge is to make a
volatile bed one may be forced to sleep in later. In general, this rules out insistence
on unconditional surrender.
2. Rights Vindication.
The settlement should secure those basic rights whose violation triggered the
justified war. The relevant rights include human rights to life and liberty and
community entitlements to territory and sovereignty. This is the main substantive
goal of any decent settlement, ensuring that the war will actually have an improving
affect. Respect for rights, after all, is a foundation of civilization, whether national or
international. Vindicating rights, not vindictive revenge, is the order of the day.
3. Discrimination.
Distinction needs to be made between the leaders, the soldiers, and the civilians in
the defeated country one is negotiating with. Civilians are entitled to reasonable
immunity from punitive post-war measures. This rules out sweeping socio-economic
sanctions as part of post-war punishment.
4. Punishment #1.
When the defeated country has been a blatant, rights-violating aggressor,
proportionate punishment must be meted out. The leaders of the regime, in
particular, should face fair and public international trials for war crimes.
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5. Punishment #2. Soldiers also commit war crimes. Justice after war requires
that such soldiers, from all sides to the conflict, likewise be held accountable to
investigation and possible trial.
6. Compensation.
Financial restitution may be mandated, subject to both proportionality and
discrimination. A post-war poll tax on civilians is generally impermissible, and there
needs to be enough resources left so that the defeated country can begin its own
reconstruction. To beggar thy neighbor is to pick future fights.
7. Rehabilitation.
The post-war environment provides a promising opportunity to reform decrepit
institutions in an aggressor regime. Such reforms are permissible but they must be
proportional to the degree of depravity in the regime. They may involve:
demilitarization and disarmament; police and judicial re-training; human rights
education; and even deep structural transformation towards a minimally just society
governed by a legitimate regime. This is, obviously, the most controversial aspect of
jus post bellum.
The terms of a just peace should satisfy all these requirements. There needs, in
short, to be an ethical exit strategy from war, and it deserves at least as much
thought and effort as the purely military exit strategy so much on the minds of
policy planners and commanding officers.
Any serious defection, by any participant, from these principles of just war
settlement should be seen as a violation of the rules of just war termination, and so
should be punished. At the least, violation of such principles mandates a new round
of diplomatic negotiationseven binding international arbitrationbetween the
relevant parties to the dispute. At the very most, such violation may give the
aggrieved party a just causebut no more than a just causefor resuming
hostilities. Full recourse to the resumption of hostilities may be made only if all the
other traditional criteria of jus ad bellumproportionality, last resort, etc.are
satisfied in addition to just cause.
Perhaps a few additional thoughts on coercive regime change should here be
added, in light of controversial recent events, especially in Afghanistan and Iraq.
Can coercive regime change ever be justified, or is it essentially an act of
imperialism? In my view, forcible post-war regime change can be permissible
provided: 1) the war itself was just and conducted properly; 2) the target regime
was illegitimate, thus forfeiting its state rights; 3) the goal of the reconstruction is a
minimally just regime; and 4) respect for jus in bello and human rights is integral to
the transformation process itself. The permission is then granted because the
transformation: 1) violates neither state nor human rights; 2) its expected
consequences are very desirable, namely, satisfied human rights for the local
population and increased international peace and security for everyone; and 3) the
post-war moment is especially promising regarding the possibilities for reform. And
the transformation will be successful when there's: 1) a stable new regime; 2) run
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To summarize this whole section, just war theory offers rules to guide decisionmakers on the appropriateness of their conduct during the resort to war, conduct
during war and the termination phase of the conflict. Its over-all aim is to try and
ensure that wars are begun only for a very narrow set of truly defensible reasons,
that when wars break out they are fought in a responsibly controlled and targeted
manner, and that the parties to the dispute bring their war to an end in a speedy
and responsible fashion that respects the requirements of justice.
INTERNATIONAL
CONFLICT
ARMED
CONFLICT
VS
NON-INTERNATIONAL
ARMED
another, triggers the applicability of the Geneva Conventions between the two
States. [] It is also of no concern whether or not the party attacked resists. [] As
soon as the armed forces of one State find themselves with wounded or
surrendering members of the armed forces or civilians of another State on their
hands, as soon as they detain prisoners or have actual control over a part of the
territory of the enemy State, then they must comply with the relevant convention".
The German Joint Services Regulations (ZDv) 15/2 says that "an international armed
conflict exists if one party uses force of arms against another party. [] The use of
military force by individual persons or groups of persons will not suffice".
II. Non-International Armed Conflict (NIAC)
1) IHL Treaties
Two main legal sources must be examined in order to determine what a NIAC under
international humanitarian law is: a) common Article 3 to the Geneva Conventions
of 1949; b) Article 1 of Additional Protocol II:
a) Non-International Armed Conflicts within the Meaning of Common Article 3
Common Article 3 applies to "armed conflicts not of an international character
occurring in the territory of one of the High Contracting Parties". These include
armed conflicts in which one or more non-governmental armed groups are involved.
Depending on the situation, hostilities may occur between governmental armed
forces and non-governmental armed groups or between such groups only. As the
four Geneva Conventions have universally been ratified now, the requirement that
the armed conflict must occur "in the territory of one of the High Contracting
Parties" has lost its importance in practice. Indeed, any armed conflict between
governmental armed forces and armed groups or between such groups cannot but
take place on the territory of one of the Parties to the Convention. In order to
distinguish an armed conflict, in the meaning of common Article 3, from less serious
forms of violence, such as internal disturbances and tensions, riots or acts of
banditry, the situation must reach a certain threshold of confrontation. It has been
generally accepted that the lower threshold found in Article 1(2) of APII, which
excludes internal disturbances and tensions from the definition of NIAC, also applies
to common Article 3.
Two criteria are usually used in this regard:
First, the hostilities must reach a minimum level of intensity. This may be the
case, for example, when the hostilities are of a collective character or when
the government is obliged to use military force against the insurgents,
instead of mere police forces.11
Second, non-governmental groups involved in the conflict must be
considered as "parties to the conflict", meaning that they possess organized
armed forces. This means for example that these forces have to be under a
certain command structure and have the capacity to sustain military
operations.
A more restrictive definition of NIAC was adopted for the specific purpose of
Additional Protocol II. This instrument applies to armed conflicts "which take place
in the territory of a High Contracting Party between its armed forces and dissident
armed forces or other organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this Protocol". This
definition is narrower than the notion of NIAC under common Article 3 in two
aspects. Firstly, it introduces a requirement of territorial control, by providing that
non-governmental parties must exercise such territorial control "as to enable them
to carry out sustained and concerted military operations and to implement this
Protocol". Secondly, Additional Protocol II expressly applies only to armed conflicts
between State armed forces and dissident armed forces or other organised armed
groups. Contrary to common Article 3, the Protocol does not apply to armed
conflicts occurring only between non-State armed groups. In this context, it must be
reminded that Additional Protocol II "develops and supplements" common Article 3
"without modifying its existing conditions of application".14 This means that this
restrictive definition is relevant for the application of Protocol II only, but does not
extend to the law of NIAC in general. The Statute of the International Criminal Court,
in its article 8, para. 2 (f), confirms the existence of a definition of a noninternational armed conflict not fulfilling the criteria of Protocol II.
2) Jurisprudence
Case law has brought important elements for a definition of an armed conflict, in
particular regarding the non-international armed conflicts in the meaning of
common Article 3 which are not expressly defined in the Conventions concerned.
Judgments and decisions of the ICTY throw also some light on the definition of NIAC.
As mentioned above, the ICTY went on to determine the existence of a NIAC
"whenever there is [] protracted armed violence between governmental
authorities and organised armed groups or between such groups within a State".
The ICTY thus confirmed that the definition of NIAC in the sense of common Article 3
encompasses situations where "several factions [confront] each other without
involvement of the government's armed forces". Since that first ruling, each
judgment of the ICTY has taken this definition as a starting point.
3) Doctrine
Several recognized authors also commented very clearly on what should be
considered as a non-international armed conflict. Their comments are relevant in
first place to the conflicts which do not fulfil the strict criteria foreseen in Additional
Protocol II and provide useful elements to ensure the application of the guarantees
provided in common article 3 to the Geneva Conventions of 1949.
According to H.-P. Gasser, it is generally admitted that "non-international armed
conflicts are armed confrontations that take place within the territory of a State
between the government on the one hand and armed insurgent groups on the other
hand. [] Another case is the crumbling of all government authority in the country,
as a result of which various groups fight each other in the struggle for power"18.
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Philippine
and Trade
under the
WTO, the
UNCITRAL
Composed of a diverse composition of member States, the UNCITRAL carries out
the goals of harmonizing and unifying international trade laws.16 The
233
Proceedings (Articles 15-30), and Section IV The Award (Articles 31-41) In Section
I, the Rules set out the basic prerequisites for arbitration, such as the requirement
of writing, conveniently supplying the prospective parties to a contract (and, ergo,
to a dispute) with a model arbitration clause in a note to Article 1. Section II calls for
the selection of an odd number of one (1) to three (3) arbitrators, three (3) being
the default rule (Article 5). With respect to the appointment of arbitrators, the Rules
had to provide a solution for the composition of the tribunal in the absence of
consensus by the parties since UNCITRAL is not an institution. Hence, the Rules
introduced the notion of a party-agreed upon appointing authority (or, if parties
cannot agree, either party may request the Secretary General of the Permanent
Court of Arbitration at the Hague to designate an appointing authority). In
appointing the sole or the third arbitrator, the so-called list procedure, a concept
borrowed from the AAA practice,46 shall be used.47 The issues of challenging
procedure, covered in Articles 9- 12, center on the standard of justifiable doubts as
to . . . impartiality or independence. Article 10 clarifies that these standards apply
to party-appointed arbitrators, whereas paragraph 2 allows for a challenge of a
partys own arbitrator, though not unconditionally.
The Rules cover the arbitral proceedings in great detail in Section III. Skipping the
provisions regarding the place of arbitration, language, claims, defenses,
amendments, time periods, Kompetenz- Kompetenz (Article 21(1)),48 and
separability49 (Article 21(2)), we turn to the matters of evidence and hearings in
Articles 24 and 25. The Rules do not provide for discovery, and Article 25(4) leaves
the tribunal free to determine the manner in which witnesses are examined (viz.,
whether it be under the common law tradition of examination primarily by the
lawyer and cross-examination by the other partys lawyer, or under the civil law
tradition of examination from the bench, or perhaps a mixture). Another
discrepancy between civil and common law was resolved by adhering to a civil law
norm experts are tribunal-appointed (Article 27(1)). The question of interim
measures shall be separately discussed later, but the Rules do provide for arbitraltribunal ordered measures (Article 26), and a rather narrowly defined requirement
of security for the costs of such measures. Turning to the arbitral award, Article
31 calls for a majority of arbitrators to agree, while Article 32 sets out the
requirements of writing, reasons, and signature. Consent of the parties is needed
for publication of the award.51 According to Article 33, the arbitrators may decide
on the merits either according to the applicable law designated by the parties, or
absent such designation, the law determined by the conflict of laws rules which
they consider applicable (Article 33(1)), or as amiables compositeurs, if expressly
authorized by the parties (Article 33(2)). However, the conflict of laws approach is
considered outdated and is rarely used. The Model Law approach of direct choice is
widely followed. Article 34 provides for an award on agreed terms, or award by
consent, and Articles 38-41 cover the issue of costs with the requirement that the
tribunal, when fixing its fees, shall take into account the schedule of fees of the
appointing authority (Article 39(2)). The latter was necessary, as UNCITRAL is not an
arbitral institution and, consequently, has no schedule of fees.
235